Poujadist donuts

A spot of poujadism in NSW, with announcement that the Outdoor Recreation Party (ORP) is campaigning against what it says is the growing intrusion of government, in particular restrictions on doing burnouts (ie making lots of noise, smoke and mess on a public road).

The ABC reports that the Party was initially formed "to represent four-wheel drive enthusiasts" but "now under new management" it's more broadly opposed to the nanny state.

Candidate David Leyonhjelm says speed limits are a case in point.

"We have revenue raising, masquerading as safety," he said.

Mr Leyonhjelm says all speed limits should be removed temporarily so they can be re-calibrated naturally.

"Measure the speeds at which drivers travel and drivers will travel at what they regard to be a safe speed," he said.

"Then you set the speed limit at the 85th percentile."

Mr Leyonhjelm also says motorists should be free to do burnouts.

"Law enforcement should not be worried about people doing silly things that endanger only themselves," he said.

"It should focus on danger to other people".

"So if you are doing a burnout and all that's likely to happen is you'll ruin your car, damage your tyres and leave some black marks on the road that's no business of anybody, especially not the police."

Mr Leyonhjelm appears to have been a candidate and Treasurer for the Liberty & Democracy Party, the libertarian microparty that attracted attention because its ACT Senate candidate Lisa Milat was the sister-in-law of convicted serial killer Ivan Milat. He doesn't seem to have been keen on seatbelts, bicycle helmets, gun control (the Howard Government restrictions were dismissed as "illogical and unjust"), restrictions on access by 4WDs to national parks and - of course - taxes. En route to the ORP he's apparently been a member of the Libs and NSW Chair of the Shooters' Party. "When the Shooters Party was deregistered by the AEC just prior to the federal election in 2004, he enlisted the Outdoor Recreation Party to run a team for the Senate and marginal NSW seats."

Diplomacy

Gathering info for my ANZSOG 'Wikileaks' paper in breaks from work on the Legal Practice Manual FOI chapter. Useful rhetoric from one L Trotsky on 22 November 1917 -

Secret diplomacy is a necessary tool for a propertied minority which is compelled to deceive the majority in order to subject it to its interests. Imperialism, with its dark plans of conquest and its robber alliances and deals, developed the system of secret diplomacy to the highest level. The struggle against the imperialism which is exhausting and destroying the peoples of Europe is at the same time a struggle against capitalist diplomacy, which has cause enough to fear the light of day. The Russian people, and the peoples of Europe and the whole world, should learn the documentary truth about the plans forged in secret by the financiers and industrialists together with their parliamentary and diplomatic agents. The peoples of Europe have paid for the right to this truth with countless sacrifices and universal economic desolation.

The abolition of secret diplomacy is the primary condition for an honest, popular, truly democratic foreign policy. The Soviet Government regards it as its duty to carry out such a policy in practice. That is precisely why, while openly proposing an immediate armistice to all the belligerent peoples and their Governments, we are at the same time publishing these treaties and agreements, which have lost all binding force for the Russian workers, soldiers, and peasants who have taken power into their own hands.

The bourgeois politicians and journalists of Germany and Austria-Hungary may try to make use of the documents published in order to present the diplomacy of the Central Empires in a more advantageous light. But any such attempt would be doomed to pitiful failure, and that for two reasons. In the first place, we intend quickly to place before the tribunal of public opinion secret documents which treat sufficiently clearly of the diplomacy of the Central Empires. Secondly, and more important, the methods of secret diplomacy are as universal as imperialist robbery. When the German proletariat enters the revolutionary path leading to the secrets of their chancelleries, they will extract documents no whit inferior to those which we are about to publish. It only remains to hope that this will take place quickly.

The workers’ and peasants’ Government abolishes secret diplomacy and its intrigues, codes, and lies. We have nothing to hide. Our program expresses the ardent wishes of millions of workers, soldiers, and peasants. We want the rule of capital to be overthrown as soon as possible. In exposing to the entire world the work of the ruling classes, as expressed in the secret diplomatic documents, we address the workers with the call which forms the unchangeable foundation of our foreign policy: 'Proletarians of all countries, unite'.

Trotsky, as first People's Commissar for Foreign Affairs, had reportedly earlier announced: "My task is a very limited one - to publish secret treaties and close down the shop".

Put another Renoir on the barbie

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

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

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

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

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

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

Dubya

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

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

Ame and Essenberg again

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chesterman J in this instance states

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

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

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

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

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

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

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

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

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

The passage goes on and concludes: 

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

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

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

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

Divulgation, Withdrawal and MR

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

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

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

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

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

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

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

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

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

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

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

Mayer has responded that

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

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

Magic Plastic and bolts of joy

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

Power Balance? According to its US site it is -

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

How Does the Hologram Work?

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

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

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

The promoters state that -

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

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

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

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

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

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

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

The Panel requested the vendors to -

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

The ACCC has now stated that -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Times reports that -

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

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

The Times seems just a tad cynical, reporting that -

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

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

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

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