My earlier than expected break

After committing to posting more articles here I was managing to put some writing out into the ether with regularity, until….

…my second son arrived a couple of weeks earlier than expected! That, along with the reduction in free time that results, probably barely pass as adequate reasons for the transmission break.

At the time I was working on a piece about the proposed changes to the Racial Discrimination Act 1975 by the Australian Attorney-General and how the current law interacts with Freedom of Speech in the wake of the judgment in Eatock v Bolt. The project was becoming bigger than I expected which might have been noticed by my posting of two previously completed university articles.

I’m still researching for the piece, but may post a shorter version in the near future rather than one that includes significant detail about the philosophical basis of the right to freedom of speech, and where critics of such legislation as the Racial Discrimination Act 1975 say the extent of any curtailment of that right lies.

But for the moment, I’ll leave it to this observation:

Donald Sterling made racist remarks in a private telephone conversation which was recorded and leaked to the media. The result was his ban from the NBA for life and a fine $2.5M. Former player and current Mayor of Sacramento, Kevin Johnson, declared that it was message to all bigots that their bigotry will not be tolerated. This has occurred in a country where the right to freedom of speech is of much broader scope than in most countries, but where the general population (at least in this instance) sees the destructive impact on society that can brought about by its abuse.

Where the power of freedom of speech to shape society and empower people by allowing them to question traditional dogma and form their own views is used to defend speech which does nothing but harm others, a line is drawn. This line is built on the acquired understanding over time that unfettered speech used for an inappropriate purpose harms society and citizens, not enhance its aims and give freedom to its people.

Yet, freedom of speech is being used as the argument for why the Racial Discrimination Act should be repealed; it limits the ability of people to freely make racist remarks to the point of them being offensive, insulting, humiliating or intimidating where those remarks are not a fair comment done reasonably and made in good faith. All because a writer in a widely circulated newspaper wrote a number of articles attacking a group of people regarding their identification as Indigenous Australians in a completely misleading manner, and was ordered to publicly apologise. That and because, as Mr Brandis said, “People have the right to be bigots you know”.



Lies, Damn Lies and Killing Sharks (Part 1)

On 15 January 2014 Greg Hunt, the Commonwealth Environment minister, approved a request by the Western Australian Government to be exempted from the Environment Protection and Biodiversity Act 1999 (Cth) so that it could proceed with plans to set up 72 baited drum lines in order to cull white sharks, tiger sharks and bull sharks greater than 3 metres long. The exemption is required due to the listing of those species being listed as threatened species.

The predominant reasons for granting the exemption were:

1. A statistically significant increase in shark attack strikes in Western Australia in the years 2010 to 2013 compared to population increase;

2. As a result of point 1, people are scared of entering the water and there is anecdotal evidence of tourist businesses suffering financially;

3. The proposed cull will reduce the incidence of shark attacks and will provide useful information to other states in dealing with the same problem;

4. The Western Australian government have implemented measures to reduce the risk of death to other sea life from the exercise; and

5. It is in the national interest (due to points 1 to 3 above) for the cull to be allowed, and therefore within the class of reasons the EPBC Act gives as being the basis for an exemption to be allowed.

1. Statistically significant rise in shark attacks

At the outset, I am not formally trained in statistics and have only learned small sections of statistical analysis in passing. I would be grateful for any comments from those with greater knowledge about my analysis and conclusions.

The assertion made is that, when adjusted for population increase over time, the number of shark attacks has risen by a statistically significant degree. The paper this is based on (here) doesn’t provide the population or shark attack numbers used. However, a comparison between graphs on pages 10 and 11 of that paper (showing frequency of attacks per year and frequency of attacks per year per 100,000 people respectively) don’t show any major distortion. On the basis of this lack of distortion, my analysis will use the non adjusted figure of shark attacks per year, which I have obtained from the Shark Attack File.

However, before doing so, one variable not taken taken into account for which it could be argued must be accounted for in order to properly analyse the data, is any increase in average time spent per person in the ocean. Such a variable could result in an increased number of attack incidents due to the same number of people entering the water, the same number of sharks in the water, but an increase in the chance the two will interact.

Below is my tabling of shark attack data over the past 30 years extracted from the Shark Attack File. The data represents number of people injured per attack. Therefore, there may be incidents where one incident injures two people. Further, I’ve attempted to remove all reports listed as a hoax or reports where a shark has been caught in Australian waters with human parts found in their stomach contents (therefore not necessarily an incident which has occurred in Western Australia), but I cant guarantee that all instances of such data points have been completely removed.

One other point to note is the greater number of reports of minor incidents in the later years of the data. Data in the earlier years appears to be limited to incidents with either very serious or fatal outcomes, while there are greater reports of minor incidents or incidents where no injury is reported in the last decade or so. This may be a common finding in databases reliant on the reporting of events which are gaining increased importance or scrutiny for some particular reason. This skewing of the data can lead to false trends being extracted from it.

Incidents Fatalities Incidents Fatalities
2013 18 3 7 2
2012 22 3 7 2
2011 18 5 6 3
2010 16 2 5 2
2009 30 0 5 0
2008 18 2 3 1
2007 18 2 2 0
2006 12 1 2 0
2005 17 2 2 1
2004 16 4 6 1
2003 9 1 3 0
2002 12 3 1 0
2001 13 1 3 0
2000 18 5 2 1
1999 2 1 0 0
1998 4 2 0 0
1997 10 2 3 1
1996 15 1 2 0
1995 7 1 2 1
1994 3 1 1 0
1993 7 3 1 0
1992 6 1 0 0
1991 7 1 2 0
1990 8 1 0 0
1989 12 2 1 0
1988 7 3 1 0
1987 4 2 1 0
1986 5 0 2 0
1985 2 1 0 0
1984 3 1 1 0

Given the assertion about shark attacks being significant above the average in the years 2010 to 2013, I’ve decided to use the chi-squared test to assess the statistical significance of the number of attacks over those 4 years compared to the average of the proceeding 26 years (1.77 incidents per year):

Year Expected Average ( E ) Observed Number ( O ) O – E = D D²/E
2010 1.77 5 3.23 10.4329 5.8942937853
2011 1.77 6 4.23 17.8929 10.1089830508
2012 1.77 7 5.23 27.3529 15.4536158192
2013 1.77 7 5.23 27.3529 15.4536158192
      Sum D²/E   46.9105084746
      Degrees of freedom = 3    

A chi-squared value of 46.91 with three degrees of freedom gives an absurdly high, statistically significant p value of much less than 0.05, meaning that the likelihood of the increased number of shark incidents in those years could occur by chance alone is less than 5% (this is the level considered to give high enough confidence for the null hypothesis, such as “shark attack incidents per year remain static, to be rejected). This does not mean that shark incidents are definitely increasing, or that there is some underlying cause for an increase in shark incidents (such as a greater number of sharks in the ocean).

There may well be a better way of analysing this data than the chi-squared test given we are using a yearly data set and the chi-squared value I got being extremely high (and I’m open to suggestions in the comments).

There is a further assertion in the exemption statement that the increase in average attacks from 1995 on-wards is also made. Whether this is correct or not is not my main concern.

My concern with basing public policy on statistical analysis of this data is that the low number of attacks per year means any analysis will be of low statistical power. With such a low average number of attacks per year figure and a sampling of a small number of years to compare to the long term average, small deviations above or below the average can result in a statistically significant, but none-the-less erroneous, conclusion. Similar problems arise in medical trials when small sample sizes can lead to either significant improvements in effectiveness of, say, a specific treatment, not being found to be statistically significant, or, as in this case, statistical significance is found in a sample set which, after a few more years worth of data is collected, could yet be seen to be no more than a ‘blip’ in the data based on chance alone (see here, which I found to be useful in explaining the difficulties in making positive assertions about statistical significance test in large sample sizes and small sample sizes equally, and about drawing conclusions for analysis of single data sets by themselves).

Further, debate continues about the ability reliably draw conclusions based on a statistically significant finding from a single or small number of experiments or trials – how reproducible the result is is a greater determinant of whether the statistics are describing an event or occurrence that is really occurring, as does the debate about whether some tests are actually useful in drawing meaningful conclusions from otherwise good data. See here, here, here for example.

Statistical analysis is an extremely useful tool to study a given hypothesis and be able to draw conclusions as to the probably that an effect shown in the data gathered is due due to chance alone. But these tools are subject to limitations. The presentation of statements about statistical significance give undue legitimacy to policy decisions where the limitations to the analysis are not provided or explained.

2. Effect on people entering the water and on tourism businesses

Statistics are given of the number of holiday makers to Western Australia, how many intend to enter the water and what percentage of the State’s economy comes from tourism. A further generalised assertion that “There is substantial public concern about the safety of water based activities in Western Australia, and anecdotal evidence that the frequency of shark strikes is impacting on businesses in Western Australia”, and this is followed by a report of report of dive business saying that it had had a 90% drop in people wanting to learn to dive.

If the improper use of data and statistics is the failing in attempting to give legitimacy to the assertion that there is problem with shark attack frequency, then the lack of legitimate, grounded, provable evidence of these asserted problems is the failing with this trumping up of the effects of the ‘problem’.

One would be excused for thinking that the application for exemption has been put forward by people have done no more than read the newspapers and searched holiday stats from their own tourism department website to create a narrative it could use to promote the plan.

The real difficulty with realistic concern about increasing shark safety is the ‘zero infinity problem‘ – the chance of it happening to any particular person is so low that it barely warrants concern, but the effect on the victim if it does occur are infinite (in a non-mathematical sense of that term). To, at least in part, base policy decisions with likely deleterious effects on a population of any living thing by playing on heightened concern of something so unlikely to happen, and then in turn superimpose that on financial reasons, must be considered poor leadership.


Reliance on these two factors to support such a move as actively killing threatened species is significantly flawed. Statements about the statistical significance of a problem on minimal data points, followed by generalised statements of the effect of the problem with no proper basis in evidence, cannot pass as being reasonable premises to infer that action must be taken, let alone the mode of action to be taken.

The tragedy proprietary rights impose on the commons

A recent focus of Australia’s attention was on the actions of three protestors who boarded a Japanese whaling ship to remonstrate with the crew members catching whales in and around designated Australian sanctuaries.

The three activists were then detained on board, requiring intervention by the Australian Government to have them released.

Viewpoints on this issue varied significantly within Australia, even though it can be said with confidence that most people disagree with Japanese whaling in all forms and in all areas.

Conservative chants about the sanctity of the protection of property by law were widespread. The act of trespassing by these three men on the Japanese ship was abhorred as illegal, immoral and detracting, if not completely destroying, the noble intent of their actions.

Greenpeace recently reported an incident with similar connotations, where a Court in Denmark was asked to punish an activist for trespassing on boats found to be illegally fishing in an area barred from such activity to save an endangered endemic species of Cod.

Whilst I am relying solely on the Greenpeace report as to the conduct of the court proceedings, and making an assumption that the law of trespass on private property by persons not acting with a greater authority than an ordinary person, there could be no doubt that the protection of property would see the activist convicted, despite the cause and the positive impact the actions had in enforcing the fishing ban. As far as I am aware, there exists no ‘noble cause’ exception to either the criminal or civil trespass laws.

However, the Danish Court, quite surprisingly and despite a plea of guilty to the charge, acquitted the activist and Greenpeace Nordic on the basis that the trespass was justified.

From a purely legal perspective, this finding is absurd, but a debate about how a court could find the two not guilty without a legal basis, and given the plea of guilty, is not the intent of this article.

The immutability of legal protections granted by law in all its forms, even where the protections are contra to ideas of morality, justice or equality (which you may read as equality between all life or equality between humans) is the current concern, as is mantle on which such rules are placed.

The most extreme extrapolation of this concern, where pronounced laws are all-powerful and must be obeyed despite their effect, can be seen in the Nuremberg trials of Nazi criminals. The regular defence raised in these trials was that despite the allegations that their acts were ‘crimes against humanity’ and international law, they were acts in accordance with the laws of Germany. Therefore, they argued, they could not be prosecuted, given that the laws were assented to by a sovereign government.

Modern day examples that might be used are the forced evictions of people from public areas which featured prominently in the Arab Spring uprisings and Occupy movements. Whether you agree with these movements or not, the actions of such protestors of voicing their concerns and seeking change, in their view, for the betterment of society, were met with the enforcement of proprietary laws over the land on which they stood to voice these concerns, even where these actions in themselves did not cause damage.

A more regular example is the removal of protestors from otherwise public lands where logging licences have been granted to a private company. The removal, and the following charges laid, are based on a legal protection to the licensee over the land from adverse actions of people who, other than their intent to protest, would be allowed on the land.

The imbalance seems most striking where law securing property rights is utilised to protect the furtherance of activities that in themselves may be illegal, immoral (whether that morality be derived from religion, ethics or otherwise) or against the will of some part of society, whether it is a majority or minority will. Further, where the damage caused by such protected activities is not caused to a person or to an object over which another person has proprietary rights that can be enforced, the law, particularly criminal law, struggles to appreciate the validity of those ‘criminal’ actions such as trespass taken to halt the destructive, but protected, activities.

It cannot however be said that pedestal of proprietary rights over land has remained at its lofty heights throughout time. Much like free market capitalism, exceptions to the general rule have been introduced so that the tragedy of the commons does not forever plague us.

For instance, laws regulating pollutants contaminating and emanating from private land is regulated through Environmental Protection laws, as they do for proposed constructions on private land which may affect protected public land, such as in the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).

A more regularly used piece of regulation which acts to restrict the use of private land is found in local planning regulations, which of late have been updated to involve considerations of climate change and rising sea level when local Councils are considering a building or planning permit.

The questions for the future must be: Can (or will) government imposed regulation adapt to the evolving environmental conscience in a timely manner? Further, equitable outcomes achieved through regulation, at least historically, require complex legislation. Just look at the taxation laws in most developed countries which have this aim.Therefore, will environmental prosperity through equitable regulation be so complex as to end up being unworkable?

Finally, will the idea of private property forever restrict appropriate environmental action which alters the allowed use of land where competing economic interests are effected?

Although small-scale or singular domestic housing application have been rejected outright under current regulations (see reports of the recent Narrawong Planning Control Decision for example), large-scale, environmentally destructive but economically advantageous (depending on who you are) developments continue to get approval. Looking outside Australia, the Tar Sands Pipeline between Canada and the USA is another example of environmental issues being in conflict private proprietary rights to the use of land and natural resources.

Could the idea of property, an idea that was once exclusively linked with power, and which wields lesser but still formidable power now, be the problem itself? Could the abolition of private property be the means of overcoming the accumulation of private wealth with legal protection to the detriment of adjacent land, rivers, oceans and atmosphere?

Were use of property influenced not by private interests in an economically driven society but by a truly communal, active, local community, the considerations of local environmental features effected by any action taken on that community’s land would receive paramount recognition and protection, and not a disconnected, procedural, uninterested view that such consideration generally receive now.

Such a change would need to be preceded by changes both in societal organisation and in psyche. The time for economic rationalisation of all actions and the strive for global economic growth would need to be replaced with concern for local issues and communal provision of the necessities for life such as shelter, food, water and clothing. Personal growth and satisfaction would need to flow away from consumptive self-gratification and into self-awareness, awareness of other people and awareness of other living things. Rights dependent on legal proclamation need to be replaced by universal rights of all beings, whether human, faunal, floral or natural.

The future of protecting environmental qualities requires more than just further incremental encroachments on historical ideals of rights to property and profit, attempting to leave the remainder of the economic system intact. It requires a relinquishing of these ideas, replaced with small-scale, communal, self-sufficient, conscious and conscientious existence.

The Separation of Reality and State

The post below is a copy of my submission to the Planet Ark World Environment News Letter to the Editor Competition, entitled “The Separation of Reality and State”.

Below is my letter to the Editor in response to the article “BP will not be banned from offshore lease sale”, which can be found here.

Dear Editor,

What an outrageous statement!

“Do you administer the administrative death penalty based on one incident?” Michael Bromwich asks himself.

Perhaps he should ask Troy Davis!

But the State sanctioned destruction of human life is a matter for another context. The State sanctioned destruction of the biosphere is the alarm that imminently sounds.

Surely the imposition of capital venture over public land for the sole benefit of State and Multinational Corporation, to the dismay and despite the condemnation of the people, would have George Washington, and all those who have fought for the liberty of people from the wishes of an overarching power, turning in his and their graves respectively.

Pierre-Joseph Proudhon once proclaimed “property is theft!”

Indeed it is. And, indeed, it is destructive. And, indeed, such extensions of proprietary right to the company with the most capital to purchase it, regardless of the possible consequences to not only that which it has acquired but to all other land, all other fauna, and all other flora, is reckless endangerment of life.

But, with the increasing separation of the person from the State and the Corporation (both of which are figments of legal and historical imagination), increasing are the barriers to stop people, people who are connected to the land, to the sea, to the plants and to the animals, from being able to assert their own right.

The right to protect what they enjoy. The right to protect these elements of our world, not only for the benefit of human-kind, but for each of these elements to exist in their own right.

The vast majority of individuals have grave issues with the disaster in the western Gulf of Mexico, both for its environmental effect and its human death toll.

Not that an individual could cause such painful devastation, but should he or she do so, through his or her own negligence and the taking of short-cuts, the sanction imposed upon them through the mechanisms of State power would be crushing.

And yet, the corporate veil again exists to limit the extraction of retribution to a mere monetary one (both in sense of form and size) without any restriction of liberty that a natural person would have imposed upon him or her, let alone on their ability to partake in a similar activity again.

I admit that my first temptation on reading the article was to criticise the administrative decision to allow BP to participate in the lease sale.

However, the problem is far deeper than of just one administrative action.

It is a problem of societal systems.

Systems that allow decisions to be made, apparently on behalf of the governed but yet made whilst far removed from the governed, to allow companies to build private wealth and capital.

It is this system which willingly allows the destruction of the biosphere, to the detriment of all.

Cameron Tout.

The importance of being NIMBY

The term NIMBY (“Not In My Back Yard”) usually has poor connotations of a person or a group complaining about a development that will effect them and shouldn’t proceed. The negative view usually arises from a suspician that the complainant only decries the development because of its personal effect, and wouldn’t care about it otherwise.

But the NIMBY is something that should be promoted, not admonished. Everyone should consider being a NIMBY themselves.

The reason?

Any medium and large scale development will have an adverse effect, whether it be on the community, the amenity and character of the area and/or the natural environment of the effected site and it’s surrounds.

Local Councils, in general, will look at the economic effects of these developments when a permit is sought. Although there are policies and guidelines causing Councils to consider non-economic effects, in a market based, GDP driven, financially focused world, it is not hard to imagine that economic considerations will take precedence.

It is through the work of those people and organisations concerned about the adverse effects of a development that force the environmental impact to take greater importance in the decision making processes of the Council and, hopefully, see inappropriate development stopped, either by the Council or by the relevant tribunal. Alternatively, greater controls or restrictions placed on the development than otherwise would have been imposed may help to protect what may have been otherwise vulnerable to destruction.

If we are to force government agencies at all levels to give greater weight to environmental issues such as habitat destruction, conservation of biodiversity and climate change, active NIMBY’s need to be everywhere.

Cormac Cullinan, an environmental lawyer, author and commentator, in discussing Wild Law jurisprudence, states:

“I have little doubt that if every person tried to heal just one tiny area of degraded and abused land in a way that strengthened their personal relationship with it, Earth governance and justice would soon flourish”.

An in depth analysis of Cullinan’s reference to Earth governance and Wild Law is beyond this particular post, but, briefly, refers to a political and societal system where the way we govern ourselves is in line with, and not paramount to, the methods and rules with which the universe and the earth governs itself and all it’s component, competing and complimentary parts.

Local people and local groups have the greatest knowledge and connection to the environment at the location of a proposed development. These voices will have the most credence when the true effects of a development need to be known. And if every community has its NIMBY individuals and NIMBY groups, very soon a development in any part of a country, a continent and, maybe one day, the world, will not be spared of a critical review of the cost of the development on the local and global environment as against the gain to be had by the developer or any other person that may benefit from the development going ahead.

For anyone who wishes to take action, you are not alone in your fight. In Australia, the Australian Network of Environmental Defender’s Offices (“the ANEDO”) provide information and assistance in every state and territory regarding planning and environment controls, and I’m sure there are similar organisations internationally. A link to the ANEDO is in my blog roll.