04 February 2016

Warren and Brandeis

'About Ned' by Charles E. Colman in (2016) 129 Harvard Law Review  128-152 comments
In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality.
Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage.
If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.
Colman notes
Because The Right to Privacy has loomed so large in the American legal consciousness for so long (and, no doubt, because it has been invoked in Supreme Court decisions on some of the most controversial issues of the past century), many scholars have displayed curiosity about the article’s backstory. Legal historian Stuart Banner summarizes the bulk of such scholarly musings thusly: “The traditional explanation of the origin of ‘The Right to Privacy’ emphasizes Warren’s irritation with sensationalist press coverage of his daughter’s wedding.” As Banner notes, this conventional account must be apocryphal, given that Warren’s daughter was only six years old when her father took the lead on the 1890 article.
Despite the chronological impossibility of this story, scholars echoed it for decades (likely due, in part, to its appearance in another influential law review article on privacy, written by Dean William Prosser in 1960). Recently, however, more probing explanations of the article’s origin have begun to appear. Several scholars, for example, have explored the role of newly affordable and portable photographic technology in the years leading up to the article’s publication.
Even so, “what truly provoked Warren, who is thought to be the moving force behind the article, has remained a mystery.” This statement by law and journalism scholar Amy Gajda in 2008 remains accurate today, despite Gajda’scareful survey of “news coverage that might explain the authors’ personal stake in the legal crusade they launched.” Gajda, for her part, concluded that “Samuel D. Warren bristled at the way the press reported on [the prominent political family into which he married] and that such coverage motivated the article.” Yet one cannot help but feel that important pieces of the puzzle are still missing.
While no single account can ever tell “the whole story,” there is an intriguing perspective on The Right to Privacy that has not yet been explored — even as it has practically begged for attention. Resisting the urge to speculate on the reasons for the scholarly literature’s silence on the particular narrative offered here,I proceed to weave an “origin story” of The Right to Privacy of special resonance for me, in this personal, cultural, and jurisprudential moment.

10 January 2016

Commodifying Street Art

'The Law of Banksy: Who Owns Street Art?' by Peter Salib in (2016) 83(4) University of Chicago Law Review comments
Street Art – generally, art that is produced on private property not owned by the artist and without permission – has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world’s most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art’s creation – often involving artists’ clandestine application of their work to the sides of buildings owned by others – render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question. 
This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

Contracts

'Property Rights Theory: Evidence from Hollywood' by F Andrew Hanssen and Alexander Raskovich asks
What determines the boundaries of the firm? In this paper, we explore that question, using the Grossman, Hart, and Moore property rights theory (PRT) and employing a unique proxy for non-contractible investment. During the famous Hollywood studio era of the 1930s and 1940s, actors worked for movie production companies under de facto lifetime contracts, receiving fixed salaries in return for granting studios control rights and residual claims associated with the films made. Following two mid-1940s court decisions, contracts changed in ways that shifted control rights and residual claims to actors. We develop and test a model of non-contractible investment in talent discovery and find, consistent with the model’s predictions, that actors under studio contract were cast in substantially more film roles (our proxy measure of non-contractible investment in talent discovery) than their contemporaries not under contract, ceteris paribus, or than actors of later eras. We find evidence that investment by vertically integrated (into exhibition) studios was largest, as our model also predicts. In addition, we find some evidence that actor own-investment was weaker during the studio era. We discuss how the process of contracting changed in the post-studio era, and how talent agencies (representing actors) attempted to reconstitute the studio system in the 1950s and 1960s, until stopped by antitrust authorities. Our results demonstrate the importance of residual rights to non-contractible investment, as PRT predicts, while illustrating how, where impediments to legal ownership exist, long-term contracts can create ownership-like incentives. 'Property Rights Theory: Evidence from Hollywood' by F Andrew Hanssen and Alexander Raskovich asks

04 January 2016

3D Food

'3D-printed Food' by Jasper Tran in (2016) 17 Minnesota Journal of Law, Science and Technology comments
In recent years, controversies regarding 3D printing have been on the rise, with questions broadly raised over its regulation and intellectual property. Yet, legal scholars have overlooked the legal issues arising specifically from 3D-printed food. This Article fills this gap as the first to look at the issues surrounding 3D-printed food. 
The 3D printer will soon be another kitchen appliance. 3D printers can now print food, ranging from ordinary meal to personalized nutrition to edible growth (i.e. growable food). These new possibilities bring along new challenges as well. Two major issues will soon face 3D- printed food: (i) safety and (ii) labeling. This Article explores these two issues in depth.
An earlier piece by Tran on bioprinting was noted here.

In his 2016 article Tran goes on to state
Under safety, short-term consumption of 3D-printed food can result in food poisoning, whereas long-term modification of eating habit can result in permanent changes in the human body. For short-term consumption, there are two food-poisoning scenarios: (1) one or only a few individuals were poisoned from consuming 3D-printed food, or (2) a large number of people were poisoned. Furthermore, long-term modification of eating habits could lead to permanent changes in the human body in order to adapt to this new diet of consuming just strictly 3D-printed food. Labeling would likely face similar issues as the current GMO labeling debate. For instance, regardless whether 3D-printed food is safe or not and assuming consumers cannot easily discern their food’s origin, do the consumers have the right to know where their food comes from? Other labeling issues could include imitation food and economic adulteration (i.e. misleading consumers). 
This Article fleshes out these labeling issues through four scenarios: (1) a big corporation foodprints the majority of the package or the entire food package to sell to the mass population, (2) a big corporation foodprints only a small portion of the packaged food to sell to the mass population, (3) a groceries store foodprints sushi on sight before packaging it and selling to the local community, (4) an individual foodprints a meal at home. 
This Article proceeds in three parts. Part I discuses foodprinting’s background, implications and ramifications. Part II.A covers the safety issues, whereas Part II.B explores the labeling issues. Part III briefly concludes.
'Intellectual Property and 3D Printing: A Case Study on 3D Chocolate Printing' by Phoebe H. Li, Stephen Mellor, James Griffin, Charlotte Waelde, Liang Hao and Richard Everson in (2014) 9(4) Journal of Intellectual Property Law and Practice 322-332 commented
3D printing, also called Additive Manufacturing (AM), is a disruptive technology which some have argued has the potential to generate considerable economic and environmental benefits. However, and in order to realise the benefits of 3D printing, thought has to be given to the legal frameworks that support the manufacturing process from design to consumption. There are many areas of law that are relevant to this process including product liability, health and safety and environmental law. The one that will be considered in this paper is that of copyright, a branch of the law of intellectual property (IP). This paper examines 3D printing and selected copyright implications using a case study around the design and manufacture of three-dimensional chocolate products. This case study has been chosen because technology to print three-dimensional chocolates was designed and developed by Dr Liang Hao, a researcher at the University of Exeter. It also brings with it some particular challenges for the law of copyright around the co-creation process that it employs in the design of the chocolate products. The focus will be on three areas of the law of copyright, chosen because they lie at the heart of the chocolate business model, and because they are illustrative of just some of the challenges that are faced by both the law and 3D printing in responding to this new technology.
h

Certification

'Birth Certificates for Children with Same-Sex Parents: A Reflection of Biology or Something More?' by Paula Gerber and Phoebe Irving Lindner in (2015) 18(2) New York University Journal of Legislation and Public Policy 225-275 comments
While same-sex families with children are becoming increasingly commonplace, these family structures are not always accurately reflected on a child’s birth certificate. In most jurisdictions, birth certificates only allow for the inclusion of one mother and one father. This article analyzes the international and domestic laws pertaining to birth certificates to determine whether children with same-sex parents have a right to a birth certificate that accurately reflects their family structure. Who should be included on the birth certificates of children born to a lesbian couple, and how that should happen, has not been the subject of any scholarly research. This article fills this gap by analyzing the international and domestic laws and practices governing birth certificates for children of same-sex parents and identifying best practices when it comes to the information included on the birth certificates of such children.

31 December 2015

Voter Profiling

'Trends in Voter Surveillance in Western Societies: Privacy Intrusions and Democratic Implications' by Colin J Bennett in (2015) 13(3/4) Surveillance and Society surveys
the various voter surveillance practices recently observed in the United States, assesses the extent to which they have been adopted in other democratic countries, and discusses the broad implications for privacy and democracy. Four broad trends are discussed: the move from voter management databases to integrated voter management platforms; the shift from mass-messaging to micro-targeting employing personal data from commercial data brokerage firms; the analysis of social media and the social graph; and the decentralization of data to local campaigns through mobile applications. The de-alignment of the electorate in most Western societies has placed pressures on parties to target voters outside their traditional bases, and to find new, cheaper, and potentially more intrusive, ways to influence their political behavior. This paper builds on previous research to consider the theoretical tensions between concerns for excessive surveillance, and the broad democratic responsibility of parties to mobilize voters and increase political engagement. These issues have been insufficiently studied in the surveillance literature. They are not just confined to the privacy of the individual voter, but relate to broader dynamics in democratic politics.
Bennett states
Surveillance has arguably become routine, normal or “everyday” and reaches into every corner of modern life (Bennett et al. 2014). It is, according to David Lyon, “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered” (Lyon 2001: 2). And surveillance is not simply about large organizations using sophisticated technology; it is also something that individuals increasingly engage in. It is good and bad, top-down and bottom-up, and directed to humans, non-humans and spaces. It is a mode of power and central to the new forms of governance within modern and post-modern societies (Haggerty and Ericson 2006).
High-level conceptualizations about the nature and causes of surveillance help associate current practices with broad and profound structural transformations in contemporary societies (Lyon 2007). But macro- level theorizing only takes us so far in understanding the nature of individual and social risks in particular contexts (Nissenbaum 2009). Thus, surveillance has particular, and somewhat different, effects depending on whether we are consumers, employees, immigrants, suspects, students, patients or any number of other actors. Theorizing surveillance on a grand level tends not to expose the more subtle relations, norms and harms associated with the institutional and informational relations that attend the particular roles that we play and negotiate in our everyday lives. As Haggerty and Samatas remind us: “A global community of scholars has produced excellent case studies of the dynamics and normative implications of different surveillance practices, but run into more difficulty when it tries to make generalizations about surveillance tout court, often because the surveillance dynamics and implications of, say, spy satellites, are wildly different from those of DNA testing” (2010: 3).
Just as the literature speaks of consumer surveillance or employee surveillance, and analyzes the different practices and issues that arise in these different contexts as we play these different roles, so we can speak of “voter surveillance.” In our capacities as participants, non-participants or potential participants in the democratic electoral process, personal data is increasingly captured and processed about us for the purposes of regulating the fair and efficient conduct of elections and also to influence our behaviors and decisions (Bennett 2013a, 2013b). The norms, dynamics, and dilemmas are, and should be, different in this voting context.
Very little has been written in the broader academic literature about voter surveillance. There is a certain amount of important journalistic commentary on the contemporary trends in micro-targeting in the United States (Issenberg 2012), and on how these practices have been imported to Canada (Delacourt 2013). Communication scholars have analyzed the new “tech-driven” politics as part of a larger assessment of changing campaign techniques (Howard 2006; Hendricks and Kaid 2011). And a number of political scientists have tried to evaluate whether or not new media campaigns affect voter engagement and behavior (Lees-Marchment, Stromback and Rudd 2009; Small 2010; Lees-Marchment 2011; Davies and Newman 2012). Very little of this commentary, however, engages with the larger question about how data about voters is being mined and profiled, nor evaluates the individual risks to privacy and the general implications for democratic politics.
This paper is intended to begin to fill that gap and inspire further analysis and research. The first section of the paper draws upon previous research to distill some of the most important trends in political campaigning, which has implications for the capture and processing of personally identifiable data. The paper then analyses how these practices are likely to influence the democratic politics of different states depending on different electoral practices and party systems. It then offers a set of broader theoretical reflections about the implications for democratic practice, drawing upon the recent literature on the complex and paradoxical tensions between surveillance and democracy (Haggerty and Samatas 2010).
He concludes -
It is widely assumed that surveillance and democracy lie at opposite ends of a normative continuum (Haggerty and Samatas 2010: 1). Despite the insistence from Lyon (2001) and others that it should be framed in neutral terms, surveillance still assumes a place in the popular consciousness as a negative force that compromises those freedoms upon which democratic societies are founded, including privacy, and freedom of speech and association. Surveillance seeks to render individual behaviors and preferences transparent in ways that make them conform to pre-existing categories and norms. It inspires conformity, control, and obedience. It discourages the individualism, autonomy, and creativity that democracy requires and thrives upon. As Paul Schwartz remarks, surveillance has “a negative impact on individual self- determination; it makes it difficult to engage in the necessary thinking out loud and deliberation with others upon which choice-making depends (1999: 1701).
The anti-democratic nature of surveillance is reinforced by the prevalence of Orwellian and Kafaesque metaphor and imagery. Various symbols have been used over the years to equate excessive surveillance with the slippery slope to authoritarian repression. That message is continually reinforced by a network of privacy activists that engage in a symbolic politics to create awareness and expand their networks (Bennett 2008: 106-7). We are currently in the middle of a wide-ranging international debate about the appropriate role for security and intelligence services in the wake of the revelations from National Security Agency whistle-blower Edward Snowden. The bewildering range of surveillance programs initiated without appropriate accountability and oversight by the National Security Agency, and its sister organizations in the “Five-Eyes” countries, are generally challenged because of their fundamentally anti-democratic nature (Greenwald 2014).
If it were discovered that the NSA had backdoor access to the kind of voter management databases described above, then similar denunciations would no doubt occur and be justified. Thus, it is not difficult to find arguments that the practices described above are also, fundamentally undemocratic, or even anti- democratic. These tactics might be criticized for their tendency to treat citizens as unthinking consumers, ready to respond with their votes in the same way that they respond with their money. Micro-targeting divides us into niche markets and avoids the hard work of building consensus and national visions. It arguably creates parties and candidates that do not convey a general ideological framework for governance, but a series of carefully chosen, focus-group analyzed, messages to key segments of the electorate in key marginal districts. This messaging need not be internally consistent, nor framed within a larger set of policy ideas. Thus parties only need to mobilize key voters in key places; and if the votes of others are suppressed, then so be it. In her analysis of these trends in Canada, Delacourt (2013: 328) concludes: “Instead of turning consumers into citizens, it has accomplished the reverse. Canadian politics went shopping for votes, and the voters went shopping.” The science of “winning elections” may have the effect of turning people off the political process.
A critical response to voter surveillance, and the consumerization of the political, would contend that the practices surveyed above discourage engagement and deliberation, in favor of the increasing individualization of political space in which we are assumed to have preferences and tastes that only need to be unearthed using the most sophisticated technology to determine what public policies and goods voters “want”: a tax break here; a subsidy there; an improvement to the local school; a clean-up of the neighborhood lake; and so on. Thus the critique of voter surveillance might sit comfortably within a broader critique of neo-liberal governance and of the shrinking public sphere.
The argument is more complex, however. Political parties have a responsibility to mobilize and educate supporters. In so doing, they attempt to promote higher levels of participation and engagement in the political process. Voter surveillance practices have, in part, emerged as a response to the failures of traditional and crude forms of mass messaging through television. Arguably parties can encourage more people to vote and reinforce voters’ agency, if they know more about their beliefs and preferences. There may be some evidence that the 2008 and 2012 presidential campaigns in the United States, the first to be waged with the full range of new media technology to reach voters of all demographic and socio- economic characteristics did, indeed, have a small, but noticeable impact on participation rates and voter engagement, particularly among the younger “millennial generation” (Hendricks and Kaid 2011).
There will continue to be debate about the extent to which the increase in voter turnout in these elections, and among this age group, is attributable to new media and micro-targeting, but the point remains that voter surveillance is not necessarily anti-democratic. At least, the public interest on the other side of the equation is different. The balance is not between the privacy interest and security, nor between privacy and the profit-motive. Instead, we confront a rather different set of interests that need careful consideration and weighing before condemning or regulating the ways that candidates and parties capture data on citizens and use that information to encourage political engagement and participation. Those issues have not been thoroughly analyzed in democratic theory, nor subjected to rigorous empirical examination in different states with different legal requirements and electoral tradition.
At root the contestation of values is reflected in two broad and rich traditions of democratic theory. The first is a liberal vision, which sees the main test of democracy as a representative system, based on majority rule but with established constitutional protections for minority and individual rights. Privacy has tended to be regarded and justified within a broad liberal paradigm (Bennett and Raab 2006) and plays an important role within liberal democratic theory because it: prevents the total politicizing of life; promotes the freedom of association; shields scholarship and science from unnecessary interference by government; permits the use of a secret ballot; restrains improper police conduct such as compulsory self-incrimination and unreasonable searches and seizures; and it serves also to shield institutions, such as the press, that operate to keep government accountable (Westin 1970: 25). So, under this dimension, privacy is protective of individuals and specific organizations from obtrusive invasions that would detrimentally affect their ability to participate in politics or go about daily life.
A second broad tradition sees the test of democracy less in the protection of rights, and more in the participation of a citizenry to take charge of its own affairs. As the liberal democratic tradition has been strained under increasing levels of partisan de-alignment and voter apathy, so scholars have renewed interest in a more “participatory” forms of democratic practice (Pateman 1970). If one creates a more participatory environment, people will be more prepared for the tasks of self-government. Engagement in social and community institutions raises the stock of “social capital” (Putnam 1993), levels of interpersonal trust, and the ability of individuals to translate the “I” into the “we.” As Pateman argues: “individuals learn to participate by participating” (2012: 15).
There may be, however, a less critical response to voter surveillance, which sees the attempt to discover preferences and patterns as a more benign, efficient and legitimate way to reach voters and connect with them about public policy. The conversation on the doorstep, over the phone, or in the social media environment, can therefore be more in tune with what voters perceive and desire. Thus, voter surveillance, like surveillance more generally, is “Janus-faced” (Lyon 2001). It at least requires us to analyze and judge its complex dynamics according to a different set of criteria than those used when we evaluate the security practices of the state, or the profit-driven consumer monitoring by the private sector.

30 December 2015

Heydon RC Recommendations

The recommendations of the Heydon Royal Commission noted here are
R1 Commonwealth and State governments give consideration to adopting a national approach to the registration, deregistration and regulation of employee and employer organisations, with a single regulator overseeing all such organisations throughout Australia. 
R2 State governments give consideration to the recommendations concerning the Fair Work (Registered Organisations) Act 2009 (Cth) with a view to implementing, where appropriate, those recommendations in State legislation governing State-registered organisations. 
R3 All regulatory functions of the General Manager of the Fair Work Commission and the Fair Work Commission insofar as they apply to registered organisations under the Fair Work (Registered Organisations) Act 2009 (Cth) be transferred to a new Registered Organisations Commission. The Registered Organisations Commission should be an independent stand-alone regulator. The structure of the Australian Securities and Investments Commission may provide a useful legislative model. 
R4 The Commonwealth government ensure that the registered organisations regulator is properly resourced to carry out its functions, with a separate budget for which it is accountable. 
R5 Sections 330 and 331 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to allow the registered organisations regulator to make inquiries and conduct investigations as to whether criminal offences contrary to the Fair Work (Registered Organisations) Act 2009 (Cth) have occurred. The meaning of the ‘rules of a reporting unit relating to its finances or financial administration’ be clarified to include any rules concerning officers or employees that may have a direct or indirect effect on the finances or financial administration of a reporting unit. 
R6 The registered organisations regulator have information-gathering and investigative powers similar to those conferred on the Australian Securities and Investments Commission. In particular, the registered organisations regulator be given a general power to inspect the books and records of an organisation for the purpose of ensuring compliance with the Fair Work (Registered Organisations) Act 2009 (Cth). 
R7 Amendments be made to the Fair Work (Registered Organisations) Act 2009 (Cth) to amplify the existing enforcement powers of the registered organisations regulator. In particular: (a) ss 336(1) and 336(2)(a) be amended to clarify that the registered organisations regulator may take action in relation to breaches of rules by persons other than a reporting unit; and (b) the registered organisations regulator have a power to accept an enforceable undertaking. 
R8 Section 154D of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a statutory provision requiring: (a) all members of the committee of management of an organisation or branch, and all officers whose duties relate to the financial management of the organisation or branch, to undertake approved training; and (b) the Secretary of an organisation or branch to ensure that employees of the organisation or branch involved with the finances or financial administration of the organisation or branch complete approved training. The registered organisations regulator’s power to conduct inquiries and investigations should include contraventions of this statutory provision. Contravention by a person of the statutory obligations should entitle the registered organisation regulator to disqualify the person from acting as an officer of an organisation or branch for a period of up to two years. 
R9 Section 141(1)(ca) of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed. A new civil penalty provision be introduced requiring organisations and branches to adopt, in accordance with their rules, policies binding on all officers and employees concerning financial management and accountability. The required policies should include policies concerning financial decision-making, receipting of money, levels of authorisation of expenditure, credit cards, procurement, hospitality and gifts, the establishment, operation and governance of related entities and any other matter prescribed by regulations. Organisations or branches should be required to review their policies every four years and to lodge a copy of their current policies with the registered organisations regulator. 
R10 A new division dealing with financial disclosures by ‘reporting units’ to their members be introduced to Part 3 of Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) to replace and strengthen existing provisions concerning financial disclosure. The regime would require ‘reporting units’ to lodge audited financial disclosure statements with the registered organisations regulator on discrete topics, including (a) loans, grants and donations by the reporting unit, (b) remuneration of officers and (c) credit card expenditure. Civil penalties should apply to reporting units that fail to comply with their obligations under the regime. Further, civil penalties should also apply to officers who knowingly or recklessly make a false statement in a financial disclosure statement. 
R11 Officers with responsibility for ensuring compliance by a reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth) be subject to civil penalties if they fail to take all reasonable steps to ensure the reporting unit complies with its financial obligations. 
R12 All reporting units be required to appoint a financial compliance officer with responsibility for ensuring compliance by the reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth), regulations and reporting guidelines and the reporting unit’s financial policies and rules concerning finances. The financial compliance officer must be separate and independent from the Secretary. The compliance officer be subject to a statutory obligation to report any reasonably suspected breaches to the committee of management. 
R13 Auditors of reporting units be required to be registered with the registered organisations regulator. A person be entitled to be registered if the person is either (a) a registered company auditor or (b) if the registered organisations regulator is satisfied that the person has the required accounting qualifications and is a fit and proper person. The registered organisations regulator be empowered to suspend or cancel registration if satisfied that the person is (a) not a fit and proper person or (b) has failed to comply with the duties of an auditor under the Fair Work (Registered Organisations) Act 2009 (Cth). 
R14 In order to improve auditor independence: (a) The definition of ‘excluded auditor’ be expanded to include a broad class of individuals who may lack independence including any person in a ‘conflict of interest situation’. (b) The auditor rotation requirements of the Corporations Act 2001 (Cth) be applied to auditors of all reporting units. 
R15 The existing civil penalty provisions for contraventions by auditors be retained. However, the maximum penalty for an individual be increased from 60 penalty units to 200 penalty units, with the maximum penalty for a body corporate being 1,000 penalty units. 
R16 A new civil penalty provision be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) requiring organisations and branches to make and keep minutes recording the proceedings and resolutions of committee of management meetings. Documents and papers that are necessary to refer to in order to understand the effect of the minutes also be kept. The documents be retained for a minimum of 7 years. The minutes and associated documents be available upon request by members of the organisation free of charge. 
R17 The obligation to keep financial records in s 252 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to be made a civil penalty provision. 
R18 The categories of persons who can make a protected disclosure under s 337A(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be expanded to include: (a) a former officer, employee or member of an organisation or branch; and (b) a person contracting for the supply of goods or services, or otherwise dealing with an organisation or branch of an organisation (or an officer or employee of an organisation or branch on behalf of the organisation or branch); and (c) an officer of employee of a person mentioned in (b). 
R19 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require the regulatory authorities entitled to receive a protected disclosure to investigate the disclosure within a specified period. 
R20 Section 337C of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a provision in similar terms to s 19 of the Public Interest Disclosure Act 2013 (Cth) prohibiting reprisal action against whistleblowers. This would lead to an increase in the existing maximum penalty for reprisal to two years’ imprisonment, or a fine of 120 penalty units, or both. 
R21 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended so that a person convicted of an offence against s 337C is automatically disqualified from holding office in an organisation or branch. 
R22 Provisions similar to ss 15 and 16 of the Public Interest Disclosure Act 2013 (Cth) be enacted to enable a whistleblower who is the victim of reprisal action to obtain a mandatory injunction, an apology or an order of reinstatement to employment. 
R23 Section 190 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to prohibit an organisation or branch using, or allowing to be used, its property or resources to help a candidate in an election for office in any registered organisation or branch. This recommendation is reflected in the model legislative provisions in Appendix 1 of Volume 5 of the Report. 
R24 No recommendation is made to repeal ss 182(2), 183–186 of the Fair Work (Registered Organisations) Act 2009 (Cth) at this time. On the assumption that those sections remain, that Act be amended to require an organisation or branch that has an exemption under s 186 to lodge a report with the registered organisations regulator after the completion of an election conducted pursuant to the exemption. The report should include details about how the election was conducted, whether any complaints were received and how those complaints have been addressed. 
R25 The definition of ‘office’ in s 9 of Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include, in addition: (a) an office of financial compliance officer of the organisation or branch; (b) an office of a person who makes, or participates in making, decisions that affect the whole or a substantial part, of the organisation or branch; (c) an office of a person who has the capacity to affect significantly the financial standing of the organisation or branch; and (d) an office of a person in accordance with whose instructions or wishes the members of the committee of management of the organisation or branch are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the organisation or branch). 
R26 Section 283 of Fair Work (Registered Organisations) Act 2009 (Cth) be repealed to align the statutory duties of officers of registered organisations with their general law duties. 
R27 Section 286(1)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting the words ‘honestly and reasonably’ before the word ‘believes’. 
R28 The civil penalties for contravention of ss 285-288 of the Fair Work (Registered Organisations) Act 2009 (Cth) be substantially increased. A distinction should be drawn between a ‘serious contravention’ and other contraventions. The maximum penalty for a ‘serious contravention’ should be 1,200 penalty units (currently $216,000) with no penalty for a contravention that is not a ‘serious contravention’. No distinction should be drawn between paid officers and volunteers. ‘Serious contravention’ should be defined as proposed in the Fair Work (Registered Organisations) Amendment Bill 2014 [No 2] (Cth). Consideration should also be given to amending the Corporations Act 2001 (Cth) to specify the maximum penalty for breaches of directors’ duties by reference to 1,200 penalty units rather than the fixed amount of $200,000. 
R29 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by introducing a new s 290A that imposes criminal liability on officers of registered organisations or branches who dishonestly or recklessly breach the statutory duties imposed on them by ss 286-288 of the Fair Work Registered Organisations Act 2009 (Cth). The section be modelled principally on s 184 of the Corporations Act 2001 (Cth), except that the reference in s 184(1) to ‘intentionally dishonest’ should be replaced by ‘dishonest’. The maximum penalty should be the same as that under the Corporations Act 2001 (Cth), being 2,000 penalty units ($360,000) or five years’ imprisonment, or both. 
R30 New s 293A be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) prohibiting an organisation or a branch of an organisation (or any related entity of the organisation or branch including any State registered organisation or branch) from indemnifying, paying or reimbursing an officer of the organisation or branch for any fine or civil penalty imposed on the officer for conduct in connection with the organisation or branch. The provision may usefully be based on ss 199A-199C of the Corporations Act 2001 (Cth). Contravention should be a criminal offence of strict liability. An organisation that contravenes the provision should be subject to a maximum penalty of 500 penalty units ($90,000) and every officer involved in a contravention should be subject to a maximum penalty of 100 penalty units ($18,000). Consideration should be given to reviewing the penalties under ss 199A and 199B of the Corporations Act 2001 (Cth). 
R31 Section 148B of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a civil penalty regime that, broadly speaking, requires officers of registered organisations and branches of registered organisations to disclose material personal interests that they, or their relatives, have or acquire in relation to the affairs of the organisation or branch. Key features of a suggested regime are set out in the body of the report. Consideration should also be given to increasing the penalty for contravention of s 191 of the Corporations Act 2001 (Cth). 
R32 A provision similar to s 195 of the Corporations Act 2001 (Cth) be introduced to the Fair Work (Registered Organisations) Act 2009 that, in broad terms, prevents officers of an organisation or branch who have a disclosable material interest in a matter from being present during any deliberation, or being involved in any decision, about the matter. The provision should be a civil penalty provision with a maximum penalty of 100 penalty units. 
R33 New provisions, modelled on ss 236-242 of the Corporations Act 2001 (Cth), be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) allowing a current or former member or current or former officer of a registered organisation or branch of the organisation to apply to a State Supreme Court or the Federal Court for leave to bring, or intervene in, a proceeding on behalf of a registered organisation. 
R34 The provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) (ss 297-303A) concerning breach of orders be amended to include orders made by the Federal Circuit Court. 
R35 The maximum penalty for breach of the provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) concerning breach of court orders by officers and employees of registered organisations or branches be increased to 1,200 penalty units. 
R36 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include an offence under a law of the Commonwealth, a State or Territory, or another country, which is punishable on conviction by a maximum penalty of imprisonment for life or 5 years or more. 
R37 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to make it a criminal offence for a person who is disqualified from holding office in a registered organisation to continue to hold an office. The offence should be an offence of strict liability with a maximum penalty of 100 penalty units or imprisonment for two years, or both. 
R38 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting a new provision giving the Federal Court jurisdiction, upon the application of the registered organisations regulator, to disqualify a person from holding any office in a registered organisation for a period of time the court considers appropriate. The court should be permitted to make such an order if the person: (a) has, or has been found to have, contravened a civil remedy provision of the Fair Work Act 2009 (Cth), or a civil penalty provision of the Fair Work (Registered Organisations) Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth); (b) has been found liable for contempt; (c) has been at least twice an officer of a registered organisation that has, or has been found to have, contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth) or has been found liable for contempt while the person was an officer and each time the person failed to take reasonable steps to prevent the contravention or the contempt; (d) has, or has been found to have, at least twice contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth); or (e) is otherwise not a fit and proper person to hold office within a registered organisation or branch; and the Court is satisfied that the disqualification is justified. 
R39 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require reporting units to lodge an audited financial disclosure statement (see Recommendation 10) providing details in respect of (a) loans, grants and donations (including in-kind donations) made to reporting units in excess of $1,000 and (b) other payments made to reporting units in excess of $10,000. 
R40 Legislation be enacted amending the Fair Work Act 2009 (Cth) to include a provision criminalising the giving or receiving of corrupting benefits in relation to officers of registered organisations, with a maximum term of imprisonment of ten years.  
R41 Legislation be enacted amending the Fair Work Act 2009 (Cth) making it a criminal offence for an employer to provide, offer or promise to provide any payment or benefit to an employee organisation or its officials. Certain legitimate categories of payment should be permitted, subject to strict safeguards. An equivalent criminal offence should apply to any person soliciting, receiving or agreeing to receive a prohibited payment or benefit. A two year maximum term of imprisonment should apply to the commission of these offences. 
R42 Consideration be given, in consultation with the Australian Accounting Standards Board, to amending the Fair Work (Registered Organisations) Act 2009 (Cth) to require reporting units to prepare consolidated financial statements, as well as separate financial statements for the reporting unit’s controlled entities. Consideration also be given to repealing s 148C of the Fair Work (Registered Organisations) Act 2009 (Cth). 
R43 The Fair Work Act 2009 (Cth) be amended to prohibit any term of a modern award, enterprise agreement or contract of employment permitting an employer to deduct, or requiring an employee to pay, from an employee’s salary an amount to be paid towards an election fund. 
R44 Provisions be introduced into the Fair Work (Registered Organisations) Act 2009 (Cth) concerning the registration of election funds in relation to elections for office in registered organisations or their branches. In order to be registered, election funds should be required to meet certain minimum governance standards, operate a separate bank account for election donations and expenditures, and report annually in relation to the operation of that account. Unregistered election funds should not be permitted to receive election donations or make electoral expenditures in connection with elections for office in any registered organisation or branch. This recommendation is reflected in model legislative provisions in Appendix 1 to Volume 5 of the Report. 
R45 Legislation, either standalone or amending the Corporations Act 2001 (Cth), be enacted dealing comprehensively with the governance, financial reporting and financial disclosures required by worker entitlement funds. The legislation should provide for registration of worker entitlement funds with the Australian Securities and Investments Commission, and contain a prohibition on any person carrying on or operating an unregistered worker entitlement fund above a certain minimum number of persons. Key recommended features of the legislative scheme are explained at paragraphs 93 and 95 of Volume 5, Chapter 5 of the Report. 
R46 In consequence of the enactment of the legislation recommended by Recommendation 45, Class Order [CO 02/314] not be extended. In further consequence, s 58PB of the Fringe Benefits Tax Assessment Act 1986 (Cth) be repealed and the fringe benefits tax exemption in s 58PA(a) be amended to refer to registered worker entitlement funds. 
R47 Amendments be made to Chapter 7 of the Corporations Act 2001 (Cth), or relevant regulations, requiring specific disclosure by registered organisations of the direct and indirect pecuniary benefits obtained by them in connection with employee insurance products. The detail and mechanism should be a matter of consultation. In broad terms, the provisions should require: (a) a branch of a registered organisation, and an officer of a branch of a registered organisation, (b) that arranges or promotes a particular insurance product providing cover for employees of an employer, or refers an employer to a person who arranges or provides such a product (whether in enterprise bargaining or otherwise), (c) to disclose in writing to the employer in no more than two pages the nature and quantum of all direct and indirect pecuniary benefits that the branch or any related entity receives or expects to receive, or which are available only to the branch’s members, from the issuer of the product, or any arranger or promoter, or any related entity. 
R48 The Fair Work Act 2009 (Cth) be amended to require an organisation that is a bargaining representative to disclose all financial benefits, whether direct or indirect, that would or could reasonably be expected to be derived by the organisation, an officer of the organisation or a related entity as a direct or indirect consequence of the operation of the terms of a proposed enterprise agreement. A short, simple and clear disclosure document should be provided to all employees before they vote for an enterprise agreement. 
R49 Section 194 of the Fair Work Act 2009 (Cth) be amended to make unlawful any term of an enterprise agreement requiring or permitting contributions for the benefit of an employee to be made to any fund (other than a superannuation fund) providing for, or for the payment of, employee entitlements, training or welfare unless the fund is: (a) a registered worker entitlement fund (see Recommendation 45); or (b) a registered charity. 
R50 A new civil remedy provision be added to the Fair Work Act 2009 (Cth) prohibiting a person from organising or taking (or threatening to organise or take) any action, other than protected industrial action, with intent to coerce an employer to pay amounts to a particular employee benefit fund, superannuation fund or employee insurance scheme. 
R51 Sections 32C(6), (6A), (6B), (7) and (8) of the Superannuation Guarantee (Administration) Act 1992 (Cth) be repealed, and all other necessary amendments be adopted to ensure all employees have freedom of choice of superannuation fund. 
R52 The Competition and Consumer Act 2010 (Cth) be amended so that the penalties for breaches of ss 45D, 45DB, 45E and 45EA are the same as those that apply to other provisions of Part IV of that Act. 
R53 The Competition and Consumer Act 2010 (Cth) be amended to clarify that to prove the existence of an arrangement or understanding, it is not necessary to establish that there be communication between each of the parties to the arrangement or understanding, merely that they hold the same understanding. 
R54 Sections 45D(1)(b), 45DA(1)(b) and 45DB(1) of the Competition and Consumer Act 2010 (Cth) be amended to provide that those sections are contravened where the conduct is engaged in for the purpose, or would have or be likely to have the effect, of causing the consequence identified in those sections. 
R55 The Competition and Consumer Act 2010 (Cth) be amended to provide that a person in competition with the fourth person referred to in ss 45D or 45DA must not knowingly engage in supply or acquisition of services to or from any third persons referred to in those sections with knowledge of the contravention by the first and second persons without first notifying the Australian Competition and Consumer Commission. Contravention of the provision should be a civil penalty provision. 
R56 The Australian Competition and Consumer Commission give consideration to whether its immunity policy in respect of the cartel provisions could usefully be extended to secondary boycott conduct and conduct indirectly leading to a secondary boycott. 
R57 The building and construction industry regulator have concurrent power with the Australian Competition and Consumer Commission to investigate and enforce secondary boycott conduct, and conduct indirectly leading to a secondary boycott, in contravention of the Competition and Consumer Act 2010 (Cth). 
R58 The Australian Competition and Consumer Commission and the building and construction industry regulator report to the responsible Minister and publish the results of all complaints and investigations made concerning, and all proceedings to enforce, the secondary boycott provisions on an annual basis. 
R59 The Competition and Consumer Act 2010 (Cth) be amended to make explicit that: (a) an enterprise agreement under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding for the purposes of the Competition and Consumer Act 2010 (Cth); and (b) an enterprise agreement that applies to an employer and an employee organisation under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding that an employer has with the organisation of employees for the purposes of s 45E of the Competition and Consumer Act 2010 (Cth). 
R60 For the purpose of seeking to combat the culture of disregard for the law within the Construction, Forestry, Mining and Energy Union, consideration be given to the enactment of special legislation disqualifying those officers of the Construction, Forestry, Mining and Energy Union that Parliament considers are not fit and proper persons from holding office in any registered organisation or branch for a specified period. 
61 There should continue to be a building and construction industry regulator, separate from the Office of the Fair Work Ombudsman, with the role of investigating and enforcing the Fair Work Act 2009 (Cth) and other relevant industrial laws in connection with building industry participants. 
R62 Legislation be enacted conferring the building and construction industry regulator with compulsory investigatory and information gathering powers equivalent to those possessed by other civil regulators. The powers set out in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) appear appropriate in this regard. 
R63 There should be oversight by the Commonwealth Ombudsman of the powers exercised by the building and construction regulator in the manner provided for in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth). 
R64 Consideration be given to redrafting the use/derivative use immunity provisions in clauses 102 and 104 of the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) to provide protections equivalent to those available in relation to the powers exercised by the Australian Securities and Investments Commission. 
R65 The building and construction industry regulator continue to investigate and enforce the Fair Work Act 2009 (Cth) and other existing designated building laws. The power of the building and construction industry regulator to commence and maintain enforcement proceedings should not be constrained according to whether any other proceedings in respect of the same conduct have been settled. Accordingly, ss 73 and 73A of the Fair Work (Building Industry) Act 2012 (Cth) should be repealed. 
R66 The Fair Work Act 2009 (Cth) be amended: (a) to increase the maximum penalties for contraventions of ss 343(1), 348 and 355 (coercion) and ss 417(1) and 421(1) (prohibited industrial action) to 1,000 penalty units for a contravention by a body corporate and 200 penalty units otherwise; and (b) to provide that picketing by employees or employee associations is ‘industrial action’, and to deal specifically with the consequences of industrially motivated pickets. 
R67 The civil penalties for contravention of Part 3-4 of the Fair Work Act 2009 (Cth) be increased. The maximum penalty be increased to 1,000 penalty units (currently $180,000). The maximum penalty for contravention of Part 7 of the Work Health and Safety Act 2011 (Cth) be set at $180,000. Consideration also be given to expressing penalties in the Work Health and Safety Act 2011 (Cth) in terms of penalty units rather than dollar amounts. 
R68 Section 513 of the Fair Work Act 2009 (Cth) be amended to include additional permit qualification matters. The additional permit qualification matters are set out in the model legislative provisions in Appendix 1 to Volume 5 of the Report. 
R69 A new provision be inserted into Fair Work Act 2009 (Cth) which requires permit holders to complete approved right of entry training annually in relation to the rights and responsibilities of permit holder. 
R70 A new provision 512A be inserted into the Fair Work Act 2009 (Cth) which creates an obligation on both a registered organisation and an applicant for a right of entry permit to disclose the permit qualification matters. Significant penalties should be imposed for failing to comply with this section.  
R71 Section 510 of the Fair Work Act 2009 (Cth) be amended so that it requires a right of entry permit to be suspended or revoked by the Fair Work Commission if: (a) an official has failed to complete approved training; or (b) a new permit qualification matter has arisen which means the official is no longer a fit and proper person.  
R72 Section 515 of the Fair Work Act 2009 (Cth) be amended by inserting at the end of subsection (1) the words ‘to a fit and proper person’. 
R73 Section 119 of the Work Health and Safety Act 2011 (Cth) and the equivalent provisions of the equivalent State Acts be repealed and replaced with new ss 119 and 119A which provide that prior written notice of entry is to be provided except where the permit holder has a reasonable concern that (a) there has been or is contravention of the Act and (b) that contravention gives rise to a ‘serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard’. 
R74 The Work Health and Safety Act 2011 (Cth) be amended so as to make it clear that the burden of proving that a permit holder has a suspicion that is reasonable for the purposes of s 117(2) or a concern that is reasonable for the purposes of s 119A lies with the person asserting that fact. 
R75 The Fair Work Act 2009 (Cth) and Work Health and Safety Act 2011 (Cth) and the equivalent State Acts be amended to prohibit the exercise of rights of entry by more than two permit holders of the same organisation on the one workplace at the same time. 
R76 The Fair Work Act 2009 (Cth) be amended so that permit holders exercising rights under s 482 or s 483 of that Act must leave a site within a reasonable time if requested to do so by a Fair Work Inspector or Fair Work Building Industry Inspector who is on the site. Further, the Work Health and Safety Act 2011 (Cth) and equivalent State Acts be amended so that permit holders exercising rights under those Acts must leave a site within a reasonable time if requested to do so by an inspector who is on the site. Consequential amendments be made to: (a) confer powers on Fair Work Inspectors, Fair Work Building Industry Inspectors and inspectors under the Work Health and Safety Act 2011 (Cth) to make the above requests; and (b) create civil penalty offences for failure to comply with such requests. 
R77 The Royal Commissions Act 1902 (Cth) be amended to dispense with the requirement for personal service of a summons or notice to produce in circumstances where: (a) a solicitor accepts service on behalf of the addressee; (b) the addressee agrees to an alternative method of service; or (c) (in relation to a notice to produce only) the addressee has been served with a notice to produce previously by the Royal Commission in question, whether that notice was effected personally or otherwise. 
R78 The Royal Commissions Act 1902 (Cth) be amended to increase the penalties for a failure to comply with a summons to attend, a failure to comply with a notice to produce, a failure to be sworn or answer questions, and a failure or refusal to provide documents to at least a maximum penalty of two years’ imprisonment or a fine of 120 penalty units, or both. 
R79 The provisions relating to the reception and use of surveillance device evidence in the Surveillance Devices Act 2004 (Cth) in relation to Royal Commissions be reviewed.