David Jones, artist and poet (1895-1974) begins his PREFACE TO THE ANATHEMATA :

'I have made a heap of all that I could find.' (1) So wrote Nennius, or whoever composed the introductory matter to Historia Brittonum. He speaks of an 'inward wound' which was caused by the fear that certain things dear to him 'should be like smoke dissipated'. Further, he says, 'not trusting my own learning, which is none at all, but partly from writings and monuments of the ancient inhabitants of Britain, partly from the annals of the Romans and the chronicles of the sacred fathers, Isidore, Hieronymous, Prosper, Eusebius and from the histories of the Scots and Saxons although our enemies . . . I have lispingly put together this . . . about past transactions, that [this material] might not be trodden under foot'. (2)

(1) The actual words are coacervavi omne quod inveni, and occur in Prologue 2 to the Historia.
(2) Quoted from the translation of Prologue 1. See The Works of Gildas and Nennius, J.A.Giles, London 1841.


01 September 2015

might might BORDER INCIDENT


Attorney General George Brandis, who personally chose Dyson Heydon to lead the Royal Commision into Trade Union activities, said recently that Commissioner Heydon "does not have a political bone in his body". Indeed, that...
“This is a man who has no politics, who is entirely free of politics, but has given a lifetime of service.”  
Dyson Heydon: royal commissioner decides future
The Australian / Elizabeth Colman, Jared Owens
31 August 2015
Royal Commissioner Dyson Heydon's father was the private secretary to Robert Menzies when he first was Prime Minister, from 1939-40.
What you didn’t know about Dyson Heydon
Malcolm Farr / news.com.au


Q : (Loud appeal by ACTU at Allan Border Field) : Howzat?
A : (Third Umpire, observation) : Dyson Heydon was dismissed (run out, no less) for eight when he played in Sir Robert Menzies' Prime Minister's XI against South Africa in 1964.
TAR : Okay. Let's have another look at that...
        


    
Yesterday, after 10 days of deliberation, Commissioner Heydon delivered his self-assessment regarding "apprehended bias".
Apprehended bias 
The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”  
Johnson v Johnson(2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied inMichael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857[2006] NSWCA 71 and Barakat v Goritsas (No 2) [2012] NSWCA 36.
Surely that is a might might through which a fair-minded lay observer might drive a galaxy fleet of hyperdrive perceptors; and yet the projection-space known as Royal Commissioner Dyson Heydon has judged himself reasonably unlikely to be such a projection by others.
       
Here's the submission about that as made by lawyer for the ACTU, Mr Newlinds :
May I emphasise at this point what I call the double "might" test in Ebner. We would respectfully suggest that the use of the two "mights", not only is it rather ugly grammar, it does emphasise that this is actually quite a low bar that is imposed by the High Court in relation to the test, because I don't have to persuade you that the hypothetical observer would think that you harbour a political prejudice. I only have to persuade you that the hypothetical observer, firstly, might think and, secondly, what he might think is that you might harbour a political prejudice. I think that is an important point to emphasise. The test could be cast with the use of many other words but it has obviously deliberately been cast in that sense which creates a low threshold. That is our first submission. We put it forward as a basis by itself that would justify the making of the orders we seek.  
p9 of the pdf of the Royal Commission transcript of 21 August 2015
   
Dyson Heydon would not be run out again - not by the other runner, not as a result of his own error, and not by the other side - while serving in the Prime Minister's XI. 

He has declared himself, "Not out".



 Three fair-minded lay observers at the crease          LM of TAR
         
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30 August 2015

Head of TAR

     

titular


                   
[tich-uh-ler, tit-yuh-]
                 
adjective

1.    existing or being such in title only;
       nominal;
       having the title but none of the associated duties, 
       powers, etc.:
       the titular head of a shell company.

2.    from whom or which a title or name is taken:
       His titular Saint is Vitus.

3.    of, relating to, or of the nature of a title.

4.    having a title, especially of rank.
       
5.    designating any of the Roman Catholic churches in
       Rome whose nominal incumbents are cardinals. 

noun

6.    a person who bears a title

7.    a person from whom or thing from which a title 
       or name is taken. 

8.    Ecclesiastical. a person entitled to a benefice but 
       not required to perform its duties.

example

9.    Laughing Logos (aka Laughing Christ)

           
  Laughing Christ, Noel Counihan, 1970
see also

10.   "O
wls of laughter from an ole in is Titular Head." 
        (ornithoLOGOS/HA HA)



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28 August 2015

Border Incident : Operation Farce

         
At 10 am today, the Australian Border Force announced Operation Fortitude.  
Operation Fortitude seems to have been named using the wrong f-word. Many would work, but let’s go with Operation Farce.
Not since Tony Abbott gave Prince Philip a knighthood has the nation appeared so immediately united in calling out a truly stupid and offensive notion.
It began with a morning press release, announcing proudly that our new “border force” – a revamped and armed version of the frontline activities of immigration and the customs service that began operations in July – would be part of a big “crime crackdown” in Melbourne on the weekend.
“ABF officers will be positioned at various locations around the CBD speaking with any individual we cross paths with,” said the border’s force regional commander in Victoria and Tasmania, Don Smith.
F is for farce: how Australian Border Force united the nation against it
Lenore Taylor : The Guardian
    
Those with a bit of historical background, especially those interested in simulacra and the art of deceptive appearance, will recall that Operation Fortitude was a famous WW2 dummy (literally so : see the image below) operation intended to mislead German Intelligence prior to the D-Day invasion.


                 
That was funny and clever and effective. But wtf was today's Operation Fortitude in the Melbourne CBD really about? Another show of dummy tuffness by pugilist Abbott and his hardline cronies? Intended to distract from the recent political stumblings of the Government? What does the responsible Minister Dutton say about today : "it is an operational matter".


     
Within a few hours of this morning's press release there were protests at Flinders St Station in central Melbourne and a few hours later Operation Fortitude was cancelled, already publicly rehashed as #Operation Farce.


Theatre of the Actors of Regard : Canberra in July, at the grand ceremonial launch of Australian Border Force : Dutton, Abbott and Highly Decorated



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27 August 2015

Laugh Song from Border Incident

           



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26 August 2015

BORDER INCIDENT


Theatre of the Actors of Regard presents



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 A Person Looks At A Work Of Art/
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25 August 2015

Regarding the Funambulist on the Horizon Line with Dualism Balance and Safety Matrix at the Ten Directions :

    
Steady, steady...
         

          
Lines in the mind field : from Lateline, previously, to this online article received recently from Stamm:

Taking notes

by  |  | 

     
A little while back, Terry Smith (Discipline, no. 3, 2013) described the ‘comedy of disciplines’ that is the contemporary art scene. His hierarchy went like this:
cultural studies
art theory
———
art history
art criticism
curating
collecting
art dealing
studio talk
art making
What’s interesting is how Smith draws a line these days between the theorising of the top two and those further down. He was actually in the process of dissing Nikos Papastergiadis for what he read as an arrogant and too-simplistic review of Smith’s own recently published books. He was saying that theory has less veracity in the art world than it once did, and that at best it communicates from the edges of the scene.

A series of seven video recordings of a symposium titled Speculations on Anonymous Materials at the Fridericianum, Kassel, in 2014 is available on YouTube. The videos introduce five speakers, mainly contemporary philosophers, discussing the trend of ‘new materialism’ thinking and the argument along the lines that the existence or non-existence of natural objects is not contingent upon us. The ‘anonymous materials’ of the title is meant as well to catch something of the way contemporary artists are more and more using strangely tangential materials in artwork.

These videos are a beautiful six hours where each speaker attempts to describe their very complex thinking to an audience comprised largely of artists and art professionals. Terry Smith writes about the potential of artists being contingent upon the worlds around them, meaning I think that there is an obvious dependency, but the stretching to connect that happens can be madly entertaining.

One of the speakers at the Kassel symposium, Iranian philosopher Reza Negarestani, proposed that artists are essentially ‘inference jumpers’, necessarily and inexplicably jumping from one inference to another. And for him the problem lies in artists ‘over-extending conceptual resources’ to the point where, he argues, artworks need objects. Conceptual practices were too often simply art by contract. For Negarestani, art is heuristic, and has nothing to do with rote learning.

In Going Public (2010), art theorist and historian Boris Groys jumps one step further to shift the politics of art by moving past ‘the spectator’s attitude’, and its associated aesthetic privileging of the audience and viewer. Groys instead proposes the viewpoint of production and writes of the necessity to build a poetics of the producer.

Groys sees the aesthetic attitude (i.e. the spectator’s) as culminating in a sociological understanding of art. He makes clear the subordinate position that the art scene allocates to production vis-à-vis consumption. Almost everyone’s interests in contemporary art tend towards collaborative, participatory practices and tactics of project-making.

Groys suggests that we are all invariably producers nowadays. The internet makes nonsense of twentieth-century aesthetic constructs to do with the demands of contemplative viewers. There are no idle viewers any more in any real sense. ‘The politics of art,’ he argues, ‘has less to do with its impact on the spectator than with the decisions that lead to its emergence in the first place.’ It is not a conversation about where art comes from and what it looks like, and art installations are not site-specific.

Terry Smith, ‘Contemporary Art and Contemporaneity: Reflections on Method, Review of Reviews (Part 1)’, Discipline, 2013, no. 3, pp. 191–200.

Speculations on Anonymous Materials, introduction by Susanne Pfeffer & Armen Avanessian, participants Maurizio Ferraris, Markus Gabriel, Iain Hamilton Grant, Robin Mackay & Reza Negarestani, Fridericianum, Kassel, January 2014, YouTube, nos 1–7, viewed June 2015.

Boris Groys, Going Public, Sternberg Press, Berlin & New York, 2010.


Mernet Larsen, ‘Taking Notes’, 2004, acrylic, tracing paper and oil on canvas, 122 x 127 cm

______________    

       
Above the line above is the whole 'Taking Notes' article from Stamm, with the Three Figures of TAR pictured 'Taking Notes' at the end. Their pages for note-taking are fully lined (click image to enlarge) but they've not made any notes yet. That's them ("When shall we three meet again?") below, too.
          
"Streams of tendency" (James Joyce) to line the field, indeed.


 click image to enlarge                       photo courtesy LM of TAR
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 A Person Looks At A Work Of Art/
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20 August 2015

Regarding the level of apprehended bias : well it depends on what you mean by the bar...

  
bLOGOS/HA HA is concerned with the Act(or) of Regard.  
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Therefore, the present (Theatre of) challenge to the impartiality of a Royal Commission Judge is of core interest here. 
Apprehended bias 
The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” : Johnson v Johnson(2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied inMichael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857[2006] NSWCA 71 and Barakat v Goritsas (No 2) [2012] NSWCA 36.
Accordingly, last night's Lateline interview (transcript below) was a script worth bottling.

Tony Jones speaks with Nicholas Cowdery about the future of Royal Commissioner Dyson Heydon.
Australian Broadcasting Corporation
Broadcast: 19/08/2015
Reporter: Tony Jones

TONY JONES, PRESENTER: Nicholas Cowdery was the Director of Public Prosecutions in New South Wales between 1994 and 2011. He's now an adjunct professor of Law at Sydney University's Institute of Criminology and he joins us now. 

Thanks for being here.

NICHOLAS COWDERY, FMR DIR. OF PUBLIC PROSECUTIONS: Evening, Tony.

TONY JONES: Now on Friday, lawyers for the ACTU will proceed will an application that Dyson Heydon should disqualify himself from the Royal commission. How strong do you believe are the arguments they're going to put forward?

NICHOLAS COWDERY: Well I think they'll be coming with the strongest arguments that they can identify and there will be probably equally strong arguments on the other side of the contest. I don't have a concluded view about what should happen and any view that I did have would be irrelevant. The view that is important on Friday is the view that the commissioner forms having informed himself of all the facts that are relevant and having heard all the arguments on both sides.

TONY JONES: Now, non-lawyers might find this a little bit bizarre, that the commissioner has to inform himself of the facts about himself, effectively about his own state of mind and what he knew at the time. Can he actually give an unbiased opinion on himself?

NICHOLAS COWDERY: I think yes, and I say that because you have to understand the nature of legal training, the nature of the legal mind after many long years of practice and the application of the law in that sort of environment. This has been the process since the year dot. When some challenge is made to the impartiality of a judicial officer or somebody sitting in the position of a commissioner, it's that person who makes the decision as to whether or not a reasonable lay person would have a reasonable apprehension that that person, the subject of the inquiry, could not bring an impartial mind to the inquiry.

TONY JONES: Yes, and I mean, that's an interesting thing in itself. I mean, how would a former High Court judge, someone who's been in that cloistered environment for a long time really understand what a reasonable lay person, a person in the street, if you like, would actually think about whether he's biased or not biased?

NICHOLAS COWDERY: Well I think you might be falling into the trap of the idea of judges being divorced from reality and divorced from the community.

TONY JONES: It's a long-held view of certain people.

NICHOLAS COWDERY: Well it is of certain people, but you have to be realistic about these things. Judges see more of the slice of life in the community than ordinary individuals do in their daily lives. The community parades before them in the cases that come before them. In something like a Royal commission, there's a huge range of people who come forward with a huge range of experiences and input into life and so forth. And judges and commissioners, inquirers of one sort or another, I think are in a very good position to make the sorts of judgments that are required.

TONY JONES: In this case the test is apprehended bias. In other words, whether this person in the street would apprehend there to be bias. Is the bar higher or lower for a Royal commissioner than for a judge, for example?

NICHOLAS COWDERY: Well that's a very interesting point and I'm sure it will be part of the argument that will be aired on Friday before Commissioner Heydon. You have to keep in mind that there is a distinction between a judge and a commissioner of inquiry. A judge is in the position of making final decisions about the rights of individuals. A commissioner makes no decisions of that kind. What a commissioner does is to inquire into the availability of evidence, of facts that may be needed to be followed up by other processes, by other agencies following a Royal commission. And the Royal commissioner makes no binding decisions about the rights of individuals at all.

TONY JONES: So in fact the bar may be somewhat lower. Is that what you're saying?

NICHOLAS COWDERY: Well it depends on what you mean by the bar. I think there is at least an argument that the level of apprehended bias would have to be higher to justify the disqualification of a commissioner than of a judge. I'm not - I'm not an expert in this field of administrative law, but I'm certainly not aware of any decision which rules on that precise question.


TONY JONES: OK, let's have a look at some of the details. The Garfield Barwick Oration is clearly a Liberal Party event which Mr Heydon had agreed to do before he took on the Royal commission. As the commissioner says, he got an email when he was commissioner to remind him of the event, but he didn't open up the attachments, which refer to the fundraising element of it. I mean, is that ignorance enough to shield himself from the idea that he's been biased?

NICHOLAS COWDERY: Well I think it's the sort of thing that could quite reasonably happen in the life of a very busy individual and it's an important fact to keep in mind, apparently, that he also deferred or declined to take part in this event while he was still serving as the Royal commissioner. So he has certainly recognised that it may not have such a good look to it. But I - that's a long way from being a ground for disqualification and for resignation as a Royal commissioner.

TONY JONES: What about the notion that he appears to have understood it was a Liberal Party event - does that make any difference?

NICHOLAS COWDERY: Well this is a very politically-charged Royal commission and it has been since the beginning. And it has been open to people, and some people have taken this course, to criticise the person who accepted the appointment as a commissioner and to be in a position to criticise any finding that might be made by that person that would be adverse to the commentator's interests. And that process has been under way. The very mild rebuke, if it was a rebuke, of Mr Shorten by the commissioner to which you've referred, I think could be interpreted as really being some helpful advice to Mr Shorten, to assist him, not to criticise him. And apart from that, there has been no criticism of the way in which Commissioner Heydon has conducted his commission. Certainly, there have been some comments of a political nature every time something was going badly against the parties who made the comments, but that's what you expect in a public inquiry of this kind.

TONY JONES: Now, do you think - from what you were saying, there's already been a certain amount of damage to the commission itself. What does this whole affair do to the findings of the commission once they're released?

NICHOLAS COWDERY: Well I don't think the Garfield Barwick address adds greatly to the problems that are already there. I think the process itself has been under political attack right from the beginning and that attack could be expected to have continued. This particular event, I suppose, gives it a bit of a kick along, but in my own view - and I said I wouldn't express one - but I don't think subject to any other facts that might emerge or arguments that might emerge, that it kicks the ball into touch. I don't think it requires the commissioner to disqualify himself just on that. The problem is of course that any adverse findings against anybody remotely connected with a party other than the Liberal Party are going to be degraded and snubbed because of the events that have occurred.

TONY JONES: Nick Cowdery, we're out of time. We thank you very much for coming in to join us tonight.

NICHOLAS COWDERY: Thank you, Tony.
        
        
Three Laughers of TAR 
present
Standing at the Bar, locus standi

Australia has a Common law understanding of locus standi or standing which is expressed in statutes such as the ADJR and common law decisions of the High Court of Australia especially the case Australian Conservation Foundation v Commonwealth (1980).[12] 

The test for Standing is: 
1. Do the party have special interest in the matter.[13].[14][15] 
    Is that interest too distant?[16][17]

Standing may apply to class of aggrieved people[22] where, essentially the closeness of the plaintiff to the subject matter is the test.[26]

Furthermore, a plaintiff must show that he or she has been specially affected in comparison with the public at large.[27]

Also, while there is no open standing per se, Prerogative writs like certiorari,[28] prohibitionQuo warranto[29] and habeas corpus[30]have a low burden in establishing standing.[18]

Australian Courts also recognise amicus curiae (friend of the court),.[23][31] and the various Attorneys Generals have a presumed standing in Administrative Law cases.[23]             


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19 August 2015

LOGOS/HA HA : regarding 'lawfare' and 'vigilante litigation' (The Attorney General George Brandis, again)

           
Logos, language, law & laughter on RN this morning :

listen to the full interview here 
      
Fran Kelly :  Lets return now to the government's attempts to tighten environmental laws in a bid to ban green groups from using the courts to stop major developments like the proposed Adani coal mine. This follows the Federal Court's decision to temporarily withdraw Commonwealth approval for the mega coal mine in central Queensland on the grounds that two vulnerable species, the Yakka skink and the Ornamental snake, were at risk.
             
Recording of Prime Minister : "If we get to the stage where the rules are such that projects like this can be endlessly frustrated, that's dangerous for our country and it's tragic for the wider world."


Fran K :  Prime Minister Tony Abbott speaking yesterday.  
               
The Attorney General George Brandis says legislative reform is needed to prevent the rise of "lawfare" where community groups use the courts as a political weapon. 

Geoff Cousins is a successful businessman, a director of Telstra, a former advisor to John Howard; he's also now the President of the Australian Conservation Foundation.
          
Fran K :  Geoff Cousins, Welcome to Breakfast.
             
Geoff Cousins : Thanks Fran. Good Morning.
          
Fran K :  The Attorney General calls green groups' tactics in the court "lawfare" and "vigilante litigation". What do you call it?
            
Geoff C : Well it's hardly vigilante, is it, when you are going to a court. I would have thought that is exactly the opposite, that is the due process of Law. Some spin doctor came up with this "lawfare" phrase : well my retort to that, to Mr Brandis, is "It's not lawfare, it's fair law". This is a law that allows Government decisions to be tested in courts by the people. That is good governance. That is what should happen in a democracy, and this government is doing no more and no less, it's pretty obvious to everyone I think, than trying to silence any voices that have a contrary view to their own.
          
Fran K : But have these laws been used by green groups to pursue a political agenda?
         
Geoff C : Not at all. And particularly not in this case because, of course,  the court didn't actually make a decision here - that's a misunderstanding from people - the Minister made a mistake and went to the court and asked for his decision to be withdrawn. The court actually never finally made a decision. So the government is like a lot of little schoolboys who've been caught making a mistake and then get angry with everybody else. The only person they ought to be angry with is the Minister for the Environment, as he is called, but at the moment I'd have  to say "Is Greg Hunt actually the Minister Against the Environment?".
            
Three Laughers of TAR enact fLaw n Order  


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18 August 2015

LINE!


The infinite monkey theorem states that a monkey hitting keys at random on a typewriter keyboard for an infinite amount of time will almost surely type a given text, such as the complete works of William Shakespeare.
Infinite monkey theorem - wikipedia

And so to the ever-wonderful David Pope of the Canberra Times :

For crying out loud, stick to the script, people!...


click image to enlarge   
Word has leaked that earlier this week Tony Abbott "read the Riot Act" to his Cabinet about falling into line and following the script - what script? - on same-sex marriage. Hence, the courting scene above with that manly hardliner Scott Morrison and the lineless small l liberal Malcolm Turnbull. Out front on keyboard, the infinitely hammer-fisted monkey. Author! Author!
          
Three Laughers of TAR enact I fLawnt  the Line


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 detail
 A Person Looks At A Work Of Art/
 someone looks at something...

 LOGOS/HA HA