15 October 2011


Smallbone v New South Wales Bar Association [2011] FCA 1145 involves an application by barrister David Smallbone under s 98 of the Privacy Act 1988 (Cth) for access to information collected in relation to his application to be appointed as a NSW Senior Counsel.

The Bar Association invited applications earlier this year for appointment to silk, ie elite barristetrs. In connection with those applications the Association collected personal information, including opinions relating to Smallbone, such as comments from the barristers and solicitors Consultation Group and the Judicial Consultation Group (ie judges and judicial officers). The Court noted that 579 people were consulted in relation to all applications. 458 persons responded: 156 judicial officers or retired judicial officers, 169 senior counsel, 71 junior counsel and 62 solicitors. Some of those who responded provided information in relation to the applicant.

Smallbone claimed a right of access to the information that concerned him; the Association notified Smallbone that it refused to provide such access.

In the ensuing litigation both the Association and Smallbone agreed that the former is an 'organisation' within the meaning of section 6C(1) of the Act. There was no dispute that collection, use and destruction of information relating to the appointment of Senior Counsel is governed by the National Privacy Principles (NPPs) in Schedule 3 of the Act. The Association is not covered by a formal Privacy Code under the Act.

NPP 6.1 provides that information holding 'personal information' about an individual must - subject to some exceptions - provide that person with access to the information if requested by the individual. Smallbone had made such a request. The issue considered by the Federal Court was the extent to which provisions in NPP 6.1 limit the right of access.

Yates J noted that an organisation's provision of access to personal information is bounded by exceptions, notably NPP 6.1(c) which covers circumstances where "providing access would have an unreasonable impact upon the privacy of other individuals".

Smallbone argued that providing access to all of the information, including the identity of people who had supplied that information, would not have an unreasonable impact on the privacy of other individuals. In contrast the Association argued that providing access to any of that information would have an unreasonable impact upon the privacy of other individuals: NPP 6.1(c) was to be read as providing an absolute exemption to provision of access.

Consistent with the spirit of the legislation the Court indicated that the assessment of an "unreasonable impact" involved having regard to all circumstances of the particular case. Yates J referred to C v Insurance Company [2006] PrivCmrA 3, in which the Privacy Commissioner identified considerations regarding whether access to documents containing the personal information of third parties would have an unreasonable impact on the privacy of those individuals. They included -
• whether the individual would expect that his or her information would be disclosed to a third party, including whether an assurance of confidentiality was provided.

• the extent of the impact on the individual’s privacy.

• whether any public interest reasons for providing access to the information outweigh any expectation of confidentiality.

• whether masking the identifying details of the third parties would sufficiently protect the privacy of these individuals.
The Court stated that -
Those considerations are helpful indicators of some of the considerations that might be involved in a particular evaluation of the application of NPP 6.1(c). They are not, however, the only relevant considerations. Another relevant consideration is the nature of the information that is held by the organisation and the form in which that information is held. ... The evidence makes clear that members of the Consultation Group and the Judicial Consultation Group were invited to provide information on all applicants for appointment as Senior Counsel in 2011 on the express assurance that all information received in response to that invitation would be treated as confidential and made only available to the Selection Committee and its secretariat.
The Court found that Smallbone was entitled to access the personal information that the Bar Association collected in relation to his application. However the Association is not obliged to provide access to information that discloses -
a) the identify of persons who are members of the consultation groups who have provided information to the Respondent and, in the case of members of the consultation groups who are judicial officers, the identity of the court to which each member has been appointed, if it is a court other than the Supreme Court of New South Wales; or

b) the identity of or information about other persons who are applicants for appointment as Senior Counsel in 2011 or who have provided information about persons who are applicants for appointment as Senior Counsel in 2011.
Given the "circumstances in which the information was sought and the circumstances in which it came to be provided, as well as the nature of the information itself" access to that information would have an unreasonable impact on the privacy of Judicial Consultation Group and Consultation Group members. The small number of responses from "some judicial officers from some identified courts" mean that "disclosure of information by reference to those courts will have an unreasonable impact upon the privacy of other individuals, being the judicial officers of those courts who have provided information" about Smallbone.

Provision of access to documents that feature the identity of and information about other applicants for appointment will have an unreasonable impact upon the privacy of those individuals.

The outcome is that Smallbone has access to the documents except for the exceptions and that the Association is restrained from making any adverse determination of his application until eight days after his inspection of the records.

Safe Harbour

The Australian Attorney-General has released a short discussion paper on potential changes to the safe harbour provisions of the Copyright Act 1968 (Cth). The paper precedes a broader review of the Act, with terms of reference to be released before the end of the year.

The paper states that the Act was amended in 2006 "to provide a scheme offering legal incentives for Carriage Service Providers (CSPs) to cooperate with copyright owners in deterring copyright infringement on their networks" -
The scheme is commonly referred to as the ‘safe harbour scheme’ and limits the remedies available against CSPs for copyright infringements that take place through their systems and networks that they do not control, initiate or direct.

Application of the safe harbour scheme is not automatic. In order for a CSP to enjoy the protection provided by the safe harbour scheme, certain conditions applicable to the particular category of activity provided by the CSP must be satisfied .

The scheme covers the following four categories of activities that may be provided by CSPs:
• Category A – acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material
• Category B – caching through an automatic process
• Category C – storing copyright material on their systems or networks, and
• Category D – referring users to an online location (for example, linking).
. At the moment tthe safe harbour scheme only applies to CSPs as defined under the Telecommunications Act 1997 (Cth) in what was thought to be "a suitable and technologically neutral term". A CSP is an entity that supplies a listed carriage service to the public using a network unit owned by one or more carriers, or a network unit that has a nominated carrier declaration. That entity must be operating primarily as a provider of network access to the public.

The paper notes that the definition poses challenges in relation to application to the Copyright Act.

Entities providing services that fall within the four categories cannot rely on the safe harbour unless they provide network access ‘to the public’. Some commercial and other entities operate servers to provide internet access for corporate clients, customers, students and other users, but not to ‘the public’. These entities activities fall within the Category A activity, but they are excluded from the definition of a CSP. Online search engines, bulletin board operators and online vendors conduct Category D activities but are excluded from the definition because they are not ‘providers of network access’ and therefore not eligible for the safe harbour. As a result, these entities face similar liability issues to CSPs in relation to infringements occurring through the services they provide.

The paper indicates that -
The Australian safe harbour scheme was implemented pursuant to the Australia-United States Free Trade Agreement. A number of other countries, in particular, Singapore and Korea, have also implemented safe harbour schemes that have allowed a broad range of entities in those countries to take advantage of the limitation on remedies available for copyright infringement occurring on their networks.

In the United States, the courts have determined that, for the purposes of the US scheme, the term ‘service provider’ includes an internet service provider acting as a conduit for peer-to-peer file sharing programs , providers of the software and operators for instant messaging services , internet service providers that provide subscribers with news groups and online vendors . This extends the application of the scheme beyond entities responsible merely for providing the infrastructure for the internet.

The Singaporean safe harbour scheme closely resembles the US safe harbour scheme. Both schemes provide a two-tiered definition for ‘network service provider’ and ‘service provider’ respectively, which include providers of online services or operators of facilities providing online services or network access. However, in circumstances where entities are simply involved in transferring information which is not stored on the provider’s networks, Singapore provides a more limited definition of ‘network service provider’ to be specific to the conditions to be satisfied for this activity in order for the entity to enjoy limited liability under the safe harbour scheme.

The Korean copyright law contains a safe harbour scheme for entities that provide network access and online services. The Korean definition of ‘online service provider’ appears to be broader in scope than the relevant definitions provided by the US and Singapore. The definition includes persons providing others with services that reproduce or interactively transmit works, etc. through information and telecommunications networks (which includes information and communications systems, under which telecommunications infrastructure are employed, or the telecommunications infrastructure, computers, and software are used together for gathering, storage, processing, searching, transmission and reception of information).

It is apparent that the current definition of ‘carriage service provider’ gives the Australian scheme a more restricted scope than equivalent safe harbour schemes in the US, Singapore and Korea. The approach these countries have taken in implementing the safe harbour scheme has been taken into consideration in developing the proposal to amend the Australian scheme.
As a result the Government proposes that the scope of safe harbour scheme in the Copyright Act be amended to cover a broader range of service providers.

Amendment would involve an alternative term (‘service provider’, with a definition that is "simple and effective, technologically neutral, and consistent with Australia’s international obligations") to replace ‘carriage service provider’ for the purposes of the safe harbour scheme. That new term would cover internet service providers and operators of online services, irrespective of whether they provide a carriage service to the public. The expectation is that it would be consistent with the Australia-United States Free Trade Agreement and comparable international approaches.

The amendment is "not intended to alter the existing balance of the scheme", with eligibility continuing to be" determined by optional adherence to the conditions prescribed for each of the four separate categories of CSP activity".

In describing the broader review the Attorney-General quoted Heraclitus ("nothing endures but change") and stated that -
Earlier this year I said that I intended to provide the Australian Law Reform Commission (ALRC) with a reference on copyright. Today, I am pleased to provide more information about the terms of reference for this inquiry.

The inquiry will seek a review of whether the exceptions in the Copyright Act are adequate and appropriate in the digital environment.Currently the Copyright Act has general exceptions to the rules regarding infringement of copyright. These include: fair dealing, the 10 per cent rule and private copying when format-shifting, time-shifting or for special purposes.

There are also specific exceptions such as allowing the making of a copy of a computer program resulting from the process of normal use of the program or for back-up purposes. However, in a fast changing, technologically driven world it is vital for us to see whether existing statute is appropriate and whether it can be improved.

My Department is in the process of finalising proposed terms of reference in consultation with the Australian Law Reform Commission. I intend to invite stakeholders to submit comments on the proposed terms before they are finalised and anticipate releasing them for comment before the end of the year.
There has been no indication that the ALRC, the target of significant cutbacks over several years, will receive additional resources.

Interests, Rights, Identities

'Sexual Rights and Disability' by Ezio Di Nucci in 37 Journal of Medical Ethics (2011) 158-161 argues against Appel's proposal -
that there is a fundamental human right to sexual pleasure, and that therefore the sexual pleasure of severely disabled people should be publicly funded — by thereby partially legalising prostitution. An alternative is proposed that does not need to pose a new positive human right; does not need public funding; does not need the legalisation of prostitution; and that would offer a better experience to the severely disabled: charitable non-profit organisations whose members would voluntarily and freely provide sexual pleasure to the severely disabled.
Di Nucci states that -
Appel [in 'Sex rights for the disabled?' 36 Journal of Medical Ethics (2010) 152-154] has recently argued in favour of sexual rights for the severely disabled:
For too long, our society has viewed these unfortunate individuals as non-sexual beings, adopting rules in matters such as consent and reimbursement that may serve the interests of able-bodied society, but do a profound disservice when applied to those with disabilities. If we are to overcome these obstacles, and to live in a more just civilization, we must begin to see sexual pleasure as a fundamental right that should be available to all.
Appel proposes that, in order for such right to be upheld, sexual services for the disabled be publicly funded:
we should seriously consider including sexual surrogacy for the disabled in the basket of services that we provide. Already, we have made the choice to pay for other purely social and cosmetic services to help unfortunate individuals lead more pleasurable and productive lives - such as breast reconstruction for mastectomy patients and plastic surgery for children born with cleft lips... Sexual pleasure ought not be viewed any differently. Most western healthcare systems acknowledge this, to some degree, paying for medications to treat erectile dysfunction in men and subsidising birth control pills for women... Any notion of healthcare broad enough to encompass cosmetic surgery ought to be generous enough to include funding for the sexual pleasure of the disabled... [which] should be covered by all public health systems and private insurance plans.
Here I present a better argument than Appel's to address his concerns about the sexual satisfaction of the severely disabled. I also believe that the sexual interests and needs of the severely disabled ought to be met. But I have three worries with Appel's strategy:
1) Should we meet the sexual interests of the disabled by introducing a right to sexual pleasure? A right that Appel describes as 'fundamental', perhaps hinting to the stronger view that it should be an inalienable human right?

2) Should we meet the sexual interests of the disabled by appeal to the public purse? Sexual satisfaction for the severely disabled, according to Appel, "should be covered by all public health systems and private insurance plans".

3) Should we meet the sexual interests of the disabled by a restricted legalization of prostitution, as Appel argues for? If sexual pleasure is a fundamental right, as this author believes, then jurisdictions that prohibit prostitution should carve out narrow exceptions for individuals whose physical or mental disabilities make sexual relationships with non-compensated adults either impossible or highly unlikely.
Di Nucci goes on to comment that -
I agree with Appel that there is a problem, and that this is an important moral problem: there are individuals with legitimate interests which find it very difficult if not impossible to satisfy those legitimate interests without external assistance. That is precisely the framework within which society's intervention is called for. It is exactly within this framework that people routinely call for ambulances or the police: their own or someone else's legitimate interests in not being mugged, stalked, raped, or killed – in the case of the police; their own or someone's else legitimate interests in not bleeding to death, or lose a limb, or die of an heart attack – in the case of ambulances. A citizen has a legitimate interest that she wants upheld, so she calls in the state for help. So far, so good. So should there be a public service that severely disabled people (or more likely someone on their behalf) can call upon for the satisfaction of their legitimate sexual interests?

The 'legitimate interests satisfaction' framework that I have developed above does not just apply to calls to the police or the ambulance service. It also applies to pizza deliveries. A citizen has a legitimate interest that she wants upheld – she wants a pizza without having to leave the house – so she calls pizza delivery. Now it might be argued that if pizza deliveries had not proved to be a legal and commercially successful enterprise (maybe because of ancient prejudices like those against prostitution), then the state should come in and guarantee pizza delivery by public funding. But, more likely, the pizza delivery example shows that it is not enough that citizens – any citizen, more or less vulnerable – have legitimate interests for those interests to need, thereby, to be met with legislation and public funds.

This is indeed why Appel must talk not just of legitimate interests, but of rights. But the problem, with 'rights' talk in this context, is, firstly, in having to establish whether sexual services are more like the ambulance service and the police rather than pizza delivery. Secondly, we must either grant everybody the right to sexual satisfaction, or we must argue that severely disabled people have, in virtue of their increased difficulty to satisfy their sexual interests, a right to sexual services that non-severely disabled people do not have. Let me emphasize that these two options are genuinely alternative: namely, the latter is incompatible with the former. If sexual satisfaction (where physically possible, that is) is a human right, then severely disabled people do not have more of a right to it than everybody else.


The modish 'Intimate Pedagogy: The Practice of Embodiment in University Classrooms' by Katie Pryal in 1(2) Assuming Gender (2010) 62-77 is concerned with "the intimacy of university classrooms, especially in the context of gender, sex, and sexuality"
I suggest that students and professors constantly battle the intimacy that arises in pedagogical relationships. Despite our best efforts, these moments of intimacy intrude upon students' relationships with one another and professors' relationships with students. These intrusions are often unexpected and uncontrollable, and are inextricably tied to gender and sexuality. These moments when the facade breaks down, moments of embodiment, are when the greatest teaching can occur. In order to be great professors, we must attain a level of intimacy with our students. Intimacy, for the purposes of this article, means simply this: setting aside an assumed genderless, sexless professorial facade, and standing beside our students, embodied. In this article I build upon the work of pedagogical theorist Jonathan Alexander, putting forward the idea of a 'rhetoric of the body' to help understand the ways professorial bodies perform in the classroom. I then turn to the work of theorists bell hooks and Jane Gallop and their work on eros in the classroom, to discover connections between what I call embodiment – moments when professors lose the facade of a bodiless identity – eros, and pedagogy. Lastly, I take these ideas and examine a course in which I taught the U.S. Supreme Court opinion Lawrence v. Texas (2003), in which the Court declared anti-sodomy laws unconstitutional. In this course, content, pedagogy, intimacy, and embodiment came together in a practical demonstration of the theories I put forward here.
She comments that -
Quintilian claimed that the ideal public speaker is the ʻgood man speaking wellʼ, combining the unimpeachable ethics of the person with the excellent quality of the oration. Quintilianʼs words have also been used to describe the ideal professor. Feminist pedagogy, however, has revealed the weaknesses in Quintilian's simple approach: what it means to be ʻgoodʼ, and to speak ʻwellʼ is often tied to the physical identity of a speaker. Students, colleagues, and institutions often complain that female professors' voices are too high-pitched or too quiet. Rhetorical and professorial skill, then, is tied to body identity far more than dominant Cartesian philosophy would have us believe.

Pedagogical theorist Jonathan Alexander, in ʻTransgender Rhetorics: (Re)Composing Narratives of the Gendered Bodyʼ, hopes to show ʻhow transgender theories can inspire pedagogical methodsʼ, and help us understand ʻthe narration of gender as a social constructʼ. Alexander wishes ʻto approach a deceptively simple question – What is the story we tell about gender?ʼ. In response to this question, I would like to add others: who is it that tells this story? Why? And, how is it told – especially in the context of a university classroom? These are questions of power. Finally, I would like to ask: what are the consequences of these stories in a pedagogical setting? This is a question of ethics.

Alexander writes that his pedagogical method is ʻan approach to thinking about gender that is invigorating, critical, and insightful – one that opens up new vistas for students in considering the intersections among gender, the body, and the body politicʼ. Indeed, his description of the writing projects undertaken in his classroom appears invigorating, and the work produced by his students is often awe-inspiring. But we need to take his work a step further. Alexander hopes to provide an opportunity for his students to think about gender. But is thinking about gender enough? Feminist professor Patrocinio Schweickart admonishes: ʻFeminist criticism, we should remember, is a mode of praxis. The point is not merely to interpret literature in various ways; the point is to change the worldʼ.

I suggest readers need greater ethical engagement with the texts professors assign, and this engagement begins with the professor-student relationship.

The selection of material is indeed the first step in this engagement. In discussing why he presented transsexual narratives to students, Alexander explains, ʻtrans sites powerfully reveal gender as a social construction – as a narration that rhetorically, and politically, uses gender to maintain categories, roles, and knowledges that delimit and police our bodies and identitiesʼ. Cultural theorists readily recognize gender as a social and linguistic construction, but Alexander goes one step further, and associates, even equates, that construction with narrative, or storytelling. Alexander continues:
in examining the stories that trans activists tell about themselves, we witness the construction of counternarratives, alternative modes of identity construction, and a number of creative rhetorical moves that show how narratives of personal experience can be used to query a variety of personal and sociopolitical issuesʼ.
Alexander recognizes, however, the limitations of his project in the concluding section of his essay. He writes of his own doubts:
I am not sure that our narratives of gender swapping and transition were necessarily helping liberate participants from gender norms, even though I believe they offered us opportunities to explore useful insights. If anything, they revealed the extent to which gender is much more than a set of roles and rhetorical tropes; there is a rhetoric of the body that needs careful consideration as well.
Even as Alexander expresses uncertainty about the effectiveness of his pedagogy in the process of liberation ʻfrom gender normsʼ, he identifies a new project that he had not been aware of, one that provides fascinating new possibilities. Rather than functioning as a simple narrative that can be changed as the storyteller sees fit, the body is shaped by – and helps shape – a rhetoric beyond anyoneʼs control: by a ʻrhetoric of the bodyʼ that Alexander identifies. This rhetoric of the body is yet another place, along with language, where we may begin to ethically engage with knowledge and power in the classroom. Yet, in the academy we all (students and professors) ostensibly march around as disembodied minds waiting for enlightenment. There does not appear to be much room for discussion of rhetoric of the body because academia encourages students and professors – especially professors – to ignore our bodies altogether.
Not quite what's expected in the Australian Graduate Certificate in Tertiary Education (GCTE).

11 October 2011

Big data

Two perspectives on mapping.

From 'Government Aims to Build a 'Data Eye in the Sky'' by John Markoff in the NYT -
The most optimistic researchers believe that ... storehouses of 'big data' ["the vast resources of the Internet — Web searches and Twitter messages, Facebook and blog posts, the digital location trails generated by billions of cellphones"] will for the first time reveal sociological laws of human behavior — enabling them to predict political crises, revolutions and other forms of social and economic instability, just as physicists and chemists can predict natural phenomena.

“This is a significant step forward,” said Thomas Malone, the director of the Center for Collective Intelligence at the Massachusetts Institute of Technology. “We have vastly more detailed and richer kinds of data available as well as predictive algorithms to use, and that makes possible a kind of prediction that would have never been possible before.”

The government is showing interest in the idea. This summer a little-known intelligence agency began seeking ideas from academic social scientists and corporations for ways to automatically scan the Internet in 21 Latin American countries for “big data,” according to a research proposal being circulated by the agency. The three-year experiment, to begin in April, is being financed by the Intelligence Advanced Research Projects Activity, or Iarpa (pronounced eye-AR-puh), part of the office of the director of national intelligence.

The automated data collection system is to focus on patterns of communication, consumption and movement of populations. It will use publicly accessible data, including Web search queries, blog entries, Internet traffic flow, financial market indicators, traffic webcams and changes in Wikipedia entries.

It is intended to be an entirely automated system, a “data eye in the sky” without human intervention, according to the program proposal. The research would not be limited to political and economic events, but would also explore the ability to predict pandemics and other types of widespread contagion, something that has been pursued independently by civilian researchers and by companies like Google.

Some social scientists and advocates of privacy rights are deeply skeptical of the project, saying it evokes queasy memories of Total Information Awareness, a post-9/11 Pentagon program that proposed hunting for potential attackers by identifying patterns in vast collections of public and private data: telephone calling records, e-mail, travel data, visa and passport information, and credit card transactions.

“I have Total Information Awareness flashbacks when things like this happen,” said David Price, an anthropologist at St. Martin’s University in Lacey, Wash., who has written about cooperation between social scientists and intelligence agencies. “On the one hand it’s understandable for a nation-state to want to track things like the outbreak of a pandemic, but I have to wonder about the total automation of this and what productive will come of it.”

Iarpa officials declined to discuss the research program, saying they are prohibited from giving interviews until contract awards are made later this year.

A similar project by their military sister organization, the Defense Advanced Research Projects Agency, or Darpa, aims to automatically identify insurgent social networks in Afghanistan.

In its most recent budget proposal, the defense agency argues that its analysis can expose terrorist cells and other stateless groups by tracking their meetings, rehearsals and sharing of material and money transfers.
And in who'dathunkit territory, 'The Invisible Man: How the Sex Offender Registry Results in Social Death'(forthcoming in The Journal of Law and Social Deviance) by Elizabeth Megale argues - unoriginally - that
over-criminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele [sic] Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits which arise when over-criminalization exists, and further shows how these characteristics and traits are present with respect to the sex offender registry.

This Article offers critical insight into the relationship between over-criminalization and repressive control systems and concludes that over-criminalization exists when repressive governmental controls seize power and render non-existent informal social controls. It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.
Alas, Michele is a typo ... Megale hasn't discovered Foucault's long-lost scribbling sister.

Megale argues that the "characteristics of Overcriminalization" are invulnerability to restraint from other social institutions, extraordinary Power/Lack of Internal Restraint and Structured Interest. The Sex Offender Registry is Overcriminalization because the Registry is a Repressive Control System, it is invulnerable to restraint from other social institutions, it is part of a system of extraordinary power for suppressing deviance with a concomitant lack of internal restraint and has resulted from the high degree of political and economic interest in apprehending and processing sex offenders.

Megale concludes that as "a Result of the Registry, the Traits of Overcriminalization have Emerged": The registry is overly punitive and facilitates mass incarceration and the registry creates social stigma and causes social death.

International Citizenship?

The 94 page 'A New International Law of Citizenship' by Peter Spiro (forthcoming in the American Journal of International Law) asks -
Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.

That may now be changing on all levels. These continuities of space, identity, and nationality are eroding. The instability — which is explained, in part, by globalization and increased mobility — is generating intense scholarly attention to citizenship as an institution. The conditions of globalization are necessary, but not sufficient, to decouple citizenship status from other metrics of identity. Reframing citizenship status as an individual right is crucial to the shift. Insofar as citizenship is so framed, its delimitation can no longer turn on traditional membership criteria, many of which collide with other norms of both liberal democracy and international law.

The result may be a new international law of citizenship. Although international law has regulated nationality practice as a matter of conflict of laws, it has largely demurred from dictating to states the terms of their membership rules. That is now changing. Bars on gender discrimination in citizenship practice, as well as constraints on the termination of citizenship, are hardening. Recent developments point to the emergence of norms that require the extension of territorial birthright citizenship in some cases and that limit discretion concerning naturalization thresholds. International law may also come to protect an individual’s right to maintain multiple nationality. These and other elements of a new regime relating to citizenship practice are emerging through multiple channels of decentralized international lawmaking. Some are found in international human rights instruments; In recent years the treaty committees associated with these regimes have moved aggressively in applying treaty terms to citizenship practice. Regional institutions, especially those of Europe and the Americas, have been receptive to a rights conception of citizenship practice. State practice also points toward the new frame, the result of both horizontal and vertical pressures, including as applied by nonstate actors.

These trends reflect a reconceptualization of citizenship status, shifting from an identity to a rights frame. (The reconceptualization has reflected the shift away from the use of the term “nationality” to denote the formal tie between the individual and the state, and toward the now more appropriate use of “citizenship.”) It is still not possible, however, to speak generally of a “right to citizenship” (at least not one enforceable on particular states), and it remains difficult even to speak of a right to citizenship in particular cases. The trend in practice is not a concerted or broadly conscious one and would not satisfy traditional doctrinal standards for establishing customary law. Nevertheless, the shift is reflected in recent work of prominent political theorists, who are increasingly articulating a right to citizenship. This theoretical work supplies coherence to developments on the ground and may undergird the eventual hardening of an international law of citizenship. It is thus not too early to consider the contours of citizenship in a rights frame.

The emergence of an international law of citizenship has broad implications for the nature of the state. To the extent that an international right to citizenship status helps decouple citizenship from organic forms of community, the new law of citizenship could undermine the solidarities on which state capacities may depend. In other words, the unintended long-term result of situating citizenship practice in the realm of human rights may be to diminish the value of citizenship. As more individuals come to enjoy an entitlement to that status, citizenship may come to be worth less.

This is not to argue against efforts to advance an international law of citizenship. In the short and medium term, a right to citizenship will indirectly advance the protection of a range of other rights on national turf. The right to citizenship may serve a transitional purpose, cementing the protection of other rights through the still-vigorous institutional vehicle of the state. In the longer run, however, the right to citizenship may compound other forces that are eroding state power. This possibility points, in turn, to international law and institutions as the primary location for the protection of rights. Contrary to important recent scholarship, I do not believe that the development of stronger international human rights regimes will reinforce state power, in part because states will be less representative of organic community. The emergence of international citizenship law figures centrally to this critique.

Part I of this article describes what I call the early and middle eras of international law’s approach to citizenship practice. In the early period international law had little to say about nationality determinations. More precisely, international law did constrain state practice, but only insofar as state practice implicated the interests of other states, that is, as a matter of conflict of laws. The middle period, spanning the human rights revolution of the mid- and late-twentieth century, saw the advent of limited incursions on state discretion in the context of statelessness, gender equality, and denationalization. None of these constraints, however, significantly affected state capacity to define membership. Even today, many international law commentators characterize citizenship practice as a matter of sovereign power.

Part II sets out the contours of an international law of citizenship that does constrain national self-definition. This part highlights elements of citizenship practice that are moving into the orbit of international law. In contrast to developments in the early and middle eras, these new constraints affect the admissions component of citizenship practice and dictate to states — in a broadening range of situations — who is entitled to citizenship, either at birth or through naturalization. Moreover, to the extent that international law recognizes an individual right to maintain plural nationality in certain contexts, international law may further undermine state capacity to delimit themselves relative to other states.

Part III situates these developments in a theoretical framework and confronts their significance for the future of the state as well as for the mediation of the individual and the global. Liberal political theory has long vouched for, or has at least assumed, the possibility of community closure and exclusion, — which has typically translated into an acceptance of immigration controls and an insistence on minimal barriers to naturalization. As immigration, both legal and illegal, has swelled, the arguments for citizenship have moved to a rights frame. I accept this framing but question its putative instrumental purpose — namely, to buttress the liberal state. I argue, on the contrary, that a right to citizenship is made possible only by weakening the state as a location for identity. To the extent that this nexus supplies a liberal basis for maintaining state discretion in setting citizenship criteria, the position is overcome by other liberal values. In any event, attempts on the ground to resist expanding the right to citizenship are likely to fail.

“Nationality has no positive, immutable meaning,” the Harvard Research in International Law project (Harvard Research) concluded 1929. “On the contrary its meaning and import have changed with the changing character of states. ... It may acquire a new meaning in the future as the result of further changes in the character of human society and developments in international organization.” This observation has held true through the modern age, which has been characterized by the primacy of states, but it will hold no less true as that age enters its late phases.

09 October 2011

Coffee n cakes

From the fatuous PWC Cover To Cover: A Market Analysis of the Australian Book Industry [PDF] report for the national Department of Innovation, Industry, Science & Research -
Books are an enabler of creativity: they provide a means of connecting authors and content developers with readers, allowing for the dissemination and germination of ideas, across both space and time. The production, distribution and sale of books in Australia – in short, the country’s book industry – is thus an important enabler of Australia’s creative economy.

The market for books, however, is on the cusp of potentially paradigmatic change. Digitisation has provided new ways for consumers to produce, purchase and read books. It is also shifting the industry’s focus away from the production of a physical good (i.e. a print book) to the production of content (i.e. the prose composed by authors). This shift is encouraging a reconceptualisation of what constitutes a ‘book’ and where the boundaries should be drawn (if at all) between print and electronic books and apps, websites and other means of digital content delivery.

Furthermore, the market for books is increasingly a globalised one. Australians are buying more and more books online, as they are other retail goods. A bookstore in Sydney now has to compete with not only its rivals down the street, but also the likes of Amazon and Book Depository. These online giants are also challenging the business models of publishers, as the latter were traditionally the only source of imported books into Australia.

As a result of these factors, there is uncertainty about how Australia’s book industry will continue to contribute to the country’s creative potential. Recognising this, the Australian Government has established the Book Industry Strategy Group (BISG). Comprising of representatives from across the book industry supply chain, the BISG is tasked with developing “a comprehensive strategy for securing Australia’s place in the emerging digital book market, while making the Australian book industry more efficient and globally competitive.”

To support the BISG in achieving this goal, the Department of Innovation, Industry, Science and Research (DIISR) commissioned PwC Australia (PwC) to undertake a detailed study of the Australian book industry. The purpose of this study is to provide the BISG with a foundation of evidence about:
• the current and historic performance of the Australian book industry, and expectations about its future potential
• the competitiveness of the book industry supply chain (taking into consideration such factors as online retailing, investment and innovation, and exports), and
• traditional business models, how these have changed and are changing in the new digital environment, and options for improving business models in the Australian context
The study is primarily informed by a comprehensive desktop review of publicly available and confidential data. It also draws on the findings of a consumer survey of 1,000 Australians, commissioned specifically for the purposes of the study. The key findings of the study are outlined below.

Industry size and potential
• We estimate the total value of books sold in Australia during 2010 was $2.3 billion. Trade book sales are estimated to have been worth $1.5 billion and educational book sales $820 million.
• Online book sales are estimated to have been worth $280 million in 2010, or 12% of the total book market. According to a survey of 1,000 Australians, 53 per cent of books purchased online in 2010 were bought from overseas online booksellers.
• Adjusted for inflation, the total value of books sold in Australia increased by an annual average of 1.1% from 2001 to 2010. Relative to other retail industries, the Australian book industry underperformed over the past decade. It performed more favourably, however, when compared against other creative industries in Australia and overseas book industries.
• Australians purchased approximately $35 million worth of eBooks in 2010, which is equal to 1.5% of the total value of book sales for that year. The eBook market in Australia is projected to reach between $150 million and $700 million in 2014, representing between 6% and 24% of total estimated book sales.
Industry competitiveness and global opportunities
• The available evidence suggests that Australian book publishers are reasonably efficient and competitive relative to their international peers. The competitiveness of Australia’s book printers is impeded by high input costs, under-utilisation of printing capacity, and the strong Australian Dollar.
• Distribution is widely seen as impeding the competitiveness of the Australian book industry. Fragmentation and a lack of agreed standards are seen as they key problems limiting the efficiency of Australia’s book distribution system.
• Lengthy delivery times and insufficient availability of eBook titles are seen as impeding the competitiveness of Australia’s booksellers (‘bricks and mortar’ and online).
• The available evidence suggests that overseas online booksellers are generally able to sell books published overseas at prices (including delivery) that are cheaper than those charged by Australian online booksellers. The price competitiveness of Australian booksellers is affected by the GST, the exchange rate, wholesale book prices, and postage costs.
• Our initial analysis suggests that an Australian business posting a book-like parcel to an Australian address would pay approximately 90 per cent more than a British business would to post the same package to the same address.
• Opportunities from online retailing include greater market penetration, reduced costs and (for authors) more viable self-publishing options. Online retailing does have the potential, however, to marginalise elements of the book industry, increase competitive pressures on booksellers, and challenge the primary business model of trade book publishers.
• Australia’s English-language advantage and its existing trade links with the emerging economies of China and India provide opportunities for greater exports. Publishers could aim to overcome the ‘tyranny of distance’ in market development by establishing a common promotional mechanism.
• Existing industry structures, the novelty of the eBook market and a lack of a mechanism to encourage and enable industry collaboration are seen as key factors impeding investment and innovation in the book industry.
Business models
• As new supply chains emerge – particularly around the delivery of print books via online overseas booksellers and eBooks – pressures will increase on traditional business models – primarily ‘bricks and mortar’ booksellers, printers and print book distributors.
• To support the development of alternative business models and ensure the sustainability of the book industry, Australia’s book distribution system needs to be improved. This could be achieved by consolidating print distribution, establishing an industry body tasked with improving supply chain efficiency, and establishing an industry- owned eBook wholesaler.
• Options to improve business models for publishers could involve entering into international agreements to share global rights, competing directly for global rights, and controlling costs through centralisation. Experimentation will remain a priority for book publishers.
• Consolidation and embracing print on demand offer means of improving the competitiveness of Australia’s book printers.
• Booksellers could seek to mitigate a strong Australia Dollar and the market presence of major overseas online booksellers by focusing on differentiation and leveraging people’s affection for books and bookstores.


'New Zealand's Commitment to Combat Disability Discrimination' (Victoria University of Wellington Legal Research Paper No. 13/2011) by Petra Butler is a chapter in the forthcoming Critical Perspectives on Human Rights and Disability Law (Brill 2011) edited by Marcia Rioux, Lee Basser and Melinda Jones. It explores New Zealand's commitment to combat disability discrimination, especially in regard to the Convention on the Rights of Persons with Disabilities. The 31 page paper considers the NZ constitutional framework, policy developments, and practical measures.

Butler concludes that -
Together the New Zealand Bill of Rights Act [BORA], the Human Rights Act [HRA] and the New Zealand Disability Strategy [NZDS] ensure in theory the full, effective and equal enjoyment of human rights and fundamental freedoms by persons with disabilities. The Bill of Rights Act and Human Rights Act have a clear prohibition on the discrimination against persons with disabilities. Discrimination is unlawful whether it is committed by the government or by private individuals, unless there is a sufficient justification or an unreasonable request to accommodate. The New Zealand Disability Strategy is designed not only to promote non-discrimination but also to ensure that disabled people feel fully included in society. The BORA, the HRA and the NZDS all aim to include disabled people into non-disabled society especially in education, employment, community living, in accessing facilities and in the provision of goods and services. The New Zealand Disability Strategy has a particular emphasis on affirming the dignity of disabled persons, respecting their differences and trying to facilitate their participation in society.

Despite the legislative protections and policy initiatives, disabled persons still are and feel discriminated against, especially in healthcare and employment. Discrimination tends to impact negatively upon the standard of living of disabled people, which consequently inhibits their autonomy and their ability to participate fully as members of the community. However, progress is being made in all aspects of the Disability Strategy as demonstrated in the annual reports published by the Office for Disability Issues. One reason that disabled people still have trouble integrating into society is that there is still considerable uncertainty over what constitutes ‘reasonable accommodation’ in regards to disability but the Human Rights Commission has advocated for a more Convention compliant meaning. Uncertainty around the issue means that people are often unsure about what their obligations are in respect of accommodating persons with disabilities. It is possible that New Zealand’s recent ratification of the CRPD will provide a further impetus to ensuring the rights of persons with disabilities and their full participation in society. While the legislation and policy in New Zealand does ensure full rights and inclusiveness on a similar level to non-disabled people, in practice those policies need to be implemented fully.

The recurring theme throughout the individual monitoring research was that despite the fact that lawmakers and policymakers appear to have been conscientious in confronting many of the barriers to the full enjoyment of human rights by disabled people, it is the negative attitude and/or lack of understanding of impairments by non-disabled members of the community that cause the greatest difficulties for disabled people. The main source of negative experiences reported was social isolation – disabled people struggle with participation, inclusion and accessibility because people are not well-equipped to relate to people with impairments, and may therefore engage with them in an inappropriate way or even not engage with them at all. A lack of respect for difference is still widely experienced, particularly in the employment context where bureaucratic inflexibility prevents employers being able to accommodate the differing needs of disabled people even where those people are highly qualified and willing to work. The lack of reasonable accommodation in areas like employment and access to transportation is significant for the autonomy of disabled people – they may be compelled to turn down work opportunities or opportunities to participate socially where their impairment would make it awkward or untenable to accept them. Dignity is part and parcel of being able to participate in society and determine one’s own path in life, so the inability of non-disabled people to appropriately relate to disabled people ties in strongly to disabled people’s feelings of self-worth.

Overall, the ability of disabled persons to fully enjoy human rights in New Zealand appears to be limited more by attitudes borne from a lack of understanding of the everyday realities of disabled people’s lives than from lack of accommodations put in place through laws, policies and programs. This was reflected in the individual monitoring research, where the largest category of recommendations for change put forward by participants was in the area of raising awareness. The research suggests that rather than focussing on tangible issues like work, transport and education, further thought should be given to raising awareness in areas more intrinsic to a person’s self worth, such as friendships and social networks. New Zealand has developed a reasonable regulatory foundation from which to promote the human rights of disabled people, but now is not the time for New Zealand to rest on its laurels.