12 March 2011

Getting Hitched

Reading 'Reassessing the Saul Bass and Alfred Hitchcock Collaboration' by Pat Kirkham in 18(1) West 86th (2011)
Drawing upon a wide range of sources, including interviews with designer and filmmaker Saul Bass (1920–96) and film director Billy Wilder (1906–2002), this article reassesses the evidence, scholarship, and debates about the contributions made by Bass to three films directed by Alfred Hitchcock (1899–1980). Between 1958 and 1960 Bass created main title sequences for Vertigo (1958), North by Northwest (1959), and Psycho (1960) and an advertising campaign for Vertigo, and he also acted as a "pictorial consultant" for Psycho (a role that included the design and storyboarding of the now-famous shower scene). The article, which seeks to reopen and redirect certain debates, constitutes a major evaluation of one of the most visually productive collaborations in the history of U.S. cinema.

Shockjock Smackdown

Catching up with the judgement in Hogan v Hinch [2011] HCA 4, the High Court's rejection of a challenge by Melbourne media personality (on my dourer days I woud replace 'personality' with 'self-involved shockjock') Derryn Hinch to the validity of suppression orders in proceedings under the Serious Sex Offenders Monitoring Act 2005 (Vic) and characterisation as an offence of publication of material contravening those orders.

Hinch was charged in 2008 with contravening orders made in 2007 and 2008 by the Victorian County Court under s 42 of the Act. (The statute was subsequently repealed and replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

The orders prohibited publication of any information that might enable identification of certain convicted sex offenders (the subject of extended supervision orders). The orders reflected s 42(1)(c) of the Act, which empowers Victorian courts to make such orders where they are satisfied that it was "in the public interest" to do so. The complementary s 42(3) created an offence of publication of material in contravention of a suppression order made under s 42(1).

The same orders authorised provision of information to CrimTrac, the national offender database manager, for entry on the Australian National Child Offender Register. That provision reflected the primary objective of the Act, "to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community". The expectation is that such supervision will occur within a formal legal framework and involve the state rather than an individual journalist. Accountability matters.

The 2008 charges followed statements made by Hinch on his personal site and at a public rally in Melbourne. In July questions about the validity of s 42 went to the High Court. There were intervenors from the Commonwealth, NSW, Qld, SA and WA.

Hinch's representatives argued that there were three grounds for holding that the section was invalid.

Firstly, they sought to draw implications from Chapter III of the Constitution, ie that s 42 impermissibly diminished the institutional integrity of Victoria's courts.

Secondly, suppression orders made under s 42 were contrary to an implication from Chapter III that all state and federal court proceedings must be conducted in public.

Thirdly, s 42 was invalid because it infringed the implied constitutional freedom of political communication, inhibiting the ability of people to criticise legislation and its application in the courts to seek legislative and constitutional changes and changes in court practice by public assembly and protest, and the dissemination of factual data concerning court proceeding.

Unsurprisingly, the Court disagreed and declared that s 42 was not invalid upon any of those grounds.

It noted that the requirement for public administration of justice is not an absolute rule. In what one student described as a "smackdown" it unanimously held that the power under the Act to make suppression orders was not contrary to any
implication arising out of Chapter III of the Constitution. The s 42 requirement that the Victorian courts consider "public interest" when deciding whether to make a suppression order ensured that the power did not render those courts inappropriate repositories of federal judicial power under Chapter III.

The Court accepted that s 42(3) did burden the freedom of communication about government or political matters. However, the Court held that the law operated in support of the broader scheme embodied in the Act, namely, the protection of the community by the effective monitoring of released sex offenders. Properly construed, the section was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. The section was accordingly not invalid on this ground.

The Court recognised that s 42 was concerned with the conduct of proceedings under the Act, rather than with identifying a particular individual as having committed or having been convicted of an offence. A court in considering s 42(3) would look to the facts, referring to the whole of the publication and any other relevant evidence in deciding whether the intention in publishing someone's name was to disseminate information that might enable identification of an offender or another person who has appeared or given evidence in the proceeding under the Act.

The High Court justices stated that the orders do represent -
an infringement upon the open-court principle and it is in part on that basis that their validity and that of s 42 is attacked. It is necessary, therefore, to consider the nature and scope of the open-court principle.

An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.
French CJ went on to comment that -
It was submitted for Mr Hinch that s 42 conferred a function upon the Supreme and County Courts incompatible with their character as courts capable of exercising the judicial power of the Commonwealth pursuant to Ch III of the Constitution. His specific complaints in summary were:
1. The section empowers a court, without any limitations or safeguards, to abrogate the open justice principle.

2. The section empowers a court to make decisions having a bearing on public safety, without providing reasons.

3. There is no mechanism for appeal or review of a suppression order under s 42.
The complaints are not sustainable. There are limitations upon the power to make suppression orders under s 42. Such orders must be made according to law. Their operation does not extend beyond what s 42, properly construed, permits. They cannot impose a general prohibition on the publication of material in the public domain unless that publication might have the prescribed effect of enabling a given person to be "identified" in the limited sense already explained. The "public interest" consideration does not authorise the court to act upon its whim. It directs the court to attend to the main purpose of the legislation and the stated purposes of extended supervision orders. It necessarily requires attention to be directed to the open justice principle and the common law freedom of speech as well as the Charter. ...

The making of an order under s 42 is a judicial function. It is a significant decision which must be made having regard to the public interest. It imposes restrictions upon freedom of speech and infringes the open-court principle. As appears below, it is amenable to review or appeal. In the ordinary course a judge making such an order, other than a short-term "holding" order, should give reasons for so doing. A suppression order made in association with an extended supervision order, even if, as in this case, qualified by words such as "until further order", cannot thereby be immunised from any obligation to explain it on the basis that it is merely interlocutory. There is an express requirement that a court making a decision in relation to an extended supervision order must state the reasons for its decision and cause them to be entered into the records of the court. Reasons for making the extended supervision order should ordinarily incorporate the reasons for any associated suppression order.

There is nothing in the Act which authorises or requires an application for an extended supervision order to be conducted in camera. Any order to that effect would have to be an exercise of inherent jurisdiction, implied power or a general statutory power outside the Act. There is nothing in the Act to prevent media organisations seeking, in the ordinary way, to apply to be heard in proceedings under the Act in relation to any proposed suppression order. If the proceedings are conducted in the County Court, then they are subject to review for jurisdictional error or error of law on the face of the record. A media organisation affected by a suppression order would have standing to seek such review in the Supreme Court. It is true that a media organisation given leave to intervene in extended supervision order proceedings in the Supreme Court is not granted any right of appeal under Pt 3 of the Act. That Part only provides for appeals by offenders and by the Secretary against the making, or refusal to make, an extended supervision order. However, an appeal lies to the Court of Appeal from any determination of the Trial Division of the Supreme Court constituted by a judge of the Court unless otherwise expressly provided by any Act. That a media organisation affected by a suppression order will generally have standing in an appellate court to challenge that order by way of appeal, does not seem to be in doubt.

None of the specific complaints advanced on behalf of Mr Hinch relating to the operation of s 42 are made out.
He concluded, after discussing Lange v Australian Broadcasting Corporation [1997] HCA 25 and Coleman v Power [2004] HCA 39 - two key implied right of political communication cases, that -
50. It is conceivable that a suppression order, authorised under s 42, could have the effect of preventing or restricting public discussion of the supervision or treatment by government agencies of a particular offender whose identity and personal history is relevant to that discussion. On the other hand, as Hayne J observed in APLA Ltd v Legal Services Commissioner (NSW): "in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication".

That observation may indeed be an answer to the submissions made on this issue on behalf of Mr Hinch in so far as the identification of offenders might be used as a rhetorical device. It may be, however, that there are occasions on which the use of the offender's identity is directly relevant to a point to be made about public administration in relation to serious sex offenders generally. On that basis it may be accepted that s 42 has the capacity to burden political communication. Properly construed, however, the section is, in my opinion, reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution. Its objects are the protection of the community and the rehabilitation of serious sex offenders who are at risk of re-offending after they have completed their sentences. Having regard to the limits on the application of s 42, properly construed, and its relationship to long-established common law and implied powers, it is a reasonable means of achieving those objects. It is not applied absolutely. The making of orders under s 42 requires consideration by the court of the public interest in light of the purposes of the Act, the open-court principle, the common law freedom of speech and the freedom of expression referred to in the Charter. In my opinion the provision satisfies the second limb of the Lange test.

Gotta love a telco

Last month's Australian Competition & Consumer Commission v Singtel Optus Pty Limited [2011] FCA 87 concerns misleading and deceptive conduct by Optus in breach of s52 of the Trade Practices Act 1974 (Cth).

Advertisements by Australia's second-largest telecommunication service provider had represented that Optus' offer of a broadband internet service included "Unlimited Broadband". Unlimited seems to mean different things to different people, with the Court noting that Optus's plan - ie promoted through the advertisements and covered by the then TPA - "contains a limitation or restriction imposed by the respondent that the speed of the broadband internet service provided to consumers will be reduced to 256 kilobits per second after consumers reach a specified data allowance".

Limitation per se is not a breach of the statute. However the the ads, which appeared on television and in print (very fine print) last year, did not "sufficiently and prominently" state that -
1. that such a reduction will be applied; and

2. that some multimedia uses will be either unworkable or significantly impaired at the reduced speed – including, downloading video content will take between 30 to 70 times longer and video streaming and video calls will not be available or be substantially interrupted or not work at all.
The Court held that -
61. The reason the four advertisements are misleading is that they describe the broadband service as unlimited without qualifying that description by stating both that the speed of the service is dethrottled to 256kbps after a specified data allowance is reached and by stating the particular effects of that speed reduction on the functionality of the service. A declaration should be made which describes the way in which the advertisements contravene s 52 of the Act. This will inform the respondent and other suppliers of broadband services of some of the limits which must be observed in promoting broadband services. It will assist the applicant in fulfilling its statutory regulatory function.
62. The advertising campaigns are long over. There is little point in granting the injunction sought, even though the Court has power to grant an injunction in these circumstances: s 80(4)(a) of the Act. The respondent does not intend to use these advertisements again. The only form of injunction which would be appropriate is that formulated by the applicant at the invitation of the Court and set out in [41] of these reasons for judgment. It was produced as a fall back position rather than as the applicant’s preferred form of relief. The form of the injunction is directed to the circumstances of the present advertisements. As the context of each advertising campaign is important in determining whether an advertisement is misleading it is more appropriate to await concrete circumstances than to grant an injunction unlikely to address the full context of any future advertisements.
In a comment on procedure it noted that
The circumstances in which the applicant brings proceedings in the public interest are often not, or not fully, known to the Court. Hence the Court is generally restrained in commenting on the way in which the applicant prosecutes applications. Nonetheless, some observations should be made in this case.

The advertisements were misleading. In the end, the respondent [Optus]did not put up much resistance to that conclusion. The real argument revolved around the factors which rendered them misleading and, consequently, what relief was appropriate in view of the proper analysis of the nature of the contravention. It took the suggestion of the Court to prompt the applicant to make an application for interlocutory relief. The application resulted in agreed orders in relation to most of the issues raised which went beyond the four advertisements ultimately in contention. By that time the advertising campaigns were over, any harm done to consumers had already occurred. The proceeding was used by the applicant, unsuccessfully as it turned out, to seek to vindicate its view against the general use of the word unlimited in advertising certain broadband services. Whilst it is proper for the applicant to secure elucidation of the law from the Court, it should not be at the expense of assisting individual consumers who might be harmed by ongoing misleading advertising. It may have been a greater public benefit if the applicant had brought an urgent interlocutory application whilst the advertising campaigns were still underway. One need only look at the large number of reported judgments of the Court to see that misleading advertising in the telecommunications industry is an all too common phenomenon. A corporation which engages in such conduct has little to fear if the applicant initiates proceedings only after advertising campaigns are completed. But if a carefully designed and expensive advertising campaign had to be aborted during its currency as a result of an interlocutory injunctions granted by the Court, more care might be taken to ensure compliance with the provisions of the Act, and the consequent protection of the public would be achieved.


From Thursday's SMH 'ID protection at crisis point' article -
professor of law and information systems at the University of NSW, Graham Greenleaf, believes much of the blame for what some see as an unchecked escalation in demands for personal data rests with successive federal privacy commissioners.

He says the fault lies not with the powers entrusted to the commissioner but in how rarely those powers are exercised.

Lane, Zinn and Nigel Waters of the Australian Privacy Foundation all voice similar concerns.
Readers of this blog and of my papers will be unsurprised that I concur.

The article goes on that -
Greenleaf acknowledges the commission has a good record for mediating disputes. But he says the commission's strongest power - the ability to issue formal rulings (known as Section 52 determinations) to clarify what constitutes a breach of privacy - has been used for only one case in the 10 years since the commissioner was granted authority over the private sector.

The commission can grant compensation to an aggrieved consumer but, Greenleaf says, details of those are all but unknown.

"We know absolutely nothing - not a scintilla - about what a breach of privacy is worth, because the privacy commissioner refuses to publish any information that actually reveals that," he says. "It's not the sorry state of enforcement powers. It's the sorry state of enforcement."

Pilgrim, who has been privacy commissioner since last July, has not yet issued a Section 52 determination but he says the commission has published case notes on about two dozen complaints to educate businesses. He says the commission shuns using its biggest guns in favour of mediation.

In the 2009-10 enforcement year, the commission handled 1201 complaints. Pilgrim anticipates a 10 per cent increase in complaints this year, largely because of online practices.

"We think if you take the less adversarial role, it is a better way to get a better outcome," he says.

Greenleaf argues the commission's apparent reluctance to exert its Section 52 power has robbed the system of its ability to deter bad behaviour. "There are no signals sent out as to what really are breaches of the Privacy Act and what the consequences of a breach are," he says.

He also sees the system as "biased" against consumers: companies can, in effect, appeal against the commissioner's decisions. Individuals who believe their privacy has been breached have no such right.

Templeton and the 'Non-Local Mind'

Noted the feisty 'Questioning the Integrity of the John Templeton Foundation' by Sunny Bains in 9(1) Evolutionary Psychology (2011) 92-115 [PDF].

Bains comments that -
In the last few years, the John Templeton Foundation has garnered substantial attention by advertising in many of the US and UK’s most prestigious scholarly magazines and journals. These advertisements have showcased debates on what the Foundation describes as the "Big Questions", some of which have a scientific theme. Various scientists, philosophers, and theologians have been paid to offer their answers to these questions.

This pronounced visibility has led many scientists and academics to wonder about the Foundation and how it operates. One of its stated goals is to forge a closer relationship between religion and science. To many scientists, this is anathema. They see religion and science as fundamentally incompatible and, therefore, that any relationship between them could only be built on dishonesty or ignorance. To others, the goal is laudable: Some scientists welcome the assistance as they attempt to reconcile their personal religious beliefs with their scientific understanding. To still others, religious or not, any science funding (part of the work of the Foundation involves providing grants for scientific research), from whatever source, is welcome.

For many who do not have a problem with the science/religion agenda of the Foundation, the issue is then one of integrity. Is the Foundation what it says it is? Are its stated goals and its actual goals the same (as judged by who and what it funds)? Does it operate in a transparent and non-corrupt way?

In this commentary, I consider five issues that suggest that the John Templeton Foundation is not what it represents itself to be:
1. The Foundation began as an overtly pro-religious organization. It has since changed its stated aims and goals, and their presentation, in a way that seems calculated to make them appear more “open-minded.” Nevertheless, the Foundation’s agenda — based on its actual activities — seems to have remained the same.

2. The Foundation’s organizational structure and the awarding of its prizes appears to be rife with cronyism.

3. Respondents to the Foundation’s “Big Questions” (at least those questions with clear links to science) are disproportionately Foundation advisors and grantees, and yet it is implied that they represent a balance in responses.

4. The Foundation finances prestigious external organizations to run its activities, often without making the participants and/or audience aware of who provided the funding.

5. The Foundation and its current chairman, John (Jack) Marks Templeton, Jr., have a history of funding what could be seen as anti-science activities and groups (particularly concerning climate-change and stem-cell research).
Let's not, of course, ask hard questions about the Giordano Bruno GlobalShift University (deliciously untransparent) under quantum mystic Ervin Laszlo, animateur of World Futures journal (dowsing & quantumbabble territory) and exponent of two-way communication with the dead and Mayan Calendar endism and similar beliefs that - although presumably held sincerely - are from a legal perspective nonsense.

'An Evolutionary Approach Toward Exploring Altered States of Consciousness, Mind-Body Techniques, and Non-Local Mind' by Arthur Saniotis & Maciej Henneberg in 67(3) World Futures (2011) 182-200 nonplusses me with the claim that
A special non-local technique used by extant shamans is the "soul flight", whereby the shaman's soul leaves his/her body and travels to the spirit realms where he/she communes with the ancestral and animal powers. Soul flight is a fundamental feature in many shamanic traditions since the spirit realm is the domain where a shaman fosters his/her mystical powers (Winkelman 2002, 1876). From an evolutionary point of view, shamanic soul flight was integral to group survival since information accessed from the spirit realms enabled group members to access game and edible and medicinal plants. Moreover, shamanic soul flight establishes coherency between the human and non-human realms of existence. In this way, shamanic soul flight may be categorized as an ecological technique for reaffirming the affinity between human and non-human realms of existence. Aspects of shamanic soul flight probably informed various non-local techniques used by the wisdom traditions.

Some aspects of shamanic soul flight are cognate with what modern parapsychology calls "remote viewing" — a non-local technique where an individual can perceive phenomena beyond the range of ordinary vision. Kowalewski (2004, 66) states that trackers in hunter-gatherer societies have an ability to "extend their energy body beyond their physical body and see the creature's tracks somewhere else far away. Modern Amazonian trackers have amazed researchers by their seeming extra-sensory ability to find game" (Lamb 1971, 64). Kowalewski points out that tracking incorporates brain activity (2004, 65), which is synonymous with shamanic cortical integration. It is tempting here to know to what extent ancestral tracking may have influenced early shamanistic practices and visa versa. Such similarities between tracking and shamanic practices may support why both may trigger altered states of consciousness and psychological metamorphosis (Kowalewski 2004, 71). Both indigenous tracking and shamanic soul flight support modern consciousness research that "the psyche has no real boundaries” and may be a part of an all encompassing and infinite field of consciousness as purported by Laszlo's Akashic Field (Grof 1993, 202).
Call me a grinch but I don't believe that dropping a couple of tabs of acid - or mystic 'wisdom traditions' equivalent such as peyote - actually lets you track dinner by ESP. It is somewhat unsettling that researchers seem to be taking "the soul" as a fact, but then universities are strange places.

The two authors go on to state that -
If altered states of consciousness have informed human evolution, the question arises as to what extent may non-locality influence future human evolution? The rise in consciousness studies pioneered by Grof, Laszlo, Russell, Dossey, and others have challenged the prevailing materialistic paradigm of science. Laszlo and Currivan (2008) advance a theory of biological and social coherency that reconsecrates the unity of life and levels of co-operation found throughout nature and human societies. The current interest in the non-local mind fits into the model of coherency. Dossey (1999) explains at length the necessity for future medicine to include mind–body and non-local techniques that foster healing. He states that at present there is a collective denial by science of the non-local nature of consciousness, designating it as "the hard problem" (Dossey 1999, 207).
Quite so, science - like Australian law - has difficulty with the claim that you can have a two way chat with the dead via a valve radio, that there is reincarnation (a salient claim by Grof, otherwise distinguished by a faith in astrology), that people can have precognition, can 'remotely view' something in another continent (ie psychically visit a distant place, in this or 'another' universe) or could remotely heal the inaccessible victims trapped under World Trade Center on 9/11. It is "hard" for me to take such claims seriously.

"The current interest in the non-local mind fits into" the "exteriorisation" (aka astral projection) model articulated by the colourful L Ron Hubbard and precursors such as Aleister Crowley. It works, apparently, for Tom Cruise, but not for me.

Saniotis & Henneberg are unabashed by what Dossey damns as "collective denial".
Dossey indicates that the future will herald what he coins as Era III medicine. In his vision, Era III medicine will fully recognize non-locality as characterized by distance healing, intercessory prayer, and transpersonal imagery. Thus, Era III medicine will include a repertoire of techniques reminiscent of shamanism such as soul flight, as discussed earlier.
Intercessory prayer and remote healing? Oh dear. The authors appear to believe that distance healing will heal ailing mice and presumably other subjects.

One of my mordant readers has, in the past, responded to such belief by asking why doesn't intercessory prayer, transpersonal imagery or distance healing make missing limbs grow back or cause the blind to see? Is it because amputees (or their loved ones) simply do not want to get a spanking new leg, arm, foot or hand? Is the failure to get a nice new eye attributable to an unavailability of some mescalin? Somehow I don't think so. Is it because they failed to buy The Secret and other 'blame the victim' texts? Because they questioned the pious claim that dowsing proves "the mind's ability to communicate information from across the solar system is much faster than the speed of light".

In my crueller moments I've responded by asking why "non-locality" supposedly works only for good, not bad. If we have distance healing - making the mice better through magic hands and positive thoughts - why isn't there distance harming (oops, I have bad thoughts about the little critters - or the editor of World Futures - from several thousand kilometres away and the targets of my non-local wrath start to ail)? In the old days that was referred to as witchcraft or sheet utter humbug. Now it is non-locality and rewarded in a peer-reviewed journal, that boasts "peer review integrity" - "All articles published in this journal have undergone rigorous editorial screening and peer review". Uh huh.

If we accept some of the more bizarre claims made by enthusiasts for "quantum holism" (aka quantum mysticism) about remote viewing, the undead and telekinesis, what are the implications for criminal and civil law? Defendants getting off on the basis that evidence was removed or added by another party via "soul flight"? "Your honour, the ghost - rather than the butler - did it"?

The supposed "challenge" to the "prevailing materialistic paradigm of science" by people such as Grof, Laszlo & Co is not profound and is unlikely to have an impact on the practice of law in Australia. Don't rush to blame the "soul flight" or what Laszlo characterised as "entities that are no longer living in the familiar form in this world but are alive nonetheless" if things go wrong ... courts aren't going to accept testimony from ghosts or the undead and use of a pseudo-scientific litany will not make them real.

11 March 2011

Digital Identities

Reading Clare Sullivan's 181 page ebook Digital identity: an emerging legal concept, a discussion of "digital identity in a transactional context under a national identity scheme", contrasting the right to identity to the right to privacy in the context of a national identity scheme, and defining identity theft and its consequences. Sullivan suggests that
Under a national identity scheme, being asked to provide 'ID' will become as commonplace as being asked one’s name, and the concept of identity will become embedded in processes essential to the national economic and social order.

The analysis reveals the emergence of a new legal concept of identity. This emergent concept and the associated individual rights, including the right to identity, potentially change the legal and commercial landscape.
Possibly not.

Sullivan's preface states that -
From the outset, the United Kingdom Identity Cards Bill was controversial. The Bill was defeated on five occasions in the House of Lords before a compromise was reached which enabled the Bill to be passed two years after its introduction. The Conservatives and Liberal Democrats still opposed the Cards Act 2006 (UK) ('Identity Cards Act') and the National Identity Scheme ('NIS') it established, and the Conservatives announced that they would repeal the legislation if they won the 2010 election.

The intention expressed at the time the legislation was enacted was that the NIS would eventually be compulsory for all United Kingdom residents over 16 years of age. Former Home Secretary Charles Clarke reportedly said the scheme could be made compulsory when around 80 percent of the population was registered. The scheme was to be used by both the public and private sectors for transactions.

From 30 November 2009, the scheme was phased-in on a voluntary basis for British citizens, with full roll-out planned for 2012. From 2011/12 registration on the National Identity Register (‘NIR’) was to be compulsory for all British citizens over the age of 16 years applying for a passport, with a view to registration becoming general in 2017. As part of their 2010 election campaign, the Liberal Democrats promised to discontinue the NIS. Consequently, following the formation of the Conservative-Liberal Democrat Coalition government later that year, the Identity Documents Bill 2010 (UK) (‘Identity Documents Bill’) was introduced into Parliament on 26 May 2010. The Bill cancels the national ID card for British residents and the Identification Card for European Economic Area nationals, and provides for destruction of the NIR. The identity card for foreign nationals will remain.

Significantly, clause 7 of the Identity Documents Bill also defines 'identity document' as including a passport and a driving license and re-enacts the data-sharing provisions in the Identity Cards Act to verify information provided in connection with passport applications. At the time of writing, the Bill has not been enacted so the NIS still exists but scheme operations and the national roll out are suspended pending consideration of the Bill by the British Parliament. Although it is likely that the Bill will be enacted, the essential features of the NIS and its objectives are typical of a modern national identity scheme. For that reason the NIS is used as the basis for discussion in this book. Digital identity schemes around the world have the same basic features as the NIS. The NIS is the model for the new national identity scheme being introduced into India for example, and the scheme proposed for Australia in 2007 was also based on the United Kingdom scheme. Developments in Australia have followed a similar path to those in the United Kingdom. In 2007, a Bill modelled on the Identity Cards Act was introduced by the federal Liberal and National Party Coalition government in Australia. The Human Services (Enhanced Service Delivery) Bill 2007 (Cth) (‘Access Card Bill’) closely followed the United Kingdom legislation, though its purposes were expressed less broadly, to ‘reduce fraud’ and improve efficiency in delivery of health and social services benefits. The Access Card Bill clearly established a system of national identity registration and attempts by the then government to present it otherwise can be explained on the basis of political expediency, considering the debate caused by the Australia Card decades earlier.

A national identity card has long been a controversial issue in Australia. The proposed Australia Card legislation introduced into Federal Parliament in the 1980s proved to be extremely controversial and did not proceed in the face of public outcry. Similarly, when the then Prime Minister again floated the idea of a national identity card in 2006, it sparked public debate which subsided when it became apparent that legislation was not imminent.

Consequently, the introduction of the Access Card Bill in 2007 surprised many observers who assumed that it would not be introduced into Parliament until after the federal election. The Bill was introduced with comparatively little publicity, and after a very short period of public consultation. Its passage was not smooth, largely because of the Bill’s rushed introduction into Parliament, its obvious similarities to the failed Australia Card proposal, and concerns that the government was attempting to bring in a national identity card by stealth. On 15 March 2007, the Bill was delayed following a Senate Inquiry which recommended that the legislation be amended to include all details of the proposed scheme.

Like the Identity Cards Act in the United Kingdom, the Access Card Bill established the framework for the new Access Card Scheme ('ACS'), and operational details including security and privacy aspects were to be covered in subsequent legislation. The Senate Inquiry recommended that the full legislative package be presented in one Bill, so that the entire scheme and all its consequences could be assessed. The government agreed, and the new Bill was to be introduced into Parliament in 2007, with a view to beginning the scheme in April 2008 but the Federal election late in 2007 intervened. The subsequent change of government led to the Access Card Bill being shelved, as the new Labour government pursued different policy and funding objectives.

However, this does not necessarily mean that plans for a national identity scheme have been abandoned by either of the major political parties in Australia. In August 2010, Joe Hockey, the Minister for Human Services in 2007, said that failure to get the access card introduced was his biggest regret in politics. When asked if he would try to re-introduce it, Mr Hockey replied ‘absolutely,’ providing that the IT systems across government agencies could be consolidated.

In Australia, an identity scheme can be established by linking government databases and through sharing of information between federal and State governments, and that is now well underway.

Eventually, however, there will be a need to rationalise that information and to authenticate it; and that can only be done though a scheme of national identity registration. That may be done by introducing a scheme like the NIS. Alternatively, it may be done with less fanfare, on a gradual, incremental basis. A new scheme is likely to be established incrementally and more subtly than was the case with the ACS (and the NIS) and there are indications that the foundations are being laid. In June 2010, for example, the Coalition supported the Labour government's proposal to compulsorily assign (with some minor exceptions) a 16 digit individual identifier to every Australian resident on the Medicare database on 1 July 2010.

The tenor of this book therefore is that a national identity scheme will be fully established in coming years in Australia and indeed in most other countries, including the United Kingdom. As automated transactions become the norm, transactional identity must be established using a referent standard and that referent standard must necessarily be a database, preferably, an official national identity database. The official record may be a central register or one or more government databases. In the future, it may take the form of secure linked data from official sources on the Semantic Web.

Irrespective of how it is packaged, systematic identity registration must be done on a national basis. The information which is recorded as a result of that process will then be regarded as an individual's identity. It is that consequence, and its inevitability, which prompted this book.

Different Pleasures

David Tanovich in 'Criminalizing Sex At The Margins' 74 Criminal Reports (6th) (2010) 86-95 [PDF] comments that -
Legal constructions of sexuality often abnegate the ineffable and pluralistic nature of pleasure. By dismissing the aberrant as violence, the law strips the experience of its humanity and social worth. In understanding S/M sex, we must first hold back this reductive strategy and acknowledge how and why S/M sex may invoke certain emotive responses. S/M undermines desire’s presumed autonomy, shows the constructed nature of sexuality, and disputes the romantic myth of sex as natural and spontaneous. What may be unnerving about S/M is its unabashed cynicism. S/M makes clear—it is indeed central to its praxis—that power and social presumptions govern intimate relationships. The designation of S/M sex as only violence speaks to a discomfort with this bluntness. The criminalization of S/M pleasure may underscore the threat of this honesty.
Tanovich notes that -
Notwithstanding Pierre Trudeau’s famous quote from 1967 that the "state has no business in the bedrooms of the nation", adults who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment. This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A. (J.).
For example
While tremendous strides have been made in addressing sexual orientation discrimination in Canada, including the recognition and celebration of same-sex marriage, gay men still face the threat of being arrested for having anal sex. While consensual sex between men was decriminalized in 1969 with the repeal of our sodomy law,4 anal intercourse with an individual who is not their married spouse or who is under the age of eighteen or which occurs in the presence of more than two people remains a crime in our Criminal Code. In other words, if three men are in a bedroom during which anal sex is occurring, they are, according to section 159(3)(a), committing a crime. While it is true that section 159 was declared unconstitutional in 1995 in Ontario based on age discrimination, not every province has ruled on the issue. In Alberta, for example, prosecutors were not conceding the unconstitutionality of section 159 as late as 2002. Moreover, even after 1995 in Ontario, the police continued to charge individuals with anal intercourse.

Perhaps most significantly, the very fact that the offence remains in the Code serves to further stigmize and marginalize the gay community in Canada. One individual who was unjustly arrested for anal intercourse brought a civil action seeking to force Parliament to remove section 159 from the Code in 2001. His action failed, as the Court held that the government could not be held liable in tort for failing to amend a statute. And so, homosexuality remains, at the very least, symbolically criminalized in Canada.

08 March 2011

Disability support

The Productivity Commission - drier than the Sahara but with fewer camels - has released its draft report on Disability Support.

The Commission argues, refreshingly, that
The current disability support system is underfunded, unfair, fragmented, and inefficient, and gives people with a disability little choice and no certainty of access to appropriate supports.
It responds by calling for a new national scheme (the National Disability Insurance Scheme or NDIS, administered by the National Disability Insurance Agency - "a federal agency created by, and reporting to, all Australian governments") that would provide insurance cover for all Australians in the event of significant disability and fund long-term high quality care and support (but not income replacement) for around 360 000 people.
While Australians would pay more taxes (or governments would cut other spending), people would know that if they or their family acquired a significant disability, they would have a properly financed and cohesive system to support them.
The Commission envisages the NDIS as having -
several other important roles, including mustering community resources, providing information to people, quality assurance, diffusion of best practice among providers, and breaking down stereotypes.
The fine print is more traditional, with the Commission commenting that -
the needs of people with a disability and their carers would be assessed rigorously by NDIS-appointed local assessors, with careful management to avoid assessment 'softness' or 'hardness'. Assessment would lead to individualised support packages. Strong governance would be necessary to contain costs and ensure efficiency.
The National Disability Insurance Agency -
would have strong governance arrangements, with an independent board, an advisory council of key stakeholders, clear guidelines to ensure a sustainable scheme and with legislation that protected the scheme from political influences.
The Commission emphasises choice -
People would have much more choice in the NDIS. Based on their needs assessment and their individualised support package, they would be able to choose their own service providers, ask a disability support organisation (an intermediary) to assemble the best package on their behalf, cash out their funding allocation and direct the funding to areas of need they think are most important. There would have to be some controls over the latter to ensure probity and good outcomes. People would need support to adopt this option and, given overseas experience, it would take some time for many to use it.

The NDIS would cover the same range of supports currently provided by specialist providers, but would give people more opportunities to choose mainstream services and would encourage the development of innovative approaches to support.
How much will the glittering future cost? The Commission estimates that in 2009-10 the national, state and territory governments provided around $6.2bn funding to the disability sector.
The Commission's preliminary estimates suggest that the amount needed to provide people with the necessary supports would be an additional $6.3 billion, roughly equal to current funding. Accordingly, the real cost of the NDIS would be around $6.3 billion per annum. That could be funded through a combination of cuts in existing lower-priority expenditure and tax increases. ... The Commission is proposing that the Australian Government take responsibility for funding the entire needs of the NDIS. This is because the Australian Government can raise taxes more sustainably and with fewer efficiency losses than state and territory governments.
The fiscal magic pudding can be resliced through reduction of state and territory taxes (unsurprisingly the Commission's preferred option) or by transferring revenue to the Australian Government.

The Australian Government would fund the NDIS through payments from consolidated revenue into a 'National Disability Insurance Premium Fund', using an agreed formula entrenched in legislation. The scheme would commence in early 2014 ("with a full scale rollout in a particular region in Australia") and extend to all Australia in 2015, progressively expanding to "cover all relevant people with a disability, commencing with all new cases of significant disability and some of the groups most disadvantaged by current arrangements".

In the oh it is scary basket the Commission flicks responsibility for funding of lifetime support to the state/territory governments -
A separate scheme is needed for people requiring lifetime care and support for catastrophic injuries - such as major brain or spinal cord injuries. Currently, many Australians get poor care and support when they experience such injuries because they cannot find an at-fault party to sue. A no-fault national injury insurance scheme (NIIS), comprising a federation of individual state and territory schemes, would provide fully-funded care and support for all cases of catastrophic injury. It would draw on the best schemes currently operating around Australia. State and territory governments would be the major driver of this national reform.