25 September 2017

Normativity

'The Contested Value of Normative Legal Scholarship' by Robin L. West in (2016) 66 Journal of Legal Education 6-17 comments
Legal scholarship, under attack from critics both inside and outside the legal academy, is on the horns of a “normativity” dilemma. To some critics, legal scholarship isn’t scholarship, because it’s too normative; while to others, it may be scholarship, but it’s not legal because it’s not normative enough.
In this article, I address one side of this issue, what I call the anti-normativity complaint: to wit, that legal scholarship is somehow not “true scholarship” because so much of it is overtly normative. Legal scholarship, according to this strand of criticism, isn’t true scholarship because of the dominance of “ought” statements: if it aims to make the law, or the world law governs, better, and aims to do so through using legal materials and a legal methodology, it isn’t scholarship. So, we shouldn’t do it.
After analyzing various contours of the anti-normativity critique, I make the case that legal scholarship is and should be about what justice requires. It therefore must be normative. And to the degree that justice is itself a product of our passion, it must also, therefore, be impassioned. This form of legal scholarship has great social value. It quite often influences not only our law, but also our political environment and the world of ideas in the university. Further, it’s not done anywhere except in law schools. If we forgo this work, our worlds, not only the legal world, but our social and cultural and political worlds, will be the worse for it.

Vetting

From the Australian Commission for Law Enforcement Integrity report on 'Operation Marlow' (A joint investigation into the conduct of an Australian Federal Police Protective Service Officer concerning Information Security)
On 15 September 2015, AFP Professional Standards (PRS) notified ACLEI of a significant corruption issue, whereby the AFP had information suggesting that a member of the public had shown another person an image on a mobile telephone that was a screenshot of a confidential report from the AFP’s database system, PROMIS. Access to PROMIS is limited to some staff members of the AFP and is subject to stringent security requirements. 
PRS had conducted an audit of access to the relevant PROMIS record and found that it had been accessed by Officer A, a Protective Service Officer. Officer A had no known operational reason for accessing the record.
On 16 September 2015, the Integrity Commissioner decided that ACLEI should investigate the corruption issue jointly with the AFP.
Jurisdiction
The information raised a corruption issue for the purposes of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act). The conduct alleged would be likely to fall within the class of being an abuse of office or, if not, ‘conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind’.
An investigation was conducted jointly with the AFP, as provided for by section 26(2) of the LEIC Act.
ACLEI’s jurisdiction to investigate and make findings was not affected by the officer’s subsequent arrest and suspension from duty on 17 September 2015 or by the AFP’s termination of the officer’s employment in late January 2016 due to the definition of “corruption issue” contained with section 7(1) of the LEIC Act.
What the investigation showed
The joint investigation took into account information obtained from the AFP, from the execution of search warrants at multiple premises, from examination of telephone records, and from physical surveillance of Officer A.
The investigation also included interviews under caution, pursuant to Part IC of the Crimes Act 1914 (Cth), in which Officer A, who acknowledged: (a) accessing information on PROMIS and using a mobile telephone to take photographs of the computer screen, despite knowing PROMIS was only to be used for official purposes, and (b) sending these images to an individual who Officer A knew to be involved with criminal activity.
During search warrants executed at the home of Officer A, ACLEI and the AFP located a number of items of AFP equipment which Officer A later admitted to have stolen, as well as a quantity of illicit drugs.
Officer A admitted to being a regular user of illicit drugs, timing drug use to coincide with rostered days off in order to avoid detection through the AFP mandatory drug testing regime. He also admitted to associating regularly with people involved in criminal activity.  
These issues in Officer A’s private life had gradually intruded into his official functions, to the point where he was using access granted through his official role to benefit those with whom he had personal relationships.
Officer A subsequently pleaded guilty to a number of corruption related offences—namely, abuse of public office (Criminal Code 1995 (Cth), s 142.2(1)), recording and disclosing prescribed information (Australian Federal Police Act 1979, s 60A(2)(a) and (b)), theft of Commonwealth property (Criminal Code 1995 (Cth), s 131.1)—and a range of drug offences.
He was sentenced in May 2016 to a total effective penalty of 20 months’ imprisonment, to be released after serving 12 months. Because the sentences to be served amount to more than 12 months, Officer A may also be subject to an application for a superannuation order under the Australian Federal Police Act 1979 (Cth) and steps towards such an order have commenced.
Part 10 actions
Part 10 of the LEIC Act provides for what the Integrity Commissioner may do with evidence and information obtained during an investigation.
Section 142 of the LEIC Act provides that the Integrity Commissioner must assemble admissible evidence relating to the contravention of a law and give it to a prosecuting authority or a designated police force. The AFP assembled the brief of evidence and provided it to the Commonwealth Director of Public Prosecutions for assessment and prosecution. The information gained through the investigation also provided the basis for the AFP’s decision to terminate Officer A’s employment.
Section 146 also requires the Integrity Commissioner to bring to an agency head’s notice evidence of a breach of duty or misconduct by a staff member. This requirement arises when the Integrity Commissioner is satisfied that the evidence may justify terminating the staff member’s employment or initiating disciplinary proceedings against the staff member and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so.
In this instance, because ACLEI’s investigation was conducted jointly with the AFP, and the AFP had access to all the information obtained, it was not necessary for the Integrity Commissioner to make a decision about disclosing information under Part 10 of the LEIC Act.  
Findings
The LEIC Act requires the Integrity Commissioner to report any findings relating to the corruption issues investigated.
Before I reached my conclusion, I provided Officer A with an opportunity to be heard, as required by section 51(4) of the LEIC Act. In the officer’s response, Officer A took responsibility for his actions, and did not seek to excuse his conduct.
Having regard to the evidence gathered, including his own admissions before the court, I find that Officer A engaged in corrupt conduct.
Observations
Officer A took part in a number of overseas deployments in which the AFP participated. Examination of his personnel records indicated he had been removed from one of the several overseas deployments he had undertaken due to alcohol abuse. As this matter was dealt with overseas, and because it did not reach a threshold for gravity, it was not known to AFP PRS before the current investigation was well underway.
While not every person with a substance abuse problem will go on to act unlawfully, such information can provide useful warning signs. Access to this information at an earlier stage may have enabled PRS to maintain a closer watch on Officer A’s welfare and to ensure that he continued to satisfy the requirements for his position and the security clearance it required.
The AFP is considering processes that would enable PRS to access information about such issues so that it can inform both the AFP’s management of personal factors affecting staff members, and the investigation of any later issues.
The AFP has a robust and mature mandatory drug testing regime, although potential vulnerabilities exist, particularly where staff members work on rostered shifts and have a number of concurrent days rostered off. Significant reform has occurred to enable drug testing to occur in a manner that is risk-based and intelligence-led. Cases like this one—whether from the AFP or other law enforcement agencies—will continue to inform drug testing policy in Commonwealth agencies.
An unreleased report on a separate matter in 2016 referred to
the conduct of an ACC staff member who had a non-operational role. In the course of normal duties, this staff member had incidental access to sensitive information.
The investigation established that the staff member—who was on temporary transfer from another Commonwealth Government agency—had an undeclared association with a suspected drug dealer. While under surveillance, the staff member copied a document relating to that person and took the copy from ACC premises.
No indication was found that the information had been communicated to the suspected drug dealer or that the staff member had sought employment with the ACC for an improper purpose.
During the investigation, the Integrity Commissioner disseminated relevant evidence to the ACC and the staff member’s home agency. ACLEI has also provided a brief of evidence to the Commonwealth Director of Public Prosecutions.
Having regard to the prospect of court proceedings and disciplinary actions, the Integrity Commissioner decided to reserve indefinitely any findings.
The ACC has in place pre-employment screening processes that are generally effective. Despite these measures, the investigation shows the risk which arises when a staff member exposes himself or herself to the potential for compromise, and fails to disclose it.
The ACC has since strengthened the guidance it gives to new staff about their obligations to report potential conflicts of interest and has scheduled integrity refresher training for all staff. Accordingly, the Integrity Commissioner made no recommendations.
ACLEI's 2017 report regarding 'Operation Karoola' states
On 12 March 2014, under section 19 of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act), the then Secretary of the Department of Agriculture—now known as the Department of Agriculture and Water Resources, and referred to in this report as the Agriculture Department—notified the then Integrity Commissioner, Mr Philip Moss, of a corruption issue relating to a staff member, Officer A.
Specifically, the Department had received information suggesting that Officer A had produced forged material to support a quarantine-related application for approval that a food importer had made to the Department.
On 17 April 2014, Mr Moss decided to investigate the issue jointly with the Agriculture Department. As the collection of evidence progressed towards the likelihood of a criminal prosecution, ACLEI’s investigation was also conducted jointly with the Australian Federal Police (AFP).
Jurisdiction
Section 6(4) of the LEIC Act—as part of the definition of ‘engages in corrupt conduct’—expressly includes conduct engaged in before the commencement of the Act. By implication, this provision has effect following an extension to ACLEI’s jurisdiction, as occurred in the case with the Agriculture Department in July 2013.
The duties of Officer A are in the class of people who are ‘staff members’ of the Agriculture Department to whom the LEIC Act applies—namely, those persons undertaking assessments, clearance or control of vessels or cargo imported into Australia.
The description of the conduct alleged to have been engaged in by Officer A satisfies the definition in section 6(1)(c) of the LEIC Act—namely, “conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind”.
Investigation process
The joint investigation took into account: (a) information obtained from the Agriculture Department (b) statements by a number of people from businesses with which Officer A had dealings (c) records relating to a company controlled by Officer A (d) bank records, and (e) physical documents and computer records obtained following the execution of search warrants obtained under the Crimes Act 1914 at the residences of Officer A and an extended family member.
In addition, a private hearing was conducted with Officer A, pursuant to section 82 of the LEIC Act. This hearing was undertaken following the conclusion of court proceedings for criminal offences against Officer A, to further inform my investigation and to uncover and assess any potential vulnerabilities or compromise to Australia’s biosecurity arrangements.
What the investigation showed
Private quarantine consultancy
Officer A was a long-standing employee of the Agriculture Department whose most recent duties included conducting regulatory inspections at the premises of food importers. In this role, Officer A necessarily became familiar with the Department’s processes and requirements.
From about 2007, Officer A was considering the establishment of a private consultancy to provide services to businesses that had dealings with the Agriculture Department in relation to quarantine and biosecurity regulation. 13. Officer A subsequently created and registered Company B, operating from Officer A’s home. Officer A then recruited clients during interactions with food importers while performing official duties for the Agriculture Department.
Officer A did not seek permission from the Agriculture Department for secondary employment, or otherwise declare to it a financial interest in Company B, despite the general duty to avoid conflicts of interest which applies to all public officials.
Company B traded for almost five years, and in that time generated almost $190,000 in gross revenue.
When trading, Company B assisted importing businesses to complete the application process to be registered as a ‘Quarantine Approved Premises’ (QAP) with the Agriculture Department. At the time this approval was a legislated requirement if a business was to deal with certain imported goods, with the criteria for approval dependant on the nature of the goods.
QAPs have since been replaced by ‘Approved Arrangements’ under the Biosecurity Act 2015. The following discussion relates to the requirements for QAPs that were in place at the time of Officer A’s actions.
QAP Assessments
As part of the approval process, it was a requirement for applicants to designate ‘QAP Accredited Persons’ who were to be responsible for dealing with, or supervised others dealing with, material subject to quarantine. Under the biosecurity framework, an ‘accredited person’ had an important role in ensuring that imported goods are safe for the Australian community. Accordingly, the accreditation of a person who had not personally satisfied the accreditation requirements could present a serious risk to the effectiveness of Australia’s biosecurity regime.
As part of the application process, candidates seeking to become an accredited person were required to enrol in, and complete, mandatory online training facilitated by the Agriculture Department via a contractor.
While operating Company B, Officer A created 72 accounts for clients to take part in the online assessment to become an accredited person. These accounts were all created using Company B’s email address. Officer A also arranged payment through Company B’s bank account to the Agriculture Department’s contractor for the fees payable by those clients.
ACLEI’s investigation considered the activities of two of those clients in detail, and found that:
(a) Mr C is the director of an import company which, following an approach from Officer A, purchased about $3000 worth of services from Company B—including payment for the assessment to become an accredited person to operate a QAP. ACLEI’s analysis of records indicated that Officer A completed the assessment on behalf of Mr C. Mr C told investigators that he never undertook online training or completed the online assessment. He said that Officer A had explained quarantine requirements to him in person, and had arranged for a family member of Officer A to install signage and paint boundaries.
(b) Mr D is branch manager of another food import company. Following an approach by Officer A, he paid an amount of money to Officer A for a number of staff to become accredited persons to work in the business operating a QAP. Officer A provided Mr D’s company with the relevant certificates for its staff members, without the requisite training or assessment being completed.
Officer A subsequently admitted to personally undertaking the online assessments in place of clients in two instances. 
Fumigation compliance
ACLEI’s investigation of Officer A uncovered other instances of possible corrupt conduct. 24. In early 2013, another business, Company E, applied to the Agriculture Department for approval to become a QAP that would handle agricultural products. There were special requirements for such an application, including: (a) it must set out the process for dealing with biosecurity waste, including waste that is not subject to a separate quarantine requirement, and (b) it must include the detail of a standing arrangement with a licensed person who could fumigate the premises against pests at short notice.
In September 2013, an Agriculture Department auditor sent an e-mail that informed Company E that these and other requirements had to be met before the QAP application could proceed.
In October 2013, a staff member of Company E forwarded this e-mail to Officer A, indicating that the company did not have the relevant biosecurity waste disposal procedure or an arrangement with a fumigator. Shortly afterwards, Officer A replied to Company E with “I will do asap”.
Following this exchange, Officer A sent Company E electronic copies of a completed fumigation agreement, together with an operating procedure to deal with biosecurity waste. However, Officer A asked that the e-mail address being used not be forwarded to the Department.
On its face, the fumigation agreement gave the appearance that Mr F—the manager of a well-known company that provided fumigation services to business premises—had agreed to provide fumigation services to Company E.
Company E then submitted the documents to the Agriculture Department as part of its application for QAP status.
Officer A also submitted an agriculture products QAP application to the Department on behalf of another company, Company G. That application also included a document appearing to be a fumigation service agreement signed by Mr F on behalf of the company of which he was a manager.
In May 2014, as part of ACLEI’s investigation, investigators from the Agriculture Department contacted Mr F, who indicated that the documents purporting to be agreements signed by him with Company E and Company G were not genuine, and that copies did not exist in his company’s files.
Part 10 actions
Part 10 of the LEIC Act provides for what the Integrity Commissioner may or must do with evidence and information obtained during an investigation—such as providing it to a prosecuting authority, and referring it to an agency head for disciplinary action.
Disciplinary actions
Section 146 of the LEIC Act requires the Integrity Commissioner to bring to an agency head’s notice evidence of a breach of duty or misconduct by a staff member. This requirement arises when the Integrity Commissioner is satisfied that the evidence may justify terminating the staff member’s employment or initiating disciplinary proceedings against the staff member and that the evidence is, in all the circumstances, of sufficient force to justify his or her doing so.
During the investigation, ACLEI disseminated relevant evidence to the Secretary of the Agriculture Department, and this information informed the Department’s decision to suspend Officer A’s employment in May 2014. Officer A resigned in January 2015.
Court proceedings
Section 142 of the LEIC Act provides that the Integrity Commissioner must assemble admissible evidence relating to the contravention of a law and give it to a prosecuting authority or a designated police force. In this case, Officer A was charged in March 2015 with two counts of abuse of public office under section 142.2(1) of the Criminal Code Act 1995 (Cth) and one count of using a forged document with the intention that it be accepted as genuine by a Commonwealth public official under section 145.1(1) of the Criminal Code.
Officer A pleaded guilty and was sentenced in April 2016 to a total effective sentence of 12 months’ imprisonment to be released forthwith, conditional upon complying with a good behaviour order for two years. The court recorded convictions for all offences against Officer A.  
Findings
The LEIC Act requires the Integrity Commissioner to report any findings relating to the corruption issues investigated.
Before I reached my conclusion, I provided Officer A with an opportunity to be heard, as required by section 51(4) of the LEIC Act, and I have taken into account written comments provided. In particular, Officer A asserts that: (a) the almost $190,000 in gross revenue included expenses incurred in the provision of genuine assistance to importers, and (b) clients of Company B carried out the required online training and assessment with no input from Officer A on all but two instances.
Having considered these issues, I am satisfied that Officer A used inside knowledge of the Agriculture Department’s processes to circumvent the Department’s oversight of food importation businesses and, consequently, Australia’s biosecurity arrangements were left vulnerable to compromise.
Accordingly, having regard to the convictions recorded against Officer A and the further information available to me as part of ACLEI’s investigation, I find that Officer A engaged in corrupt conduct.
I make no inference that the businesses that obtained services from Officer A did so with any knowledge of the impropriety of those actions. Indeed, it is entirely possible that Officer A’s official status may have left each of them with the impression that they had complied with the law.
Observations
This investigation demonstrates the commercial value of official information and insider knowledge, and illustrates the prospect that corrupt officers can exploit their status as public officials to obtain an unfair financial benefit. In some circumstances—although it is not established in this case—this situation could knowingly give rise to collusive behavior that unfairly advantages one business over another.
Perhaps more importantly in this case, circumventing QAP training processes and falsifying official documents left a number of businesses and individuals without the knowledge or skill to treat potentially serious biosecurity risks. In different circumstances, the impact could have been devastating for Australian agriculture.

15 September 2017

Australian Government Hot Dog Authority

The Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017 (Cth) deals with introducing "new offences and a new injunction power to prohibit and prevent conduct amounting to false representation of a Commonwealth body". Changes to the Criminal Code through new offences and an injunction power will prohibit a person from falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth body.

The Explanatory Memo states
The Bill strengthens public confidence in all communications emanating from Commonwealth bodies and will put the criminalisation of such conduct beyond doubt, ensuring that those who create false representations in this way are captured by the law. It will also provide aggrieved parties with an opportunity to prevent such conduct through a court-issued injunction.
It is essential that the public can trust in the legitimacy and accuracy of statements made by Commonwealth bodies. The amendments are critical to ensure the public has confidence in the legitimacy of communications emanating from Commonwealth bodies, thereby safeguarding the proper functioning of Government.
The Bill amends the Criminal Code Act 1995 (the Criminal Code). In summary, the Bill:
  • criminalises conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, a Commonwealth entity or service, and 
  • links to the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) to provide a new injunction power for authorised persons to apply to a relevant Court for an injunction to restrain the same conduct.
The Bill introduces a primary offence where the person is reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. These amendments also create a new aggravated offence where a person engages in such conduct with the intent to obtain a gain, cause a loss, or influence the exercise of a public duty. 7. The Bill also introduces a new injunction power to allow authorised persons to seek injunctive relief to prevent conduct amounting to a false representation of a Commonwealth body. ...
The new offences and injunction power in proposed Division 150 of the Criminal Code engage the right to freedom of expression under Article 19(2) of the ICCPR.
The right to freedom of expression, as contained in Article 19(2), includes the right to receive and impart information and ideas of all kinds in writing or in print and using any media. Article 19(3) explicitly states that this right carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions provided that the restrictions are provided by law and are for the protection of (among other things) public order or national security.
The provisions in the Bill engage the right to freedom of expression as they prohibit false representations that a person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body. The Bill will prevent any person from imparting information and ideas that amount to such a false representation.
The provisions may amount to restrictions on freedom of expression in limited circumstances. The restrictions are objective, legitimate and proportionate because they:
  • are provided for by law 
  • serve a genuine public interest to promote public confidence in all communications emanating from Commonwealth bodies, and 
  • support the right to protection of public order or national security.
These restrictions on a person's freedom of expression are justified. The offences and injunction power are provided for by law in new Division 150 of the Criminal Code, and impose penalties which mirror offences that criminalise the impersonation of Commonwealth public officials.
The offences and injunction power are necessary for protecting public order. Public order encompasses the rules which ensure the peaceful and effective functioning of society, or the set of fundamental principles on which society is founded. Representations falsely purported to be from, or on behalf of, a Commonwealth body could undermine public confidence in the integrity and authority of the Australian Government. Commonwealth departments, companies, services and programmes cannot function effectively unless recipients trust the legitimacy and lawfulness of representations emanating from them.
The offences and injunction power are a reasonable and proportionate way of achieving the aim of protecting public order. In order to commit an offence under section 150.1, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, the relevant representation, and whether they, in fact, are a Commonwealth body, or act on behalf of, or with the authority of, a Commonwealth body. Negligent or accidental creation of a false representation will not be sufficient to establish the fault elements of these offences.
The offences and injunction power limit only a person's ability to make representations that falsely represent that person to be, or be acting on behalf of, or with the authority of, a Commonwealth body. The provisions do not affect genuine representations made on behalf of a Commonwealth body, or that are made with the authority of the body. They also do not impact comment or criticism about a Commonwealth body, provided this is done without falsely representing that the comment or criticism is made by or on behalf of a Commonwealth body. Further, the provisions will not impact representations made solely for genuine satirical, academic or artistic purposes.  ...
. Division 150 will contain new offences to criminalise false representations in relation to a Commonwealth body. It will also contain a new injunction power to prevent conduct amounting to a false representation of a Commonwealth body. ...
New subsection 150.1(1) creates an offence where a person engages in conduct that results in, or is reasonably capable of resulting in, a false representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body. The maximum penalty for this offence is two years' imprisonment, which mirrors the penalty for the current basic offences of impersonating a Commonwealth public official in subsections 148.1(1) and (2) of the Criminal Code.
Pursuant to this offence, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. This threshold of recklessness applies to both the result (i.e. a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the circumstance (i.e. the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body).
This threshold captures conduct where a person does not necessarily intend to create the relevant representation, or does not necessarily believe the circumstance to be false, but where they are aware that there is a substantial risk that such a representation will occur, or that the circumstance is false, and it is unjustifiable for them to take that risk. This threshold is necessary to ensure the offence covers false representations that, whilst not intentional, are equally capable of undermining public confidence in the integrity and authority of the Australian Government and are made in circumstances where the accused is aware of a substantial risk of misrepresentation. These fault elements for result and circumstance mirror the elements for the current offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code.
This offence applies to a 'person', which includes both natural and legal persons. This offence relies on the definition of a 'Commonwealth body', which is set out in new subsection 150.1(7).
For the purposes of this offence, relevant conduct may include, but is not limited to:
  • writing of a letter on the letterhead (or purported letterhead) of a Commonwealth body 
  • sending an electronic communication (including an email or text message) imputed to be from or on behalf of a Commonwealth body 
  • taking out an advertisement in the name of a Commonwealth body, or 
  • issuing of a publication in the name of a Commonwealth body.
New subsection 150.1(2) creates an aggravated offence where a person falsely represents that the person is a Commonwealth body, or acts on behalf of, or with the authority of, a Commonwealth body, with the intention of obtaining a gain, causing a loss, or influencing the exercise of a public duty or function. The maximum penalty for this offence is five years' imprisonment, which mirrors the penalty for the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3) of the Criminal Code.
As with the primary offence, a person must be reckless as to whether their conduct will result in, or is reasonably capable of resulting in, a false representation. Again, this threshold of recklessness applies to both the 'result' (i.e., a representation that the person is a Commonwealth body, or is acting on behalf of, or with the authority of, a Commonwealth body) and the 'circumstance' (i.e., the person in fact not being the Commonwealth body, or acting on behalf of, or with the authority of, the Commonwealth body). The rationale for applying recklessness to these elements of the aggravated offence is the same as is stated in respect of the primary offence.
The elements of the aggravated offence mirror those of the current aggravated offences of impersonating a Commonwealth public official in subsections 148.1(3) and 148.2(3).
The terms 'obtaining', 'gain', and 'loss' are defined in section 130.1 of the Criminal Code.
The phrase 'influencing the exercise of a public duty or function' in sub-paragraph 150.1(2)(c)(iii) is not intended to incorporate the definition of 'duty' in section 130.1. This is because the phrase 'influencing the exercise of a public duty or function' in sub-paragraph 150.1(2)(c)(iii) is not limited on its face to being 'in relation to a person who is a Commonwealth public official' or 'in relation to a person who is a public official'. Rather, the phrase 'public duty or function' should be interpreted according to its ordinary and natural meaning.
Consistent with its ordinary and natural meaning, the phrase 'public duty or function' is not intended to apply to so-called 'civic duties' of private citizens, such as voting.
This offence applies to a 'person', which includes both natural and legal persons. This offence relies on the definition of a 'Commonwealth body' in new subsection 150.1(7).
For the purposes of these offences, relevant conduct may include, but is not limited to:
  • writing of a letter on the letterhead (or purported letterhead) of a Commonwealth body
  • sending an electronic communication (including an email or text message) imputed to be from or on behalf of a Commonwealth body 
  • taking out an advertisement in the name of a Commonwealth body, or 
  • issuing of a publication in the name of a Commonwealth body.
New subsection 150.1(3) provides that, for the purposes of new section 150.1, it is immaterial whether the Commonwealth body exists or is fictitious. Provided a person makes a false representation in relation to a Commonwealth body, it is not necessary that the specific body they purport to represent be actually in existence.
For example, conduct amounting to a person falsely representing themselves to be, or to be acting on behalf of, or with the authority of, the fictional Commonwealth Department of Alcohol and Fisheries or Ministry of Internal Security, could be criminalised under the new offences in section 150.1.
New subsection 150.1(4) provides that if the Commonwealth body is fictitious, the offences under subsections (1) and (2) do not apply unless a person would reasonably believe that the Commonwealth body exists.
This provision is intended to ensure that the offences only apply in circumstances where the Commonwealth body referred to, although fictitious, is reasonably capable of being believed to be a real Commonwealth body. This provision is intended to exclude application of the offences where the fictional body referred to is clearly not capable of being a real Commonwealth body.
For example, the offences would not apply if a person falsely represented themselves to be, or to be acting on behalf of, or with the authority of, the fictional Ministry of Silly Walks, the Australian Government Hot Dog Authority or the Commonwealth Fund for Jane's New Car, on the basis that a reasonable person would not believe such Commonwealth bodies exist.
However, the offences will apply to conduct amounting to falsely representing oneself to be, or to be acting on behalf of, or with the authority of, a fictitious Commonwealth body where a person would reasonably believe such a body exists, for example the Commonwealth Department of Alcohol and Fisheries or the Ministry of Internal Security.
New subsection 150.1(4) does not create an offence-specific defence. Rather, the condition of 'unless a person would reasonably believe that the Commonwealth body exists' forms an element of the offence and the burden of proof for proving that element will sit with the prosecution. That is, there is no reversal of the onus of proof with respect to subsection 150.1(4).
New subsection 150.1(4) further provides that, if the Commonwealth body is fictitious, the offences do not apply unless the condition is fulfilled. The condition is therefore a condition precedent to the offence being applicable, and forms an element of the offence to be proven by the prosecution. For example, if a person falsely represents they are the Ministry for Hot Dog Appreciation - a fictitious Commonwealth body - no offence is committed unless the prosecution can prove that a member of the public would reasonably believe that the Ministry for Hot Dog Appreciation in fact exists.
New subsection 150.1(5) provides that new section 150.1 does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication. This section is not intended to limit the operation of section 15A of the Acts Interpretation Act 1901.
New subsection 150.1(6) applies extended geographical jurisdiction (category C) to the offences created by new section 150.1. This means that offences relating to the impersonation of a Commonwealth body will apply whether or not the conduct or the result of the conduct constituting the alleged offence occurs in Australia. However, a defence may be available if there is no equivalent offence under the law of a foreign country where the conduct occurs. This defence does not apply if the person charged is of Australian nationality.
This extension of geographical jurisdiction is consistent with the approach taken under existing offences of impersonating a Commonwealth public official in section 148.1 of the Criminal Code.
New subsection 150.1(7) inserts a new definition of 'Commonwealth body' that applies to the offences under new section 150.1. This item also introduces a new definition of 'conduct' that applies to the offences under section 150.1.
The new subsection provides that a 'Commonwealth body' means a Commonwealth entity; or a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013; or a service, benefit, program or facility provided by or on behalf of the Commonwealth.
According to the Dictionary to the Criminal Code, a Commonwealth entity means the Commonwealth and a Commonwealth authority, which includes a body established by or under a law of the Commonwealth (with certain exceptions specified in the definition). 'Commonwealth' means all parts of the Commonwealth, including departments of state and other non-corporate Commonwealth entities.
A Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 means a Corporations Act 2001 company that the Commonwealth controls. It does not include subsidiary companies. Some examples of a Commonwealth company are NBN Co Limited and Aboriginal Hostels Limited.
Paragraph 150.1(7)(c) is intended to be interpreted broadly as any service, benefit, program or facility for some or all members of the public that is provided by the Commonwealth, whether under a law of the Commonwealth or otherwise. The terms 'service', 'benefit', 'program', or 'facility' are intended to have their ordinary and natural meaning. Some examples of a Commonwealth service are Centrelink and Medicare.
This item also stipulates that, for the purposes of new section 150.1, the term 'conduct' does not include conduct engaged in solely for genuine satirical, academic or artistic purposes.

13 September 2017

Slavery

In consulting about responses to abuses in the global supply chain regime the Australian Government has identified Option Three – 'Targeted regulatory action through a Modern Slavery in Supply Chains Reporting Requirement' - regarding "a Modern Slavery in Supply Chains Reporting Requirement tailored to the Australian context".

The Consultation Paper indicates that
this would require entities operating in Australia with total annual revenues of at least $100 million to report annually on their efforts to address modern slavery in their operations and supply chains. ...This regulatory action will be supported by comprehensive Government guidance and awareness-raising materials for the business community. This guidance and awareness-raising material will help build the business community’s capacity to respond to modern slavery. The Australian Government will also work collaboratively with the business community and civil society to refine the reporting requirement model. This consultation process will enable Government to leverage business and civil society expertise and ensure the reporting requirement is as simple, sensible and effective as possible.
Targeted regulation through a Modern Slavery in Supply Chains Reporting Requirement would address the Australian Government’s primary objective for reform, which is to equip and enable the business community, led by large business, to respond effectively to modern slavery and develop and maintain responsible and transparent supply chains. This type of regulation would have a number of key benefits. Importantly, a reporting requirement would provide certainty and consistency for the business community because it would set clear standards that apply to all entities above the set revenue threshold. This will create a level playing field for large business and ensure that sections of the business community are not disadvantaged by taking action to disclose and address modern slavery risks. This form of regulation will also send a clear message to the business community that the Australian Government will work with them to address modern slavery and will not tolerate Australian businesses benefiting from modern slavery in their operations and supply chains.
The Australian Government considers that direct government regulation is appropriate in this context rather than industry self-regulation. This is consistent with the community’s expectation that Government will lead on this issue and will ensure that the reporting requirement applies to all appropriate entities and not just specific industries. Taking targeted regulatory action is also consistent with the Australian Government’s response to other supply chain-related or social issues, including illegal logging and gender equality. The Commonwealth Illegal Logging Prohibition Act 2012 requires importers to implement risk management systems to address the risk of illegally harvested wood being used in imported products. More broadly, the Commonwealth Workplace Gender Equality Act 2012 requires certain non-public sector entities to submit annual reports to the Workplace Gender Equality Agency under a range of gender equality indicators.
Targeted regulation through a Modern Slavery in Supply Chains Reporting Requirement will have a regulatory impact on the business community. It may also have a financial cost for the Australian Government if it develops and maintains a central repository of statements. The Australian Government recognises the importance of ensuring that there is no undue regulatory impact on the business community and is committed to finding an appropriate balance between regulation and flexibility. The Australian Government has developed preliminary regulatory cost estimates for a Modern Slavery in Supply Chains Reporting Requirement using the Government’s Regulatory Burden Measurement framework. These costings are based on a reporting requirement being imposed on entities with total annual revenue in excess of $100 million (approximately 2,000 large corporations and entities operating in Australia). The Australian Government’s preliminary estimate is that this reporting requirement model could impose an annual regulatory burden of up to $23 million (or approximately $11,500 per entity). We will engage closely with business during the consultation process to refine this estimate.
The Paper states
The Australian Government’s preferred option is to develop and implement a Modern Slavery in Supply Chains Reporting Requirement after a period of public consultation. We believe this is on balance the best and most effective way for us to equip and enable the business community to respond effectively to modern slavery and develop and maintain responsible and transparent supply chains. We also believe that the cost of regulating is in proportion to the real-world risk. Modern slavery involves grave abuses of human rights and serous criminal misconduct and it is appropriate that Government takes regulatory action to support the business community to combat this issue.
The Australian Government has carefully considered current international best-practice and the type of regulation required in the Australian context. As part of this process, the Commonwealth Attorney-General’s Department undertook a detailed review of the effectiveness of the UK modern slavery reporting requirement and other key international regulatory mechanisms between December 2016 and June 2017. Subject to feedback received throughout the course of the consultation process, the Australian Government proposes to establish a reporting requirement based on the key features set out below. This reporting requirement builds on the UK reporting requirement to create a simple, sensible and effective reporting requirement, suitable for the Australian context. Where appropriate, the Australian Government proposes to adopt similar requirements to the UK model to minimise the need for the business community to comply with inconsistent regulation across jurisdictions.
Legislative basis
The reporting requirement will be established through a new Act of Parliament and would not be implemented by amending existing legislation. Terminology Every entity covered by the reporting requirement will be required to report on their actions to address modern slavery by publishing annual Modern Slavery Statements. For the purposes of the reporting requirement, the Australian Government proposes that modern slavery will be defined in the Act to incorporate conduct that would constitute a relevant offence under the existing human trafficking, slavery and slavery-like offence provisions set out in Divisions 270 and 271 of the Commonwealth Criminal Code. This means modern slavery will encompass slavery, servitude, forced labour, debt bondage, and deceptive recruiting for labour or services. The definition of modern slavery will exclude practices such as forced marriage that are unlikely to be present in business operations and supply chains.
Threshold
As part of the public consultation process, the Australian Government will collaborate with business and civil society to appropriately define the types of entities that the reporting requirement will apply to and to clarify how the proposed revenue threshold will apply. At this stage, the Australian Government proposes to define entity broadly to include a range of entity types, including bodies corporate, unincorporated associations or bodies of persons, superannuation funds and approved deposit funds. The Australian Government does not propose to limit the application of the reporting requirement to high risk sectors or importers because modern slavery can occur in a range of domestic and international industries and many large entities operate across multiple sectors.
The Australian Government also proposes the revenue threshold for the reporting requirement will be set no lower than $100 million total annual revenue. This is broadly consistent with other thresholds, such as the threshold used for public companies in the Australian Taxation Office’s corporate tax transparency report. This will help to provide clarity for the business community about which entities will be covered by the reporting requirement. The Australian Government proposes that the threshold be set through regulation to allow for periodic adjustments if required. The Australian Government recognises that some entities below the threshold may also wish to comply with the reporting requirement and will allow these entities to ‘opt in’ to the reporting requirement.
Timeframe for reporting
The Australian Government proposes that entities will be required to publish Modern Slavery Statements under the reporting requirement within five months after the end of the Australian financial year. This will provide certainty for the business community by ensuring that entities cannot seek any competitive advantage by delaying publication of Modern Slavery Statements. It will also ensure that Government, the business community and civil society can more accurately assess compliance with the reporting requirement. If necessary, the Australian Government will provide for a phased introduction of the reporting requirement to ensure the business community has sufficient preparation time.
Focus of reporting
Subject to consultation with the business community and civil society, the Australian Government anticipates the reporting requirement will apply to all entities headquartered in Australia, or entities that have any part of their operations in Australia, and meet the revenue threshold. All entities covered by the reporting requirement will be required to report on their actions to address modern slavery in both their operations and their supply chains. The Australian Government will provide detailed guidance for the business community about the definition of operations and supply chains and will develop this definition in collaboration with the business community and civil society. The Australian Government proposes that the definition of supply chains extend beyond first tier suppliers.
At this stage, the Australian Government does not propose that the reporting requirement apply to Commonwealth or state and territory procurement. Commonwealth procurement is already governed by a legislative framework that sets out rules for spending public money, including in relation to ethical sourcing. The Australian Government is considering ways to demonstrate leadership on modern slavery through procurement, including through consideration of an appropriate Procurement Connected Policy on Human Rights.
Reporting areas
To ensure the business community does not need to comply with inconsistent regulation across jurisdictions, the Australian reporting requirement will require entities to report against substantially the same criteria set by the UK reporting requirement. In the UK, reporting against criteria is optional. Subject to feedback received through this consultation process, the Australian Government proposes that entities will be required to report against a consolidated set of four criteria. These four criteria cover all of the optional criteria set out in the UK and mean an entity’s Modern Slavery Statement must, at a minimum, include information about:
1. The entity’s structure, its operations and its supply chains
2. The modern slavery risks present in the entity’s operations and supply chains
3. The entity’s policies and process to address modern slavery in its operations and supply chains and their effectiveness (such as codes of conduct, supplier contract terms and training for staff), and
4. The entity’s due diligence processes relating to modern slavery in its operations and supply chains and their effectiveness.
Requiring entities to report against each of these criteria will ensure that the content of statements is consistent and more easily comparable. It will also provide certainty to entities about what to include in Modern Slavery Statements. To ensure this requirement will not impose an additional burden on the business community, the Australian Government proposes to provide detailed guidance about the nature and extent of the information that should be included in statements. Entities will also have the flexibility to determine what, if any, information they provide against each of the four criteria and whether to include any additional information.
Approval of Modern Slavery Statements
As with the UK reporting requirement, Modern Slavery Statements published by entities must be approved at the equivalent of board level. Statements will also need to be signed by a director. This will anchor the reporting requirement in corporate governance and ensure that modern slavery risks are considered at senior levels within each entity. Coupled with scrutiny from civil society, the approval process for modern slavery statements will also help ensure information provided by entities is accurate.
Guidance for business
The Australian Government will provide clear and detailed guidance and awareness-raising materials for the business community. The Australian Government anticipates this will include a reporting template, best-practice examples and information about how the business community can remedy and report instances of modern slavery identified in their supply chains or operations. The guidance will also support smaller entities to ‘opt in’ to the reporting requirement. Government will develop this guidance in consultation with the business community and civil society and will make the guidance available as soon as practicable, prior to the reporting requirement taking effect.
Monitoring and Evaluation Entities will be required to publish Modern Slavery Statements on their webpages. Subject to feedback obtained through this consultation process, the Australian Government also proposes to provide for a free, publicly accessible central repository. This repository will be searchable and will include all statements published in compliance with the reporting requirement. This repository will be run by either the Australian Government or a third party. The Australian Government will also establish a mechanism for the business community to provide feedback to Government about the operation and effectiveness of the reporting requirement. Consumers and civil society will also be consulted. The Australian Government will review the legislation three years after introduction, involving further public consultation, to ensure that the reporting requirement remains effective in the Australian context.
Compliance mechanism
As in the UK, the Australian Government will not include punitive penalties for non-compliance. The Australian Government will monitor general compliance with the reporting requirement and entities that do not comply with the reporting requirement may be subject to public criticism.
The Australian Government is considering options for oversight of the reporting requirement, including the feasibility of and requirement for independent oversight. If implemented, any oversight mechanism could perform a number of functions, including: maintaining the central repository of statements, raising awareness about modern slavery risks, and/or providing a single point of contact for businesses seeking advice and assistance.
The Australian Government is also considering ways to support business groups and civil society to undertake analysis and benchmarking of Modern Slavery Statements. The Australian Government will assess compliance with the reporting requirement during the proposed post-implementation review of the legislation after three years.
The consultation questions are
• Is the proposed definition of ‘modern slavery’ appropriate and simple to understand?
• How should the Australian Government define a reporting ‘entity’ for the purposes of the reporting requirement? Should this definition include ‘groups of entities’ which may have aggregate revenue that exceeds the threshold?
• How should the Australian Government define an entity’s revenue for the reporting requirement? Is $100 million total annual revenue an appropriate threshold for the reporting requirement?
• How should the Australian Government define an entity’s ‘operations’ and ‘supply chains’ for the purposes of the reporting requirement?
• How will affected entities likely respond to the reporting requirement? As this is how the regulatory impact is calculated, do Government’s preliminary cost estimates require adjustment?
• What regulatory impact will this reporting requirement have on entities? Can this regulatory impact be further reduced without limiting the effectiveness of the reporting requirement?
• Are the proposed four mandatory criteria for entities to report against appropriate? Should other criteria be included, including a requirement to report on the number and nature of any incidences of modern slavery detected during the reporting period?
• How should a central repository for Modern Slavery Statements be established and what functions should it include? Should the repository be run by the Government or a third party?
• Noting the Government does not propose to provide for penalties for non-compliance, how can Government and civil society most effectively support entities to comply with the reporting requirement?
• Is the five month deadline for entities to publish Modern Slavery Statements appropriate? Should this deadline be linked to the end of the Australian financial year or to the end of entities’ financial years?
• Should the reporting requirement be ‘phased-in’ by allowing entities an initial grace period before they are required to publish Modern Slavery Statements?
• How can the Australian Government best monitor and evaluate the effectiveness of the reporting requirement? How should Government allow for the business community and civil society to provide feedback on the effectiveness of the reporting requirement?
• Is an independent oversight mechanism required, or could this oversight be provided by Government and civil society? If so, what functions should the oversight mechanism perform?
• Should Government reconsider the other options set out in this consultation paper (Options 1 and 2)? Would Option 2 impose any regulatory costs on the business community?

11 September 2017

Hong Konger Identity

'The Legal Foundation of Hongkonger Identity' by Simon T M Ng comments that
The individual exits in a context, bounded by history and all sorts of political, legal and social institutions. The individual’s identity, rights, freedoms and duties are largely defined and shaped by these secular institutions. Discussion on the Hongkonger identity has been keen recently. The legal aspect of it, however, is usually overlooked. How does the law define the identity of the people of Hong Kong? This paper argues that residency law in Hong Kong provides the fundamental framework in defining who belong to Hong Kong and it gives the foundation on which a civic identity of Hongkongers may be constructed. “Hongkongers” in this sense is inclusive and rights based, and all Hongkongers share constitutionally guaranteed rights and freedom in common. This embracive legal identity also calls for a public morality requiring equal respect and concern for everyone. Such identity is preferred to other narratives, such as one based solely on restrictive linguo-cultural distinction (Cantonese and Cantopop culture for example). Calling for the morality of equal respect and concern is always challenged in the face of narrow, ethnocentric localism discourses. Upholding of such morality requires courage and clear voices. The Catholic Church, as defender of human dignity and bearing the roles of prophet, teacher and servant, has an important role to play here. ... 
Identity tells who we are and where do we belong. Yet, it is a complicated, multi-faceted and protean construct. And one can, at the same time, have different identities: personal identity (what I say I am); social identity (what we say we are); legal identity (what the law says I am or we are) and so forth. How does the law define us as members of the Hong Kong Special Administrative Region? This is critical in defining our rights and freedoms and in constructing our relationship with our fellow Hongkongers, compatriots in the same State, the wider community and beyond. This article intends to give an account on the law defining our legal identity: how has Hong Kong Permanent Resident developed out of the unique historical and constitutional context of Hong Kong? How does the law define it? How does it relate to the wider legal category of Chinese nationality? And how the understanding of the law is relevant to the discourse and narratives on the Hongkonger’s identity? It argues that residency law in Hong Kong provides the fundamental framework in defining who belong to Hong Kong and it gives the foundation on which a civic identity of Hongkongers may be constructed. “Hongkongers” in this sense is inclusive and rights based, and all Hongkongers share constitutionally guaranteed rights and freedom in common. This embracive legal identity also calls for a public morality requiring equal respect and concern for everyone. Such identity is preferred to other narratives, such as one based solely on restrictive linguo-cultural distinction (Cantonese and Cantopop culture for example). Calling for the morality of equal respect and concern is always challenged in the face of narrow, ethnocentric localism discourses. 

08 September 2017

GDPR

'Compensation for Breach of the General Data Protection Regulation' by Eoin O'Dell comments
Article 82(1) of the General Data Protection Regulation (GDPR) provides that any “person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered”. As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages.
After the introduction, the second part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and compares and contrasts the English version of Article 82(1) GDPR with the versions of that Article in the other official languages of the EU, and concludes that at least 5 of the versions of Article 82(1) GDPR are unnecessarily ambiguous, though the CJEU (eventually, if and when it is asked) is likely to afford it a consistent broad interpretation. However, the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The third part of this article compares and contrasts the compensation provisions in the Irish government’s General Scheme of the Data Protection Bill 2017 with existing legislation and case-law in Ireland and the UK, and with incorporating legislation and Bills in other EU Member States, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed.
To ensure that any person who has suffered such damage has an effective remedy pursuant to Article 47 CFR, Member States will have to provide, pursuant to Article 19 TEU, remedies sufficient to ensure effective legal protection in the fields of privacy and data protection. In particular, they will have to provide expressly for a claim for compensation, incorporating Article 82(1) GDPR into national law. Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.

07 September 2017

Calculus

The short 'Death to the Privacy Calculus?' by Bart P. Knijnenburg, Elaine M. Raybourn, David Cherry, Daricia Wilkinson, Saadhika Sivakumar and Henry Sloan comments 
The “privacy calculus” has been used extensively to describe how people make privacy-related decisions. At the same time, many researchers have found that such decisions are often anything but calculated. More recently, the privacy calculus has been used in service of machine learning approaches to privacy. This position paper discusses the practical and ethical questions that arise from this use of the privacy calculus. ...
Laufer and Wolfe coined the term “calculus of behavior” to refer to the cognitive process that under- lies people’s disclosure decisions. Many researchers have since used the term “privacy calculus” to describe privacy-related decision behaviors, and it has become a well-established concept in privacy research. Other researchers, however, have demonstrated that people rarely take a truly calculative approach to privacy decision making, and are often prone to take mental shortcuts instead. We discuss these departures from rationality, how they come about, and the impact they have on the presumed normative justifications for existing privacy solutions. This will lead us to a relatively new type of privacy solution, user-tailored privacy, which addresses some of the ethical questions raised by existing solutions. User-tailored privacy uses the privacy calculus prescriptively, with the risk/benefit tradeoff serving as an objective function for machine learning algorithms. We will argue that this use of the privacy calculus raises its own set of practical and ethical questions that may cause ethical dilemmas. In outlining these questions, we hope to spark a discussion of the ethical concerns regarding user-tailored privacy