08 October 2019

Parody

'Fame, Parody, and Policing in Trademark Law' by Mark A. Lemley in (2019) Michigan State Law Review comments
 Trademark owners regularly overreach. They often threaten or sue people they have no business suing, including satirists, parodists, non-commercial users, and gripe sites. When they do, they often justify their aggressive legal conduct by pointing to the need to protect their trademarks by policing infringement. Courts have in fact indicated at various points that policing is, if not strictly necessary, at least a way to strengthen a mark. But courts have never held that efforts to block speech-related uses are necessary or even helpful in obtaining a strong mark. Several scholars have accordingly argued that overzealous policing is unnecessary, that it has harmful effects, and that we ought to punish it. But trademark owners continue to do it, in part because it is largely (though not completely) costless and because if there is even a chance a failure to police will cost you your trademark you won’t want to take the chance. So trademark law currently not only doesn’t prevent overreaching; it affirmatively encourages it. 
In this article, I suggest a way that we can align trademark owner enforcement incentives with good public policy. The presence of unauthorized parodies, satires, and complaint sites involving a mark should be evidence of the fame of the mark, and perhaps even a requirement for status as a famous mark. Taking this approach would be consistent with what we know about how society interacts with trademarks. Famous marks become part of a social conversation in a way that ordinary marks don’t. My approach has empirical support: the best-known brands draw more parodies and criticism sites than non-famous marks, and those parodies don’t interfere with the fame of the mark. And it would give trademark owners an affirmative reason to leave critics, satirists, and parodists alone.

07 October 2019

Infernal Engines

The Immoral Machine' by John Harris in (2019) Cambridge Quarterly of Healthcare Ethics comments
In a recent paper in Nature entitled ‘The Moral Machine Experiment’, Edmond Awad, et al make a number of breathtakingly reckless assumptions, both about the decisionmaking capacities of current so-called ‘autonomous vehicles’ and about the nature of morality and the law. Accepting their bizarre premise that the holy grail is to find out how to obtain cognizance of public morality and then program driverless vehicles accordingly, the following are the four steps to the Moral Machinists argument:
(1) Find out what ‘public morality’ will prefer to see happen; 
(2) On the basis of this discovery, claim both popular acceptance of the preferences and persuade would-be owners and manufacturers that the vehicles are programmed with the best solutions to any survival dilemmas they might face; 
(3) Citizen agreement thus characterized is then presumed to deliver moral license for the chosen preferences; 
(4) This yields ‘permission’ to program vehicles to spare or condemn those outside the vehicles when their deaths will preserve vehicle and occupants.
This paper argues that the Moral Machine Experiment fails dramatically on all four counts.
Harris' critique concerns 'The Moral Machine experiment' by Edmond Awad, Sohan Dsouza, Richard Kim, Jonathan Schulz, Joseph Henrich, Azim Shariff, Jean-Fran├žois Bonnefon and Iyad Rahwan  in (2018) 563 Nature 59–64, in which the authors comment
With the rapid development of artificial intelligence have come concerns about how machines will make moral decisions, and the major challenge of quantifying societal expectations about the ethical principles that should guide machine behaviour. To address this challenge, we deployed the Moral Machine, an online experimental platform designed to explore the moral dilemmas faced by autonomous vehicles. This platform gathered 40 million decisions in ten languages from millions of people in 233 countries and territories. Here we describe the results of this experiment. First, we summarize global moral preferences. Second, we document individual variations in preferences, based on respondents’ demographics. Third, we report cross-cultural ethical variation, and uncover three major clusters of countries. Fourth, we show that these differences correlate with modern institutions and deep cultural traits. We discuss how these preferences can contribute to developing global, socially acceptable principles for machine ethics.
They argue
We are entering an age in which machines are tasked not only to promote well-being and minimize harm, but also to distribute the well- being they create, and the harm they cannot eliminate. Distribution of well-being and harm inevitably creates tradeoffs, whose resolution falls in the moral domain. Think of an autonomous vehicle that is about to crash, and cannot find a trajectory that would save everyone. Should it swerve onto one jaywalking teenager to spare its three elderly passengers? Even in the more common instances in which harm is not inevitable, but just possible, autonomous vehicles will need to decide how to divide up the risk of harm between the different stakeholders on the road. Car manufacturers and policymakers are currently struggling with these moral dilemmas, in large part because they cannot be solved by any simple normative ethical principles such as Asimov’s laws of robotics. 
Asimov’s laws were not designed to solve the problem of universal machine ethics, and they were not even designed to let machines distribute harm between humans. They were a narrative device whose goal was to generate good stories, by showcasing how challenging it is to create moral machines with a dozen lines of code. And yet, we do not have the luxury of giving up on creating moral machines. Autonomous vehicles will cruise our roads soon, necessitating agreement on the principles that should apply when, inevitably, life-threatening dilemmas emerge. The frequency at which these dilemmas will emerge is extremely hard to estimate, just as it is extremely hard to estimate the rate at which human drivers find themselves in comparable situations. Human drivers who die in crashes cannot report whether they were faced with a dilemma; and human drivers who survive a crash may not have realized that they were in a dilemma situation. Note, though, that ethical guidelines for autonomous vehicle choices in dilemma situations do not depend on the frequency of these situations. Regardless of how rare these cases are, we need to agree beforehand how they should be solved. 
The key word here is ‘we’. As emphasized by former US president Barack Obama, consensus in this matter is going to be important. Decisions about the ethical principles that will guide autonomous vehicles cannot be left solely to either the engineers or the ethicists. For consumers to switch from traditional human-driven cars to autonomous vehicles, and for the wider public to accept the proliferation of artificial intelligence-driven vehicles on their roads, both groups will need to understand the origins of the ethical principles that are programmed into these vehicles. In other words, even if ethicists were to agree on how autonomous vehicles should solve moral dilemmas, their work would be useless if citizens were to disagree with their solution, and thus opt out of the future that autonomous vehicles promise in lieu of the status quo. Any attempt to devise artificial intelligence ethics must be at least cognizant of public morality. 
Accordingly, we need to gauge social expectations about how autonomous vehicles should solve moral dilemmas. This enterprise, however, is not without challenges. The first challenge comes from the high dimensionality of the problem. In a typical survey, one may test whether people prefer to spare many lives rather than few; or whether people prefer to spare the young rather than the elderly; or whether people prefer to spare pedestrians who cross legally, rather than pedestrians who jaywalk; or yet some other preference, or a simple combination of two or three of these preferences. But combining a dozen such preferences leads to millions of possible scenarios, requiring a sample size that defies any conventional method of data collection. 
The second challenge makes sample size requirements even more daunting: if we are to make progress towards universal machine ethics (or at least to identify the obstacles thereto), we need a fine-grained understanding of how different individuals and countries may differ in their ethical preferences. As a result, data must be collected worldwide, in order to assess demographic and cultural moderators of ethical preferences. 
As a response to these challenges, we designed the Moral Machine, a multilingual online ‘serious game’ for collecting large-scale data on how citizens would want autonomous vehicles to solve moral dilemmas in the context of unavoidable accidents. The Moral Machine attracted worldwide attention, and allowed us to collect 39.61 million decisions from 233 countries, dependencies, or territories (Fig. 1a). In the main interface of the Moral Machine, users are shown unavoidable accident scenarios with two possible outcomes, depending on whether the autonomous vehicle swerves or stays on course (Fig. 1b). They then click on the outcome that they find preferable. Accident scenarios are generated by the Moral Machine following an exploration strategy that focuses on nine factors: sparing humans (versus pets), staying on course (versus swerving), sparing passengers (versus pedestrians), sparing more lives (versus fewer lives), sparing men (versus women), sparing the young (versus the elderly), sparing pedestrians who cross legally (versus jaywalking), sparing the fit (versus the less fit), and sparing those with higher social status (versus lower social status). Additional characters were included in some scenarios (for example, criminals, pregnant women or doctors), who were not linked to any of these nine factors. These characters mostly served to make scenarios less repetitive for the users. After completing a 13-accident session, participants could complete a survey that collected, among other variables, demographic information such as gender, age, income, and education, as well as religious and political attitudes. Participants were geolocated so that their coordinates could be used in a clustering analysis that sought to identify groups of countries or territories with homogeneous vectors of moral preferences. 
Here we report the findings of the Moral Machine experiment, focusing on four levels of analysis, and considering for each level of analysis how the Moral Machine results can trace our path to universal machine ethics. First, what are the relative importances of the nine preferences we explored on the platform, when data are aggregated worldwide? Second, does the intensity of each preference depend on the individual characteristics of respondents? Third, can we identify clusters of countries with homogeneous vectors of moral preferences? And fourth, do cultural and economic variations between countries predict variations in their vectors of moral preferences?
Harris had earlier considered 'Who owns my autonomous vehicle: Ethics and responsibility in artificial and human intelligence' in (2018) 27(4) Cambridge Quarterly of Healthcare Ethics 500–9.

NDIS Vetting

The National Disability Insurance Scheme Amendment (Worker Screening Database) Act 2019 (Cth) amends the National Disability Insurance Scheme Act 2013 (Cth) to "establish a database for nationally consistent worker screening, for the purpose of minimising the risk of harm to people with disability from those who work closely with them".

The Act reflects the February 2017 Council of Australian Governments' Disability Reform Council National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework that features a "nationally recognised approach to worker screening" and the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS, with States and Territories remaining responsible for conducting NDIS worker screening checks, including the application process and risk assessment. Under the Act a centralised database is to be hosted and administered by the NDIS Quality and Safeguards Commissioner, assisted by the NDIS Quality and Safeguards Commission (Commission), to provide and maintain current and accurate information relating to these checks. The database will be accessible to persons or bodies for the purposes of the NDIS. The collection, use and disclosure of information for the purposes of the database will be managed through pre-existing information provisions at Chapter 4 of the 2013 Act.

The total costs of developing and maintaining the database is $13.6 million over the forward estimates, of which the States and Territories are expected to contribute $6.8 million.

 The 2013 Act currently provides for the screening of workers of registered NDIS providers, through the registration requirements in sections 73B, 73E, 73F, 73J and 73T. The National Disability Insurance Scheme (Practice Standards - Worker Screening) Rules 2018 (Worker Screening Rules) provide for worker screening requirements that form part of the NDIS Practice Standards. Compliance with the NDIS Practice Standards (defined at section 73T of the Act) is a condition of registration under section 73F. The Worker Screening Rules require that workers engaged in certain work must have a clearance under the NDIS worker screening legislation of a State or Territory.

The 2019 amendment provides for the Commonwealth Minister to make a determination, via legislative instrument, that a law of a State or Territory is a 'NDIS worker screening law' for the purposes of the definition of that term in section 9. It is intended, that via new section 10B, laws establishing a scheme for the screening of workers in connection with the NDIS can be specified as NDIS worker screening laws as they are made or amended by each State and Territory. A law will only be an NDIS worker screening law once it has been specified in a determination by the Minister under section 10B.

In order to make a determination under new section 10B, the Minister must have the agreement of the State or Territory which has passed the law being specified. The Minister is also limited in this determination, to only specifying laws that, to the Minister's satisfaction, establish a scheme for the screening of workers for purposes including the NDIS.

A legislative note at subsection 10B(1) provides that a legislative instrument made under new section 10B is not subject to disallowance by way of subsection 44(1) of the Legislation Act 2003. This recognises that it is undesirable for Parliament to disallow instruments that have been made for the purposes of a multi-jurisdictional body or scheme, as disallowance would affect jurisdictions other than the Commonwealth. If a determination under new section 10B is disallowed, the Commission would be stifled in its ability to perform this function, or be unable to perform it at all.

The power of the Minister to make a determination under new section 10B cannot be delegated.

The Explanatory Memo states the database
is intended to be a centralised repository of information about persons who have had decisions made about them, or who have applied to have decisions made about them, under NDIS worker screening law. It is intended to be current and up to date, reflecting an accurate picture of whether a person, in working or seeking to work with people with disability, does or does not pose a risk to such people. 
As a necessary precursor to these purposes, another purpose of the database is to share information for the purposes of the NDIS to ensure that the database is current and accurate. It is intended that information in the database may be shared with the following parties at varying levels of detail:
  • State and Territory worker screening units conducting worker screening checks; 
  • registered NDIS providers and their subcontractors; 
  • the National Disability Insurance Agency and its contractors; 
  • persons and bodies providing services under Chapter 2 of the Act; 
  • NDIS providers who are not registered, and their subcontractors; 
  • self-managed participants and plan nominees; 
  • the NDIS Quality and Safeguards Commission; and 
  • the Department of Social Services.
 Paragraph 181Y(3)(d) provides that additional purposes of the database may be determined in an instrument under subsection 181Y(8).
 Information that may be included on the database  includes
  •  paragraph 181Y(5)(a) provides that the database may contain information about a person who has applied for a worker screening check, and information relating to that application. This may include but is not limited to: personal information about the person, the date their application was made and the State or Territory in which their application was made. 
  •  paragraph 181Y(5)(b) provides that the database may contain information about a person who has applied for a worker screening check whose application is no longer being considered, and the reasons for this. This may include but is not limited to: personal information about the person, the date from which their application is no longer being considered, and information to the effect that the applicant has withdrawn the application or the State or Territory worker screening unit has closed the application. 
  •  paragraph 181Y(5)(c) provides that the database may contain information about a person who has been cleared to work with people with disability, and information relating to a decision to that effect (a clearance decision, however described). It is intended that this paragraph cover all decisions to the effect that a person has been cleared to work with people with disability, however this may be described, under an NDIS worker screening law at any point in time. One such way this may be described, is that the person does not pose a risk in working or seeking to work with people with disability. This may include but is not limited to personal information about the person. Information relating to the decision may include but is not limited to: who made the decision, the date it was made, the place it was made, the reasons for that decision, and the time period during which the decision remains in force. 
  •  paragraph 181Y(5)(d) provides that the database may contain information about any interim decision made under NDIS worker screening law whilst a person's application is still being considered. This may, for example, be a decision that a person is prevented from working with people with disability while their application is pending. It is anticipated that a new decision (including another interim decision) may replace the initial interim decision once the application is determined. 
  •  paragraph 181Y(5)(e) provides that the database may contain information about a person who is prevented from working with people with disability, and information relating to a decision to that effect (an exclusion decision, however described). It is intended that this paragraph cover all decisions to the effect that a person has not been cleared to work with people with disability, however this may be described, within NDIS worker screening law at any point in time. One such way this may be described, is that the person does pose a risk in working or seeking to work with people with disability. This may include but is not limited to personal information about the person. Information relating to the decision may include but is not limited to: who made the decision, the date it was made, the place it was made, the reasons for that decision and the time period during which the decision remains in force. 
  •  paragraph 181Y(5)(f) provides that the database may contain information about how long a clearance decision or an exclusion decision, however described, is in force. 
  •  paragraph 181Y(5)(g) provides that the database may contain information about a person who, although previously cleared to work with people with disability (via a decision described in paragraph 181Y(5)(c)), has now had that decision suspended. The database may also include information about a suspension decision. This may include but is not limited to: who decided to suspend the clearance, the date that decision was made, the place it was made, and the time period during which the suspension remains or remained in force. 
  •  paragraph 181Y(5)(h) provides that the database may contain information about a person who, although previously cleared to work with people with disability (via a decision described in paragraph 181Y(5)(c)), has now had that decision revoked. It also provides that the database may contain information about a person who, although previously prevented from working with people with disability (via a decision described in paragraph 181Y(5)(e)), has now had that decision revoked. The database may also include information about a revocation decision. This may include but is not limited to: who decided to revoke the clearance decision or exclusion decision, the date that decision was made, the place it was made, and the time period during which the revocation remains in force. 
  •  paragraph 181Y(5)(i) provides that the database may contain information about employers or potential employers who may hire persons who have made screening applications. The term 'employers' used in this paragraph is intended to include self-managed participants who may hire their own workers. This may include information about the person's potential, current and previous employers, including contact details, period of employment, a description of the role the person was employed in and the period of time they were in that role. 
  •  paragraph 181Y(5)(j) enables the Minister to determine additional information to be contained within the database by way of legislative instrument under subsection 181Y(8). An example of additional determined content of the database may be a new type of decision contemplated by NDIS worker screening law not already covered by subsection 181Y(5). Flexibility in this area will benefit the overall database as States and Territories are yet to implement their NDIS worker screening laws. Additional content to be determined is necessarily limited by the Commissioner's functions and the provisions relating to the collection, use and disclosure of information under the Act.
The database is expected to include information about pending, current and previous decisions made under State and or Territory NDIS worker screening law. 
Subsection 181Y(6) indicates that the range of information that may be contained on the database is intended to be broad and is not limited by the types of information and examples already discussed. The range of information that may be contained on the database is however limited to information necessary for the performance of the Commissioner's function in establishing and maintaining the database, and the purposes of the database as outlined in subsection 181Y(3). It will also be limited by the Commissioner's information collection, use and disclosure powers under the Act. 
Examples of personal information which may be contained in the database include information relating to the identity of persons who have made an application or had a decision about them made under an NDIS worker screening law. This may include: name, date of birth, age, place of birth, address, telephone number, email address and other contact details, employment details, education, Government issued identification numbers and expiry dates as well as a worker screening number allocated to that person. Examples of sensitive information which may be contained in the database include information relating to disability status, Aboriginal and Torres Strait Islander status and cultural and linguistic diversity status. This sensitive information is to be used for policy development, evaluation and research purposes. It is intended that decision information, as obtained from a State or Territory worker screening unit, will only relate to the outcome or result of the decision. The database will not contain information about a person's criminal history, including convictions and charges and any other information relied on to support a decision that is made under NDIS worker screening law. It will also not contain information about a person's sexual identity or preferences. 
This information is intended to promote the accuracy, integrity and effectiveness of the database by ensuring that the information about decisions made under NDIS worker screening law relate to the correct person. It will also assist employers in verifying the employment of a person who has made an application and considering a person's suitability for employment.
 In reference to human rights compatibility the Explanatory Memo states that the amendments promote the rights of persons with disability to be free from exploitation, violence and abuse, consistent with Australia's obligations by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.
The Bill supports a nationally consistent approach to worker screening, with the aim of minimising the risk of harm to people with disability from the people who work closely with them. A nationally consistent and recognised worker screening regime promotes the rights of people with disability by:
  • sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected; 
  • reducing the potential for providers to employ workers who pose an unacceptable risk of harm to people with disability; 
  • prohibiting those persons who have a history of harm against people with disability from having more than incidental contact with people with disability when working for a registered NDIS provider; and 
  • deterring individuals who pose an unacceptable risk of harm from seeking work in the sector.
 This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse. 
The objective of the Bill is to ensure that there is a national repository of decisions made under State and Territory worker screening laws on whether persons who work, or seek to work, with people with disability pose a risk to such people, and to enable this information to be accessible to all States and Territories, and to employers (including self-managed participants) engaging workers in the NDIS. 
It will ensure that there is visibility of workers' screening outcomes across all States and Territories, and that a worker who has been excluded by one State or Territory is excluded nationally. A national worker screening database eliminates the opportunity for people to make multiple attempts in different jurisdictions at gaining a worker screening clearance. 
The paramount objective of this Bill is to protect people with disability from experiencing harm arising as a result of unsafe supports or services provided under the NDIS. 
Consistent with this objective, worker screening has been introduced for roles with registered NDIS providers that have been identified as requiring particular mitigation of the risk of harm to people with disability. Worker screening obligations are not imposed in relation to other roles; however, it will remain open to employers, including self-managed participants, to require worker screening for any worker that they engage in the delivery of NDIS supports and services. This reflects a targeted, measured approach to the risk. 
Criminal history checks and other forms of pre-employment screening are conducted as a matter of routine for a range of occupations to allow employers to make recruitment decisions which support a safe and secure workplace for workers and people with disability. 
However, governments recognise that some individuals, by virtue of their history, have valuable lived experiences to share with people with disability accessing NDIS supports and services. It is recognised that people with lived experience who have committed an offence or misconduct in the past can make significant changes in their lives. 
The Commission will work with State and Territory governments to put in place a nationally consistent, risk-based decision-making framework for considering a person's criminal history and patterns of behaviour over time to guard against the unreasonable exclusion of people who have committed an offence or misconduct from working in the disability sector, where this is not relevant to their potential future risk to people with disability. 
Under the national policy for NDIS worker screening, States and Territories will provide certain review and appeal rights to individual workers who may be subject to an adverse decision. Individuals can seek a review of an adverse decision, consistent with the principles of natural justice and procedural fairness. Where there is an intention to make an adverse decision, States and Territories will disclose reasons for this (except where NDIS worker screening units are required under Commonwealth, State or Territory law to refuse to disclose the information), allow the individual a reasonable opportunity to be heard, and consider the individual's response before finalising the decision. The Bill supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk in the provision of certain services and supports. 
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances. 
The NDIS worker screening database is expected to hold information about the identity of persons who have made an application for an NDIS worker screening check, and any pending, current and previous decisions made by the State and or Territory NDIS worker screening unit in relation to that application. This is consistent with the objective to ensure that information about whether a person who works, or seeks to work, with people with disability poses a risk to such people, is current, accurate, and available to all States and Territories, and to employers engaging workers in the NDIS. 
The range of information that may be contained on the database is limited to information necessary for the performance of the Commissioner's functions and for the purposes of the database set out in the Bill. The database will not contain information about a person's criminal history, including convictions and charges and any other information relied on to support a decision that is made under NDIS worker screening law, or information about a person's sexual identity or preferences. 
The range of information that will be shared with persons or bodies will be proportionate and necessary for the objective of minimising the risk of harm to people with disability from the people that work with them. 
States and Territories will have full access to the database as required to effectively implement the national policy, including the ongoing monitoring of people who hold clearances, and the identification of fraudulent or duplicate applications, such as where a person has made multiple attempts to gain a worker screening clearance in a different jurisdiction or under a different name. 
By comparison, employers will have access to a limited subset of information on the database. This is expected to include information about a worker's identity, so that an employer can verify that the person who holds the clearance is the same person that they have engaged or intend to engage. Employers will also have access to information related to whether or not a person they have engaged is cleared to work in certain roles. Employers will not have access to the details of a worker's other employers, or sensitive information relating to a worker's disability status, Aboriginal and Torres Strait Islander status or cultural and linguistic diversity status.

01 October 2019

Marks

'Trademark Counterpublics' by Sonia Katyal and Vicki T. Huang comments
 In 2017, the Supreme Court in Matal v Tam held that the disparagement clause (s.2(a) of the Lanham (Trademark) Act 15 USC §1052(a)) was facially unconstitutional under the First Amendment. In striking down this clause, the Court removed the primary barrier to the registration of racist slurs as trademarks. The decision allowed the applicant, Simon Tam, to register the trademark THE SLANTS; however, the registration also empowered other persons to also register racist trademarks, as evidenced by the flurry of applications for such marks in the period following the decision. Controversially, the decision also neutered the protracted efforts by some Native Americans to de-register NFL-owned racist trademarks such as REDSKINS on disparagement grounds. In this paper, which blends both critical and empirical research, we offer a theory of counterpublic trademarks, focusing on trademarks, like the Slants, that develop in parallel to their official public spheres and (as Nancy Fraser has described) “where members of subordinated social groups invent and circulate counter discourses to formulate oppositional interpretations of their identities, interests, and needs.” 
We first set out to answer a question: do counterpublic trademarks exist? We find that the answer is yes, but in very small numbers. Using empirical data, we argue that self-appropriation in counterpublic trademarks is critically distinct from the appropriation of a slur by a non-affected group, both in terms of the intent behind registration as well as the potential “public” that are affected by such trademarks. To prove this hypothesis, we set out a methodology to measure the quantum of “racist” trademark applications over a 30-year period from 1988 to 2018. Our preliminary results show that out of close to 8 million trademark applications, the number of racist applications has remained consistently low (less than 1%) both before and after the Tam decision. However, what is significant is the racial identity of the applicants. Drawing on US Census data to identify race, the paper finds meaningful distinctions between which races actively self-appropriate slurs versus which races (typically Native American) suffer from racial “appropriation” of slurs by another group. This paper also finds interesting results as to which races (typically White and more recently Asian) are actively appropriating slurs against minority groups.

Forgery

In El Ali v R [2019] NSWCCA 207 the New South Wales Supreme Court of Criminal Appeal has considered an appeal by a man who apparently used Photoshop to alter an Australian Department of Defence export form to make it appear that he had permission to import firearm parts from Germany into Australia. Mr El Ali was unsuccessful in his appeal against conviction and sentence. The NSWCCA found that there was no duplicity in the prosecution's case as the offence of conspiracy differed from the substantive offence of possession. The NSWCCA also found that the NSW District Court had not erred in assessing the scope of the conspiracy, the subjective factors of the offender or in failing to find special circumstances.

30 September 2019

Access

Austral Information Access Commissioners and the ACT Ombudsman have released the findings of their first cross jurisdictional study of community attitudes to access to government information. 

Commissioners from NSW, Victoria, Queensland, Western Australia, the Commonwealth (ie the OAIC) and the ACT Ombudsman  sponsored the research as part of Australia’s Open Government National Action Plan 2018–2020.

 The Information Access Study 2019 measures citizens’ awareness of the right to access government information, and their experiences and outcomes in exercising that right. The sponsors argue that the research provides a broad insight into citizens’ views and experiences of the right to access information.

The reported Key Findings (the actual report doesn't seem to be publicly available) include:
  •  the importance of the right to access information is consistently recognised by respondents across state and national jurisdictions (85 – 93%); 
  • the majority of respondents across the jurisdictions were aware that they had the right to access information from government departments/agencies (77- 85%); 
  • around 4 in 10 respondents had contacted at least one government agency in the past three years to obtain government information; and 
  • in general, citizens were able to obtain information successfully (60 – 91%). 
The sponsors state
By enhancing understanding of community attitudes and experiences, the study’s results will help inform activities to promote and support the right to access government information. The results will also enable governments to examine the performance of their respective access to information laws from a citizen perspective.  
The right to access government information is independently overseen by the Commonwealth and State and Territory Information Commissioners and Ombudsmen. ...  
The right to access information is a fundamental tenet of an open and democratic government. The study reflects the importance the community uniformly places on their right to access information. The valuable insights provided in this inaugural cross jurisdictional survey involving four Australian states, the ACT and the Commonwealth of Australia will assist in building a better understanding of information access frameworks. It reinforces commitments under the Open Government National Action Plans to better measure and understand the value citizens place on the right to access government information, and their experiences and outcomes. These results will assist Information Access Commissioners and ACT Ombudsman to encourage governments to promote access to government-held information to build public trust and continue to advance an effective and contemporary model of open government that is participatory, fair, accountable and transparent.
Major irony: the report accompanying the media release comprises a single page featuring four bar charts.

It is so simplistic as to be verging on meaningless and would, if submitted in a 2nd year law assignment, receive a 'Fail' grade.

22 September 2019

Weed in the ACT

More potheads in the nation's capital or just more confused policing?

The Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 (ACT) - likely to be passed in an amended form - seeks to amend the Drugs of Dependence Act 1989 (ACT) in relation to personal possession of cannabis, with consequential amendments to the ACT Criminal Code 2002.

The 2018 Explanatory Statement indicates
The Bill will amend criminal laws to allow for the personal use and carry of cannabis up to a limit of 50g. The Bill will also allow individuals to cultivate up to four cannabis plants (excluding artificial cultivation). This change will bring cannabis laws more in line with modern community standards and reflect global trends. The Bill will reduce the burden on our criminal justice system and bring us a step closer to a cannabis market. 
The Bill will retain penalties for possession above 50g at current levels, cultivation of more than four plants will remain illegal, artificial cultivation will remain illegal, sale will remain illegal and sale and supply to minors will especially remain illegal. 
Background 
In 1971 Australia signed the Single Convention on Narcotic Drugs of 1961 which extended importation controls over drugs like cannabis. Since then Australia has been a party to further international treaties on drugs and Section 300 of the Criminal Code (Cth) 1995 creates offences relating to drug trafficking and gives effect to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. States however retain power of laws regarding possession. 
In 1992, the ACT decriminalized cannabis possession under 25g through the Simple Cannabis Offence Notice (SCON) scheme. This scheme, according to the 2013 ACT Health Department report Evaluation of the Australian Capital Territory Drug Diversion Programs, aimed to
1. To minimise harms associated with unnecessary involvement in the criminal justice system (CJS) 
2. To strength partnerships (between law enforcement, courts, health and other stakeholders) 
3. To educate police and courts regarding what are the appropriate responses to Alcohol and Other Drugs (AOD) issues 
4. To fulfil the community expectation of community protection and the punishment of offenders 
5. To educate young people and families 
6. To deter encounters with the CJS 
7. To reduce AOD use 
8. To reduce cost to the CJS and reduce social cost of AOD 
9. To reduce AOD-related crime
The limit was subsequently increased to 50g to reflect the fact that almost universally individuals purchased cannabis at quantities above the 25g limit and therefore were ineligible to be diverted from the CJS.
Recent international developments have seen 9 US states and the District of Colombia legalise cannabis not just for personal use but legalising the industry. Canada has also legalized the sale and possession of cannabis and is in the process of setting up their market. New Zealand has also pledged a referendum on the issue before 2020. 
Community attitudes on cannabis are shifting and unbiased research has shown it is not a particularly harmful substance. According to the Australian Institute for Health and Welfare in their report, Impact of Alcohol and Illicit Drug Use on the Burden of Disease and Injury in Australia, alcohol represents 4.6% of the total burden of diseases and injuries in Australia, tobacco 9% and cannabis only 0.1%. 
Despite causing 46 times less harm than alcohol, cannabis remains illegal. And despite the decades long campaign waged against drug use, cannabis remains the most popular drug in Australia according to the Australian Criminal Intelligence Commission in their report Organised Crime in Australia 2017. The National Drug Household Strategy Household Survey 2016 found that 35% of Australians have used cannabis and 10% have used it in the last year. But the substantial profits of cannabis go to organised crime and away from health and education. 
The Bill will ease the burden on law enforcement who spend over $1.1 billion every year on drug law enforcement in Australia according to the UNSW based Drug Policy Modelling Program in their 2013 report Government Drug Policy Expenditure in Australia 2009/10. And according to the Australian Criminal Intelligence Commission’s 2016-17 Illicit Drug Data Report over 50% of drug related arrests in Australia (154 650 total) were cannabis related and 91% of those were consumer arrests i.e. small amounts. 
Cannabis is sometimes touted as a ‘gateway drug’ and that it will encourage people to try harder substances. A comprehensive review of scientific studies on this topic by the American National Academies of Sciences, Engineering, and Medicine titled The Current Health Effects of Cannabis and Cannabinoids states that ‘Additional studies are needed to determine whether cannabis use is an independent risk factor for, or causally contributes to, the initiation or use of and dependence on other drugs of abuse later in life’. 
Interaction with Federal Law 
This Bill does not affect the prosecution or enforcement of Commonwealth and Territory laws relating to the sale or trafficking of cannabis, including laws prohibiting the possession of amounts of cannabis over 50g and the cultivation of 5 or more cannabis plants.
The Statement does not engage with the crucial question of the Commonwealth's ability to override ACT legislation (a fact, evident in relation to the Territory's badly-managed same-sex marriage Act) and willingness to do so (likely, not leasr as a useful diversion).

The report on the Bill by the Standing Committee on Health, Ageing and Community Services features the following recommendations, of which R 11 is of particular interest -
 1 The Committee recommends that, subject to the following comments and amendments, the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be supported. 
2  The Committee recommends that consequential amendment [1.2] (Section 168(2) of the Criminal Code 2002), in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, be amended to increase the number of plants an individual can cultivate to a maximum of four, and the number of plants a household can cultivate to a maximum of six. 
3  The Committee recommends that an amendment be included in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, to allow for soil cultivation in a greenhouse and/or with artificial light. 
4   The Committee recommends that Section 171AA(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill be amended to define plant weight, wet weight, dry weight and any other format in which cannabis can be possessed. 
5   The Committee recommends that the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 should also clarify that, while growing a plant, it is counted as a plant and its weight is not relevant for the purposes of this legislation. 
6  The Committee recommends that if artificial cultivation is not allowed, the dry weight (or equivalent) allowable be expanded to 100 grams as in South Australia. 
7  The Committee recommends that Section 171AB(1) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis in public places. 
8   The Committee recommends that Section 171AB(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis near a child. 
9  The Committee recommends that the ACT Government collaborate with ACT Policing to adopt a cannabis drug driving test that determines impairment. 
10  The Committee recommends that Section 171AA of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include express authorisation for the cultivation and use of cannabis by individuals for personal use. 
11  The Committee recommends that the ACT Government intervene in any prosecution by the Commonwealth of ACT residents who cultivate or possess cannabis in accordance with the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 to defend the intent of the Bill. 
12  The Committee recommends that, should cannabis for personal use be legalised in the ACT, the ACT Government considers appropriate measures for overturning convictions relating to possession and cultivation of cannabis for personal use. 
13  The Committee recommends that, regardless of whether or not the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 is passed, the ACT Government ensures that there are sufficient health resources available to treat cannabis dependence. 
14  The Committee recommends that the ACT Government develop a public health campaign about cannabis to be delivered on an on-going basis. 
15  The Committee recommends that strong public information about the provisions of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 proceed or coincide with the implementation of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018
16   The Committee recommends Section 162 of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include a provision that allows group cultivation where: • The number of people in the group is between two and 10; • The cannabis must be cultivated on the premises of one of the members; • Every plant must be ‘owned’ by an individual ACT resident and the name and address of this individual must be made available to police if requested; • No one in the group can own more than the legal limit of plants for an individual; • Cannabis product in the group is owned by the individual owner of the plant that produced it; and • Cannabis product cannot be traded or exchanged with other individuals.
The Government's response last week states
The ACT Government does not condone or encourage the recreational use of cannabis or other drugs. This is a message we will continue to share with the Canberra community both in the context of this legislation, and more broadly. 
We must acknowledge, though, that the outright prohibition model of drug policy is not working, as cannabis use is prevalent both across Australia and within the Canberra community. There is good evidence from drug law reform around the world that a harm minimisation approach delivers better outcomes both for individuals and communities. 
This is why the ACT Government has indicated we intend to take a harm minimisation approach by supporting the Drugs of Dependence (Personal Cannabis) Amendment Bill 2018 with a range of amendments to add further safeguards and protections for the community. The Government’s view is that the Bill is a logical next step of the Simple Cannabis Offence Notice (SCON) scheme rather than a revolutionary change. Its effect will be to remove penalties for the use and possession of small amounts of cannabis by individuals over 18 years, in line with the ACT’s harm minimisation objectives. The SCON scheme is intended to continue for individuals under 18 years old. 
In this context, the Government offers the following response to the Committee’s report and recommendations. This re-states and expands upon a number of important points made in our original submission to the inquiry, as well as responding to the Committee’s individual recommendations. 
ACT drug policy 
The ACT Government’s policy regarding the harms caused by alcohol, tobacco and other drugs is clearly articulated in the ACT Drug Strategy Action Plan 2018–21 (the ACT Action Plan). The Action Plan, which aligns with the National Drugs Strategy, outlines a commitment to evidence-based and practice-informed responses to drug use that minimise harm in our community. 
The Government has been clear that we do not condone nor encourage the recreational use of cannabis, which we know presents health risks. However, outright prohibition clearly does not work as an effective strategy for dealing with drug use in our community. Despite currently being illegal, 8.4 per cent of Canberrans have reported using cannabis in the previous 12 months. 
The ACT has a long history of taking progressive steps and trying new ideas to minimise the harm of drugs in our community. This includes being one of the first jurisdictions in Australia to decriminalise the personal possession of small amounts of cannabis. The Government intends to continue taking well considered steps to improve our drug laws. 
It is important to note that, even after the passage of this Bill, possessing and growing cannabis will carry a degree of risk arising from interactions between Territory and Commonwealth law. We believe the ACT is able and entitled to make our own laws on this matter. However, we would be the first jurisdiction in Australia to legislate in this way, and the interaction with existing Commonwealth law remains untested. The amendments proposed by the Government aim to reduce the risk to individual Canberrans but cannot remove this entirely. 
There is also uncertainty as to how a Commonwealth Government may react to the ACT passing this Bill. We cannot guarantee the Commonwealth Government would not intervene to prevent reforms – as has occurred in the past when the ACT has attempted nation-leading progressive reform on issues like marriage equality. 
There are a range of health implications that must be considered. It is clear that some people experience adverse mental health effects from using cannabis, and that its use can become problematic over time. These health risks already exist for anyone who uses cannabis under current legislative settings, but it will be important to continue raising community awareness of these risks in parallel with the legislative process. 
The Government believes implementation of this Bill may assist in addressing some of these health risks. For example, the stigma and risk of punishment associated with illegal drug use may mean that people do not seek medical or other types of help when they need it. Legalising the personal use of small amounts of cannabis will create opportunities to better reach people who are already using the drug and connect them with the services or supports they need. 
Proposed Government amendments 
In light of these and other issues, the Government will move a number of amendments to the Private Members Bill.
1. Personal plant limits 
Whereas the Bill proposes to allow an individual to possess four cannabis plants, the Government will move amendments to limit this to a maximum of two plants. This is consistent with the settings of the current SCON scheme and is considered a reasonable limit for personal use. 
2. Household plant limits 
The Bill does not currently include a limit on the number of plants that would be allowable in any single dwelling. This gives rise to potential situations where share houses (or properties that otherwise have multiple residents) could effectively be used as larger scale ‘grow houses’. The Government will move amendments introducing a household limit of four cannabis plants, regardless of how many individuals are resident. 
3. Restrictions on where cannabis can be grown 
The Government will move amendments to restrict where personal cannabis plants can be grown. These amendments will address two separate issues. First, cannabis plants will only be able to be legally cultivated on parts of residential property not generally accessible by the public. This would exclude cannabis being grown in areas such as verges or community gardens. This restriction is intended to minimise access to cannabis plants by people other than the legal owner or resident. This would also have the effect of preventing cannabis being legally cultivated on commercial or community property. Second, cannabis plants would only be able to be legally cultivated by a person usually residing at that property. This is intended to establish a nexus of ownership for cannabis plants. 
4. Storage 
Government amendments will require cannabis to be kept out of reach of children when not in an individual’s possession in order to restrict access by children and young people or other vulnerable individuals. The Government amendments will require a person in possession of cannabis to take reasonable steps to store the cannabis out of reach of children. Examples will be provided in the supplementary explanatory statement for the Government amendments, reflecting current approaches to storing dangerous chemicals or prescription drugs. 
5. Distinction between fresh and dried cannabis 
The Bill as drafted would legalise possession of 50 grams of cannabis, which is taken to refer to dry cannabis in line with the settings of the SCON scheme. This creates a practical issue due to freshly harvested cannabis plant material weighing more before it is dried. To reduce ambiguity in the Bill, the Government intends to move amendments that will distinguish between ‘dry’ cannabis (ie. cannabis ready to be used) and ‘wet’ cannabis (ie. harvest plant material that has not yet been dried). Dried cannabis would still be subject to a 50 gram limit as included in the Bill. The Government will move to include a separate limit of 150 grams for ‘wet’ cannabis that would apply to cannabis that has been harvested but not yet dried. This limit has been selected primarily on the basis that it would limit individuals from potentially possessing amounts of dry and wet cannabis that would approach the threshold for a trafficable quantity. 
6. Smoking near children 
The Government supports the intention of the Bill’s restrictions on smoking near children, but considers there would be practical challenges to implementing this through the proposed 20 metre distance rule. For example, an individual legally smoking cannabis in their own open backyard could potentially be within 20 metres of a child in a neighbouring property without intending to, or even being aware this is the case. To make this element more practical, the Government will move amendments to prohibit the smoking of cannabis near children through an offence involving a mental element, rather than a distance-based rule. That is, an individual will be deemed to have committed an offence if they knowingly use cannabis in a way that exposes a person less than 18 years old to this. The Government amendments include a defence for situations in which the individual can prove they took all reasonable steps to ensure the child was not exposed to smoke or vapour. 
7. Interaction with Commonwealth Government legislation 
The Government will move amendments that are designed to resolve potential incompatibilities with Commonwealth laws. The approach the Government considers most closely achieves this objective is to retain offences in the Drugs of Dependence Act for possession and cultivation of cannabis over prescribed limits but include an exception such that those offences do not apply to anyone over 18 years of age. This would mean the ACT still retains a relevant offence in legislation but with the practical outcome that possession and cultivation of small amounts of cannabis would be effectively legal for individuals. While the Government notes that Recommendation 10 made by the Standing Committee seeks to address these issues, we consider these proposed amendments to be a preferable option to achieve compatibility.
Other matters 
The Government acknowledges that changes to the legal framework for personal use of cannabis of this kind have not been tried in Australia before. Notwithstanding the above amendments, there remains a degree of uncertainty and risk associated with the proposed new approach. We will seek to collect relevant data to effectively evaluate the outcomes of these reforms, with an evaluation being conducted no more than two years after the date of the Bill’s implementation. This will help inform decisions about any necessary further reform or amendments to the legislative framework created through this Bill. The Government’s response to the Committee’s individual recommendations is outlined below. In summary, the Government agrees to four recommendations (#1, #13, #14 and #15), notes eight recommendations (#4, #5, #7, #8, #9, #10, #11, #12) and does not agree to four recommendations (#2, #3, #6, #16).