Postmortem Privacy and Plastination?

The current issue of the Journal of Medical Ethics features 'Without 'informed consent'? Ethics and ancient mummy research' by I M Kaufmann & F J Rühli, an article that has been construed by some readers - eg a comment by J Marchant in the New Scientist - as involving rights for the long-dead. Do Egyptian mummies - and presumably other dead entities - have "a right to privacy", particularly a right that overrides other rights and that can be enforced?

The authors express concern regarding the "lack of rigorous ethical discussion and scientific argumentation about ancient mummy research" (eg x-ray, MRI and DNA examination of those delightful cadavers-in-cartonnage from Pharaonic Egypt). Kaufmann & Rühli comment that the lack of discussion -

is particularly striking due to various factors. First, any modern examination on historic corpses is done a priori without informed consent of the deceased.

Quite so, unless you've booked a seance and taken off your alfoil beanie the dead don't speak. The authors go on to say -

Second, the research undertaken on such a body is often invasive either in terms of technological aspects or in terms of personality traits. The recent enormous methodological evolution — both in the social sciences and particularly in the natural sciences — allows researchers to gain more intimate information about historic personalities, often by means of 'invasive' (tissue-destroying) methods. Third, public and scientific reports about such findings do not follow the common criteria of medical privacy, by explicitly and specifically naming major diseases or causes of death of a famous ancient individual, such as a former king or pharaoh.

From an Australian legal perspective Tutankhamun, Ramses or another personage from the Nile has no privacy rights in law and - being long gone, without discernable survivors - has no means of enforcing any claims. (If you accept some of the claims by quantum mystics regarding communication with the dead, dismissed elsewhere in this blog, that may not be an issue - acceptance if consistent is presumably accompanied by belief that Tut will strike dead the impious archaeologists, MRI operators and publishers who tamper with his corpse or tell tales out of school.)

The article is characterised as an -

attempt to advance the ethical debate in ancient mummy research. The aim of our study is to conduct a stakeholder analysis showing the pro and contra arguments of ancient mummy research for the various involved interest groups (eg, the mummy itself, descendents and researchers) and with respect to various cultural concepts. The study will be theoretically based on the literature about stakeholder theory and linked to the normative theory of ethics. ... We will not consider specific short-term legalistic definitions of when a body has to be dealt with forensically as a mummy and when the legal rights of individuality expire. By identifying stakes and stakeholders of ancient mummy research, we implicitly refer to the concept of the stakeholder theory without taking the theoretical heterogeneity into account.

Well, that's a swag of problems out of the way.

Kaufmann & Rühli note that -

The international code of conduct of the International Council of Museums actually strongly encourages research on museum specimens. Thus, from a legal point of view, research on mummies, which is of benefit for the advancement of science, should be performed. Since there are no clear guidelines about how to specifically perform research on ancient mummified samples, there is no legal basis on how to best perform such studies, similar to the 'good clinical practice' — guidelines (as issued by the US Food and Drug Administration or the European Commission). In the future, mummy research guidelines shall address issues such as personal rights of the dead (medical data), who shall possess such data and how one may present it within and outside of the research community. Also, the diagnostic validity and invasiveness of the major methods used shall be addressed.

I'm inclined to think that law is not going to award privacy rights to the pharoahs or enshrine a right of integrity that reflects a recognition that "investigation methods are sometimes invasive and destroy tissue or the investigations are conducted without the informed consent of the deceased". The authors invoke Kant in favour of a right of integrity for mummies, suggesting that -

disregarding a person's right of integrity incorporates harming this person or violating their right of autonomy. With regard to ancient mummies, the problem of violation is different compared to those of a living person. Is it possible to harm the dead? Is the bodily integrity of the mummy to some extent at stake through modern research efforts? ... offending the right of integrity is as much about the possibility of harming the dead, as about the autonomy and interests of the dead. Partridge holds the view that posthumous harm is impossible because no one can retain interests after death. Levenbook is more in favour of the possibility of posthumous harm. Also Levenbook stresses the metaphysical and meta-ethical difficulties in defending a fully developed concept of posthumous harm.

The authors do acknowledge some of the challenges, noting that -

The definition of a mummy's descendants as adequate proxy decision makers is full of pitfalls, too. As Holm highlights, a culturally well informed scientist may have more ethical insights into the cultural beliefs of an ancient mummy than descendants who do not share a common cultural belief, but only ethnical proximity. In some cases, such as for the Neolithic Iceman, based on modern DNA analysis it could be proven that genetic proxies no longer exist today. Thus, 'fake' claims of descendancy could be repudiated by genetic analyses.

If undergoing an MRI is an offence against dignity, what about being plastination - the grand guignol vended by entrepreneurs such as von Hagens? One perspective is provided by Marett Leiboff's 'A Beautiful Corpse' in 19(2) Continuum (2005) 221-237 which -

considers the legal status of artistically posed human corpses that are displayed in public exhibitions, in particular in Gunther von Hagens' 1990s Bodyworlds exhibition. The uses that may be made of human bodies post mortem is a legally as well as a culturally vexed question: when does a body become an object available for exhibition or trade, and what is the difference between art and the improper use of human remains? The law, as it has been created by the courts in common law countries during the last 500 years, has sought to preserve the dignity of the human body in death. In doing so, it embedded Christian morality and practices of the seventeenth and eighteenth centuries into the body of the law itself. So, as a basic proposition, the law establishes the principle that there can be no property in a human body after death, meaning that bodies cannot be owned by anyone, while other principles indicate that bodies are not to be tampered with, and are to be treated with dignity. The status of dead bodies, it seems, is far from clear.

Leiboff goes on to comment that -

However, the law has also allowed some use to be made of bodies and body parts, provided they are used for some kind of social benefit, such as for health or educational purposes. For this reason, there are a number of permitted exceptions to the basic principles set out above, either developed through decisions of the courts or through legislation created by parliament. Some of these changes deal with the impact of new technologies, and sometimes they were instituted in order to rectify some unforeseen adverse consequence created by the general principles.

But does the law say that it is acceptable to anatomize a human corpse, and then pose it artistically in a public 'blockbuster' type of an art or science exhibition? There is no straightforward legal answer to this question. To find out if anatomized corpses can be displayed in artistic poses, such as in the state of Queensland in Australia, it is necessary to traverse the law that has developed in England, Australia, and Queensland over 500 years.

What may seem surprising is that no specific law says anything directly about the display of artistically posed anatomized corpses. For this reason, it is necessary to look at legal decisions in similar situations seemingly unrelated to the situation at hand, in order to work out what the law may say about this sort of display. This process involves looking at a broad range of laws in the countries mentioned, including criminal law, the law dealing with the ownership of objects, obscenity law, and the law dealing with the ability to access parts of bodies post mortem, such as transplantation and anatomy law. Legal decision making may also be driven, in part, by underlying moral or ethical questions that have been built into the law over time, or through recourse to liberal humanist principles such as autonomy or rights.

The kinds of legal questions that will be asked build on a range of existing legal decisions. For instance, given that there can be 'no property in a body', can their creator claim ownership of the posed corpses? For nearly 100 years the law has accepted that a modicum of skill and labour used to preserve human remains will allow them to be 'owned'. This principle comes from an Australian High Court case of 1908, and is the 'law' on this point, having been accepted by Australian and English courts. This may seem to be the beginning and the end of it — the artistically posed corpses have been preserved, so they may be owned. But the situation is not so straightforward — the decision in this case does not consider 'posed' corpses which have been subjected to some kind of enhancement or transformation. Nor does the case necessarily accept that it is permissible for a preserved body to be displayed. Law here unwittingly confronts the difficulty of trying to establish clear boundaries around the shifting cultural categories of 'art' and of 'humanity'.

Consequently, this article considers whether the law, as developed by the courts, may allow for the ownership and display of bodies that have been transformed. For this reason, it will also look at the developing law concerning the interference with a human corpse in the seemingly unrelated area of semen harvesting. The difference between a bare preservation and an active transformation of a body may be of marked significance for the development of legal rules and principles. Based on the underlying principles of the law, while preservation may be acceptable, transformative techniques may be considered unacceptable because human remains have become, in effect, nothing other than a raw material for a new, adaptive purpose, and not for a benefit or use to society. This article suggests that, if asked to answer this question, the courts in Australia may not accept the validity of this type of transformation of human remains.

Plain Paper Astroturf

Anne Davies in today's SMH comments that -

If your bulldust detector is twitching over outraged retailers warning that plain packaging for cigarettes "won't work, so why do it", you are right on the money.

The tobacco industry is not only funding the campaign being run by the Alliance of Australian Retailers to stop plain packaging being introduced, it is employing the public relations firm to run the campaign, approving who will do media interviews and managing the strategy for lobbying government.

Her generously-titled 'Big Tobacco hired public relations firm to lobby government' questions astroturfing by the cigarette industry in response to proposals for plain paper packaging of cancer sticks, highlighted earlier in this blog.

Davies suggests that Chris Argent (director of corporate affairs at Philip Morris) is controlling the advocacy campaign by the ostensibly independent Alliance of Australian Retailers -

down to approving who will do which interviews, approving the words to be used by the heads of the various retail organisations and approving email responses to journalists.

Philip Morris, rather than the Alliance, is paying for the multi-million dollar campaign, "as invoices and contracts of engagement show".

The Alliance's marketing adviser is reported as blithely commenting to the SMH that the Alliance had been upfront about funding from the tobacco industry: "This support includes the funding of professional services such as public relations".

Philip Morris Australia stated that

We are pleased to join with and support the efforts of corner shops, service stations and milk bars to stop implementation of this unproven policy which lacks any credible evidence that it will work. Our efforts with the Alliance will include ongoing financial support and public relations advice.

Support that involves the Alliance acting as a sock puppet raises questions about the credibility of the Alliance's statements and the legitimacy of its advocacy.

Those questions are significant, given the SMH's indication that the phase of the Philip Morris cum Alliance $9.37m advocacy campaign

will involve information packs and letters to all MPs in the coming weeks. Now that the minority government is confirmed, the group plans to step up a government and opposition relations strategy, to block the legislation.

Argentine exceptionalism?

'Six Reasons Why Argentina Legalized Gay Marriage First' by Javier Corrales & Mario Pecheny in Americas Quarterly discuss amendment of Argentina's civil code to permit gay marriage and adoptions, asking "Why Argentina, of all places?"

They comment that -

conventional arguments help, but only to a point. No doubt, Argentina has many of the conditions that, research has shown, go hand in hand with more pro-gay legislation. It has high levels of urbanization and schooling (the modernization hypothesis) as well as a vibrant constellation of civic organizations (the social movement hypothesis), but so do most countries in the Americas. It has a ruling party that sees itself left of center (the partisan hypothesis), but this is also true of most countries in the Americas today, including the United States. And it has a super gay-friendly main city, but this is also true of at least Brazil, Mexico, the United States, Colombia, Uruguay, Peru, and Costa Rica.

They go on to suggest six factors -

1 Catholics don’t go to Church and Evangelicals are (still) small in number ... the key statistic to know about Argentina is not so much that it is predominantly Catholic (it is), but rather that church attendance is low—approximately 22 percent of the population attends church services weekly—and secondly, that the Evangelical population is tiny (only 2 percent ). This is perhaps the most important structural difference with the United States and Mexico, where church attendance is high (approximately 45 percent) and Evangelicalism is growing. ... Low church attendance and low Evangelicalism helps predict pro-LGBT legislation because it reveals the extent of societal secularism as well as the mobilizational weakness of the churches. Argentina is distinctive on both counts.

2 separation of church and party. It is not enough to have separation of church and state, as do most countries in the region. It is vital to have separation of church and party. Although the church’s officialdom is powerful in Argentina, the country has not had a strong confessional party for the past 100 years. ... There is no party with strong connections with Evangelical groups as the Republicans in the United States (and arguably, the Labor Party in Brazil and most parties in Central America and the Anglo-Caribbean). This is one reason that so many legislators in Argentina, from all parties, risked voting against the pulpit.

3 transnational legalism. Much has been written about how globalization helps to promote LGBT rights. But Argentina shows that there is a type of globalization that is especially helpful, and which incidentally, is scarce in the United States— transnational legalism. This term refers to the ease with which a country’s legal system borrows from international cases to set legal precedents domestically. While most countries in Latin America have a strong tradition of transnational legalism, Argentina is no doubt a regional champion. It is both an avid importer of international norms (since 1994, most international human rights treaties have had constitutional status), and also a voluminous exporter of legal norms, playing active roles in helping international organizations and foreign countries bolster their human rights norms and helping countries establish "truth commissions." Thus, Argentina’s pro-LGBT forces were quite comfortable emulating norms from abroad, even borrowing verbatim wording and arguments from actors fighting elsewhere to approve LGBT rights. In the United States, this form of international emulation is frowned upon. In Argentina, it actually bolstered the emulators, in part because of the country’s tradition of transnational legalism.

4 domestic legal resources. It would be incorrect to say that Argentina’s pro-LGBT groups drew exclusively from abroad. They also drew from domestic sources. The agenda of the LGBT movement was cast as part of the country’s broader agenda on behalf of feminism, gender, reproduction, health, and sexuality. ... Furthermore, a strategy was developed by different LGBT organizations, particularly the Federación Argentina de Lesbianas, Gay, Bisexuales y Trans (Argentina Federation of Lesbians, Gays, Bisexuals and Trans) to encourage gay couples to request marriage licenses, in order to get an official refusal and then challenge the official decision on constitutional grounds. This strategy proved effective. ... The issue was framed as a question of equality before the law, the domestic law. In contrast, the Catholic Church almost took pride in presenting itself outside the law. Its discourse against LGBT folks became so aggressive and discriminatory that even those who were unsure about the morality of the bill were appalled by the extra-constitutionality of the Church’s position. The key lesson is therefore that in addition to transnational legalism, a country needs to have a well grounded legal tradition of equality, liberty and human rights, as well as a set of social movements with expertise in the use of that tradition to its advantage.

5 democracy, yes; referendum democracy, no. Perhaps the most important victory by pro-LGBT groups in Argentina was to avoid the referenda trap. Enemies of Argentina’s gay marriage legislation, including the Catholic Church, offered a populist compromise — submit the issue to a popular vote. In Latin America, at the moment, the concept of participatory democracy is in vogue. But LGBT groups and its allies in Argentina were smart to recognize the problems with this form of populism. Submitting to a majority vote questions of minority rights is inherently a biased process — against the minority group, naturally — and this makes it undemocratic despite its reliance on the popular vote.

6 the president presides. Ultimately, what made the law possible was the President's decision to take the risk of backing the bill. This courageous act is the one factor that is more ad hoc and specific to the case, and yet perhaps it was the most indispensable of all. Analysts debate why at this particular juncture president Cristina Fernández decided to take the risk of a public fight with the Church and a possible split within the ruling party. Perhaps she did this because of the Peronist tradition of confronting the Church openly (while secretly negotiating other agreements). Perhaps this is one more example of this administration’s penchant for open confrontation. Perhaps she did it because the opposition was fragmented and likely to split even more severely than the ruling party. Perhaps she did it because the government needed to recover lost ground among the young and the urbanites, who had abandoned her. Perhaps she ultimately developed a principled conviction of the correctness of gay marriage. Who knows? What matters is that the president took the risk.

Corrales & Pecheny conclude that -

the Argentine case suggests ways to refine our thinking on the conditions that make LGBT rights expand. It is important to live in a democracy, of course, but it is more important to avoid referenda democracy. It is important to have separation of church and state, but it is also vital to have secular citizens and secular parties. It is important to have a strong civil society, but civil society must operate in a pro-human rights legal environment that is both globally connected and domestically entrenched. And finally, the country’s maximum leader must show some guts.

Ultimately, gay marriage is a piece of legislation that is transforming the way we have thought of democracy for the last three centuries, and it would be disingenuous to believe that this effort can occur without courage.

Caste Classifying

The Wall Street Journal reports that in 2011 India will conduct a discrete census identifying the caste of its population.

That exercise is independent of next year's broader national population census, the data collection exercise highlighted in my 6(8) Privacy Law Bulletin (2010) article on that nation's ambitious national ID card scheme and in a recent ANZSOG law seminar paper on 'Technological Identity Gothic'.

Home Minister P Chidambaram indicated that -

A separate house-to-house enumeration of caste will be done during the period June 2011 to September 2011. This satisfies all the various requirements that have been projected and discussed and debated extensively.

The caste census is estimated to cost around US$650 to $850 million.

Identification of caste in a national census represents a major policy shift, with caste identity data not having been collected on a comprehensive scale for over 50 years.

The WSJ indicates that the national government has not provided a specific rationale for polling people on their caste, although proponents reportedly claim that the information will facilitate the delivery of income support and other welfare to members of the lower castes (positioning in the hierarchy typically reflecting economic status).

Other sources suggest that participants in the census, which as noted earlier in this blog is mandatory, will be asked "What is your caste?". People will reportedly be free to report "No caste".

The WSJ reports that -

In a statement announcing its decision, the cabinet of the Prime Minister Manmohan Singh said the caste "of all persons as returned by them would be canvassed" in a special census in mid-2011.

India's Office of the Registrar General and Census Commissioner will first measure people on their caste and tribes and the information then will be classified by an expert group that the Indian government will form at a later date, the government said.

The last time a full caste census was conducted was under British rule in 1931. The government acknowledged it was changing a practice that "had been given up as a matter of policy after independence."

It said it made the move "in response to the demands for enumerating castes." India's regular decennial census started in April and will conclude in March 2011.

The government currently reserves 22.5% of all jobs in its offices and seats in government colleges and universities for Dalits and students from India's indigenous tribes, who also receive special benefits under the constitution. The percentage is based on 1961 census data.

In the early 1990s, the government decided to put aside a further 27% of government jobs for people socially and economically marginalized due to the caste system, known in demographic parlance as "other backward classes."

That policy concession was forced by the political momentum built on the claim that these groups constituted 52% of India's total population based on the 1931 census data. That government move met with number of violent protests around the country mainly by upper-caste youths who saw it as limiting their career prospects.

The report notes comments by Bhakta Charan Das MP that government recognition of caste through the census comes at a time when India should have -

legally abolished the caste system ... it's time to abolish the caste system and let the Indian nation live in dignity ...

the caste census will disturb the peace and progress in India's villages where people were slowly coming out of the caste prison and over 70% of India's youth whose liberal minds will now get imprisoned in the petty caste issues.

Surjit Bhalla in the Indian Business Standard of 22 May commented that -

On the grounds that more information is always good, or at least cannot hurt, the Indian government is about to embark on a new social experiment — caste will be included as a question in the forthcoming 2011 Census. This will be a first in independent India; the last time caste was included as a question, and the only time, was in 1931. At that time, several castes petitioned the government to classify them as a caste higher to one they actually were. Census 2011, if it does include caste, is likely to show a race to the bottom, with at least 20 percent of the Hindu population declaring themselves as Other Backward Castes (OBCs) when they actually belong to an upper caste. The question the social engineers in the political parties have to answer is whether gathering of this false information serves any purpose.

Most of the arguments over the inclusion of caste in the census, whether made by politicians or the so-called liberals and/or so-called intellectuals supporting this crass exercise, centre on the following two propositions. First, the government targets a large segment of the population for redistribution of income. The government has, over the last 60 years and starting with our fundamentally flawed Constitution, allowed for reservations in access to education, jobs, etc. for the Scheduled Castes (SCs) and Scheduled Tribes (STs). Note that our flawed Constitution did not talk about the need for affirmative action to tackle the justifiable cause of redressing inequality; no, the social engineering objective then, as it is today, was to mandate equality via quotas. In the 1990s, an additional quota was added — a quota for the OBCs. Together with the SCs/STs, the quotas corner at least 60 per cent of the population (approximately 27 per cent SCs/STs and 36 per cent OBCs).

Na naah, na naah

An overseas reader has pointed to claims by US academic Courtney Brown regarding industrial activity on Mars. [video here, complete with references to "military grade remote viewers", ie psychics, and not to try remote viewing at home.]

(Actually it's in Mars, as the facility is apparently located underground in the Red Planet ... discernable, oh dear, by adepts at remote reviewing - the nonsense that cruel readers such as myself dub as parapsychology or as deliciously reminiscent of the mumbojumbo from Madame Blavatsky or L Ron Hubbard.)

I'm reminded of a 1996 critique by one of Brown's colleagues, who wrote -

The Courtney Brown affair and academic freedom

Academic freedom -- the right of faculty members to pursue and discuss whatever interests they wish, no matter how outlandish or repugnant others might find them -- is a cornerstone of institutions of higher learning. Without it, the very rationale undergirding that remarkable democratic organization we call a university crumbles. Nevertheless, there are inevitably times when academic freedom conflicts with a university's best interests. When this occurs, vexing pragmatic and ethical questions arise.

The most recent example of this conflict at Emory involves Dr. Courtney Brown, an associate professor in the political science department. Brown's actions and words have, to put it mildly, aroused considerable ridicule and controversy at Emory and in the broader academic community. In his new book, Cosmic Voyages: A Scientific Discovery of Extraterrestrials Visiting Earth, Brown claims to use powers of "remote viewing" (an alleged psychic ability permitting individuals to "see" objects at enormous distances) to visit Mars and observe the actions of aliens. He purports to have uncovered indisputable evidence that two races of extraterrestrials, Martians and Greys, left the red planet centuries ago and have taken up residence in the dark recesses of Earth.

But Brown does not stop there. His remote viewing methods, which are "as rigorously controlled as those used in any solid social science text," have revealed that Adam and Eve were architects of a genetic engineering project and that numerous Star Trek episodes were written with the assistance of aliens. In one of the book's more remarkable chapters, "The Grey Mind," Brown claims to have "entered the mind" of an extraterrestrial and investigated its psychological make-up. Brown, who directs the "Farsight Institute" in Atlanta, offers seminars--at a cost of $3,000 per head--that promise to provide attendees with the psychic abilities he has mastered.

One hardly knows where to begin. Brown's book is remarkable for its virtually complete absence of any data that would qualify as scientific by even the most liberal evidential standards. His "findings" consist entirely of unverified subjective experiences, and the reader searches in vain for anything vaguely resembling a controlled experiment. Brown neglects to mention either the results of a recent government-appointed scientific panel on remote viewing, which concluded that "evidence for the operational value of remote viewing is not available, even after a decade of attempts," or the critiques of Ray Hyman, a psychologist at the University of Oregon, who has shown that the scientific evidence in support of remote viewing is seriously flawed. Philosopher David Hume maintained that extraordinary claims require extraordinary evidence; Brown's evidence is, to be charitable, singularly unimpressive.

In light of Brown's claims, I recently challenged him to a test of his alleged psychic abilities. I proposed that he appear at a meeting of my undergraduate seminar on Science and Pseudoscience in Psychology, where my students and I would subject him to a simple controlled experiment examining his capacity to remotely view stimuli in an adjacent room. I assured him that he would have considerable input regarding the selection of stimulus materials, and agreed to publicize the results of this test in both Emory newspapers regardless of its outcome.

But Brown categorically refused. His reasoning was curious: In his e-mail response to me, he asserted that "tests of the type you have talked about are very old hat" and that the current status of remote viewing "goes light years beyond that which your letter suggests." But if Brown's psychic powers are as advanced as he claims, shouldn't he be able to pass an elementary test of these powers with flying colors?

Brown also declined my offer on the grounds that he did "not want to drag Emory into my other activities" and that he is "rigorous about not mixing what I do elsewhere with what I do at Emory." This rationale seems disingenuous at best. If Brown did not wish to involve Emory in his exploits, why did he list his academic affiliation with Emory in his book and on his web site? Brown apparently wants to have it both ways: He publicizes his association with Emory when it might afford him the imprimatur of academic legitimacy, but refuses to submit to scientific tests by Emory colleagues on the grounds that he does not wish to "drag Emory" into a firestorm of controversy. But it is too late: Emory's reputation has already been besmirched. As George Armelagos of the Department of Anthropology notes, "Brown is naive if he believes his fantasies do not affect the image of the University."

Why should we at Emory care about Brown? Many of his Emory colleagues will surely suggest that he is best ignored. But such an attitude would be misguided. As Carl Sagan argues in his recent book, The Demon-Haunted World, the public's inability to think critically about scientific issues is an unappreciated source of our educational and social woes. By remaining silent on Brown's shenanigans, we do our students, who desperately need role models of clear reasoning, a serious disservice. Moreover, we leave ourselves open to criticisms such as those of Robert Baker of the University of Kentucky, who suggested that the Brown affair "bring(s) into question whether Emory has any high scientific standards."

Brown's claims regarding parapsychology are in my opinion less meritorious than the work done by fellow-Emory academic Deborah Lipstadt in taking on David Irving and fostering research into Holocaust denial, another belief system that - like claims regarding witches - has a pernicious effect.

Parliamentary Privilege

Rachel Macreadie & Greg Gardiner of the Victorian Parliament's Parliamentary Library have produced a 63 page research paper titled 'An Introduction to Parliamentary Privilege' [PDF].

The paper examines the law and practice of parliamentary privilege in Australia and in other jurisdictions. It also contains a discussion of the historical background to parliamentary privilege and examines the issues and tensions associated with parliamentary privilege. The paper features a 12 page bibliography.

The authors comment that -

While many issues prevail regarding the law of parliamentary privilege there is one area which is rarely contested, and that is the significance and centrality of parliamentary privilege to parliamentary democracies. Parliamentary privilege has long been considered essential in enabling parliaments to perform their functions as representative institutions, in creating effective legislation and in scrutinising government activity. As discussed in this paper, these privileges, which are an exception to ordinary law, are comprised of freedom of speech and debate, freedom from arrest, exclusive cognisance of the Houses, and the power of Houses to punish contempt. Immunities, belonging to individual Members acting in a collective capacity, such as freedom of speech, are seen as protections that allow parliamentarians to perform their duties without fear of intimidation or constraint. The powers belonging to a House of Parliament to punish contempts and regulate its own constitution are, as noted in Erskine May, 'for the protection of its own authority and dignity'.

As this paper has demonstrated, the law and practice of parliamentary privilege is complex and many issues and tensions have arisen from its practice. Issues such as sub judice, search warrants and subpoenas, the power of Houses to punish contempts, citizen’s right of reply, immunity of non-Members and the scope of freedom of speech have, on occasion, brought parliaments in conflict with constituents and the executive and have resulted in numerous court cases. However, as Griffith notes, ‘Recent cases on parliamentary privilege may not point in any discernible direction or reveal any definite trend, turning as most of them do on the particular facts at issue’.

The structure and practice of privilege in other jurisdictions has elucidated the conflicts and tensions that exist in maintaining an effective separation of power between legislatures, the judiciary and the executive. Centuries of developing statutory and procedural frameworks with regard to privilege have still left many uncertainties as to the role each arm of government is intended to perform. Presumably, the only certainty is that these ambiguities will continue to exist. Indeed, the idea that parliamentary privilege is a complex topic of which there are still persistent 'grey areas', some of which may never be resolved is echoed in the literature and resources examined throughout this paper, such as in Erskine May, Campbell and Griffith and Ryle. Governments based on the principle of separation of powers will inevitably encounter tensions in striving to attain an ideal balance between accountability, transparency and effective governance.

Headlines

Having turned down a fan's offer of a 'zero point energy wand*' I am rather enjoying Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984, aka the 'Headline Case'. 

Fairfax, as the publisher of The Australian Financial Review (AFR )[published in paper form to the general public and electronically in digital form to subscribers in Australia and elsewhere], alleges that Reed - publisher of the ABIX abstracting service - has infringed Fairfax's copyright in AFR headlines. Reed's ABIX involves the provision to subscribers of abstracts of articles published in various newspapers and magazines, including AFR articles. Those abstracts include the headline of each article (typically without alteration), the by-line of the journalist who wrote the article and a short summary of the article written by a Reed employee. Typically, abstracts of around 40 to 60% of the articles in each edition of the AFR are provided early on the same day as the relevant edition. 

 Bennett J commented that -

It is important to appreciate that the appearance of the Abstract is not the same as the appearance of the original article as published in the AFR. Further, while the Abstract does include the headline and by-line of the corresponding article, the ABIX service does not reproduce the advertisements, the photographs or the quotes from the articles which appear in the AFR. The arrangement of the Abstracts within the ABIX service as presented to subscribers is not the same as the arrangement of those articles in the AFR. Nor do the headlines appear in the same order as they appear in the AFR. However, Fairfax argues that the Reed database reproduces the arrangement of the articles and headlines in the AFR. Fairfax alleges that, by reason of the provision of such Abstracts as part of the ABIX service, Reed has infringed its copyright in a number of different works comprised in each edition of the AFR. Fairfax contends that each of the following (the contended works) are original literary works in which copyright subsists pursuant to the Copyright Act 1968 (Cth) (... and that Reed takes the whole or a substantial part of each of these works in preparation of the Abstracts: 1. Each individual headline in an AFR edition 2. Each article, including its headline and by-line, written by journalists employed by Fairfax and published in an AFR edition (Article/Headline Combination) 3. The compilation consisting of all of the articles, including their headlines and by-lines, in an AFR edition (Article Compilation) 4. Each entire edition of the AFR (Edition Work)

Reed denied any infringement, arguing that none of the contended works, other than the Edition Work, is capable of being a work within the meaning of the Act or is a work in which copyright has been proven to subsist, and that even if copyright subsists in each of the contended works, the Abstracts do not reproduce a substantial part of any contended work, other than the individual headline. Reed also raised defences of fair dealing for the purpose of reporting news under s 42 of the Act and the defence of estoppel. Bennett indicated that

The primary issues in dispute are: 1. whether copyright subsists in any of the contended works pursuant to the Act: • Is each of the contended works a “work”? • Is each of the contended works an original work? 2. whether, in the preparation of the Abstracts, Reed takes the whole or a substantial part of any of those works in which copyright subsists

He concluded that -

• None of the ten selected headlines are capable of being literary works in which copyright can subsist. 

• Fairfax has failed to prove that any of the ten selected Article/Headline Combination is a discrete work of joint authorship in which copyright can subsist. 

• Copyright subsists in the Article Compilation and the Edition Work in each of the June and November editions as original literary works and this copyright is owned by Fairfax. 

• Reed takes the whole of each headline. As to whether Reed, in reproducing and communicating headlines of the AFR as part of the Abstracts, takes a substantial part of any of the contended works: 

• Even if the Article/Headline Combination constitutes a copyright work, Reed does not take a substantial part of such a work. 

• Reed does not take a substantial part of either the Article Compilation or the Edition Work. 

• Although it is not necessary to decide whether Reed is entitled to rely on the defences claimed, I nonetheless consider that: 

• Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act; 

• Fairfax is not estopped from asserting that Reed’s reproduction and communication of AFR headlines in the Abstracts as part of the ABIX service amounts to infringement of its copyright in the contended works.

* And the wand? It looks - to my untrained and alas deeply sceptical eye - like a ball point pen but has the sort of properties that enthuse devotees of the Akashic Field. One vendor thus indicates that the -

Wand is a device that is able to imprint subtle energy patterns into one of the energetic layers of our body known as the etheric field. It has been demonstrated that there are independent etheric fields for each vibrating unit of life and for the physical body as a whole. Energy healers have long used the etheric field as a map to understand areas in which we are experiencing blockages in our body. The etheric field links the physical body with other subtle bodies (mental and emotional), serving as the matrix for physical growth. As Barbara Brennan, a contemporary expert on this subject, suggests, the etheric layer actually exists before the cells themselves grow! By working on them, we can have a direct and profound impact on the physical body. The Crystals and Minerals in the wand are able to hold and store these energy patterns for long periods of time, helping entrain your cells to their vibration. ... The Zero Point Energy 'Freedom' wand is amazing because it works. It combines ancient knowledge of subtle energy with advanced technology in a way that generates a healing frequency that improves the condition of living organisms it comes into contact with (animals, humans, foods, liquids). For those who are ready to embrace a worldview that acknowledges that we are beings of energy, and that all diseases are related to flow of energy, then we encourage you to be bold and join the self-care revolution and take the leap towards an optimum health care approach that encompasses energy tools.