02 December 2011


From the great Keith Thomas' spirited item in the latest LRB, regarding concerns about British [and Australian] universities -
... the discontinuance of free university education; the withdrawal of direct public funding for the teaching of the humanities and the social sciences; the subjection of universities to an intrusive regime of government regulation and inquisitorial audit; the crude attempt to measure and increase scholarly ‘output’; the requirement that all academic research have an ‘impact’ on the economy; the transformation of self-governing communities of scholars into mega-businesses, staffed by a highly-paid executive class, who oversee the professors, or middle managers, who in turn rule over an ill-paid and often temporary or part-time proletariat of junior lecturers and research assistants, coping with an ever-worsening staff-student ratio; the notion that universities, rather than collaborating in their common task, should compete with each other, and with private providers, to sell their services in a market, where students are seen, not as partners in a joint enterprise of learning and understanding, but as ‘consumers’, seeking the cheapest deals which will enable them to emerge with the highest earning prospects; the indiscriminate application of the label ‘university’ to institutions whose primary task is to provide vocational training and whose staff do not carry out research; and the rejection of the idea that higher education might have a non-monetary value, or that science, scholarship and intellectual inquiry are important for reasons unconnected with economic growth.

30 November 2011

Spousal Privilege

In Australian Crime Commission v Louise Stoddart & Anor [2011] HCA 47 the High Court has upheld an appeal by the Australian Crime Commission (ACC) against the decision of the Full Court of the Federal Court of Australia, which had granted a declaration that the Australian Crime Commission Act 2002 (Cth) had not abrogated the common law privilege against spousal incrimination.

The High Court held that the common law does not recognise a privilege against spousal incrimination. The Court was concerned with claims regarding common law; its decision does not invalidate provisions in Commonwealth and state/territory enactments regarding privilege in criminal prosecutions.

Section 30(2)(b) of the ACC Act provides that a person appearing as a witness before the ACC, in an investigation by that organisation (which is not a court), shall not refuse or fail to answer a question required under that Act. Failure to answer questions as required is an offence punishable on conviction by penalties including imprisonment.

In the course of answering questions concerning details of her husband's business, Ms Stoddart claimed to be entitled to "the privilege of spousal incrimination", ie a right not to give evidence that might incriminate her husband.

The Act does not refer to such a privilege. Questioning by the ACC was adjourned to enable her to bring proceedings in which a Commonwealth court would determine whether the claimed privilege existed, and if so whether it continued to have effect.

In Stoddart v Boulton [2009] FCA 1108 the Federal Court dismissed the Ms Stoddart's application for declaratory and injunctive relief, holding that a spousal privilege existed at common law but that it was abrogated by the Act.

On appeal, the Full Court of the Federal Court in Stoddart v Boulton [2010] FCAFC 89 held by a majority that the common law privilege against spousal incrimination existed and that the Act had not abrogated that privilege, and granted declaratory relief.

The ACC appealed to the High Court, arguing that -
• the Full Court erred in recognising a common law privilege against spousal incrimination, and, in the alternative,
• the Full Court should have held that s 30 of the Act dealing with the privilege against self-incrimination abrogated the spousal privilege if it otherwise existed
The High Court today held by majority that the claimed privilege against spousal incrimination does not exist at common law.

Ms Stoddart was a competent witness to be examined under the Act and was compelled to give evidence by the provisions of the Act. No privilege of the kind claimed could be raised in answer to that obligation. It was therefore not necessary to consider the appellant's alternative submission.

The Court's decision will attract considerable interest from practitioners, legal theorists and academics. French CJ and Gummow J refer to -
• Lord Diplock in In re Westinghouse Uranium Contract ("the privilege against self-incrimination was restricted to the incrimination of the person claiming it and not anyone else. There is no trace in the decided cases that it is of wider application; no textbook old or modern suggests the contrary. It is not for your Lordships to manufacture for the purposes of this instant case a new privilege hitherto unknown to the law.")

• McHugh J in Environment Protection Authority v Caltex Refining Co Pty Ltd (the apparent common law exception respecting rejection of evidence by the spouse of the accused rested upon a distinct principle, namely, lack of competence to testify)

• the House of Lords in Rumping v Director of Public Prosecutions (rejecting the proposition that at common law communications between spouses were protected against disclosure both in civil and criminal proceedings by the other spouse or by some third person)
and comment that "In effect, [Stoddart] seeks extension of her common law privilege beyond that of her self-incrimination ... to that of incrimination of her spouse by her evidence, and then relies upon the failure of the legislature in s 30 of the Act to restrict or abrogate that extended privilege". They go on to state -
... the statement in the eighth Australian edition of Cross on Evidence that while "[f]rom time to time it has been suggested that there was a common law privilege attaching to marital communications ... the privilege is entirely the creature of statute". In the United States the development of the common law took a different course in many jurisdictions with the development of a privilege respecting communications between spouses.

Another point of present significance is that when reporting in 1853, the Common Law Commissioners ... made no reference to any then existing common law rule of privilege relating to communications between husband and wife, or to the protection of one spouse against incrimination of the other.

It may be said that in the great majority of cases decided before the mid-Victorian era of statutory reform, evidence of this nature was effectively excluded by the first and third rules respecting spousal competency identified above, and that only in exceptional cases could evidence attracting the alleged privilege be given where neither spouse was a party.
After considering the judgement in R v The Inhabitants of All Saints Worcester and its reception by the NZ Law Reform Commission they state that
In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton that in All Saints, and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.
Dyson Heydon, quoting Oliver Wendell Holmes J and indulging in a bibliographical romp, again acted as the 'great dissenter' in a quirky judgement that will presumably be mined with delight by his fans and those not so inclined.

Crennan, Kiefel and Bell JJ state that -
Opinions may differ as to the interpretation of statements in older texts and cases. Such statements as there are, which suggest that one spouse might not be obliged to give evidence or answer questions which may tend to incriminate the other, do not provide a sufficient foundation for a conclusion that a spousal privilege of the kind claimed existed. Statements in All Saints were addressed to the question of compellability and later cases show that they have been so understood. Those observations are consistent with a view that the court retains the power to determine the question of the wife's compellability. Even so, the question of her compellability was not finally determined in that case. Its lack of resolution until much later, in England, does not suggest that the topic of a substantive witness privilege was likely to have been addressed. The later application of some of the old common law views towards marriage, which informed the rule of competency, and about which it is not necessary to proffer a view on this appeal, with respect to the compellability of a spouse in criminal proceedings, does not point to the existence of a privilege. It merely states an assumption that those views meant that a privilege arose. It has not been shown that that question has been addressed by the common law courts.

The observations of Justice Oliver Wendell Holmes concerning the creation of legal doctrine are apposite here. He spoke of a statement of principle occurring only after a series of determinations on the same subject matter and by a process of induction and went on to say:
And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step.
No such developments are evident in the cases and materials to which reference has been made in this case. They suggest, at most, that a spouse might seek a ruling from the court that he or she not be compelled to give evidence which might incriminate the other spouse.

No question of compellability arises in this case. The first respondent was a competent witness to be examined under the ACC Act and was compelled by the provisions of that Act to do so. No privilege of the kind claimed could be raised in answer to that obligation.


Facebook, the very model of a modern social network service in its respect for privacy and abhorrence of volatility in privacy statements, has agreed to settle US Federal Trade Commission (FTC) charges [PDF] that it deceived consumers by telling them they could keep their information private and then repeatedly allowing that information to be shared and made public. Action by the FTC reflected complaints by the Electronic Privacy Information Center (EPIC) and a coalition of US consumer groups.

The settlement requires Facebook to "live up to its promises in the future", including -
• giving consumers clear and prominent notice
• obtaining consumers' express consent before their information is shared beyond the privacy settings they have established.
Concerns regarding consent have been recurrently highlighted in this blog, for example in the post on the Article 29 Working Party statement in Europe.

The FTC charged that Facebook made unfair and deceptive claims, and violated federal law. FTC Chair Jon Leibowitz commented that -
Facebook is obligated to keep the promises about privacy that it makes to its hundreds of millions of users. Facebook's innovation does not have to come at the expense of consumer privacy. The FTC action will ensure it will not.
Specific complaints from the FTC include -
• in December 2009, Facebook changed its website so certain information that users may have designated as private – such as their Friends List – was made public. They didn't warn users that this change was coming, or get their approval in advance.

• Facebook represented that third-party apps that users' installed would have access only to user information that they needed to operate. In fact, the apps could access nearly all of users' personal data – data the apps didn't need.

• Facebook told users they could restrict sharing of data to limited audiences – for example with "Friends Only." In fact, selecting "Friends Only" did not prevent their information from being shared with third-party applications their friends used.

• Facebook had a "Verified Apps" program & claimed it certified the security of participating apps. It didn't.

• Facebook promised users that it would not share their personal information with advertisers. It did.

• Facebook claimed that when users deactivated or deleted their accounts, their photos and videos would be inaccessible. But Facebook allowed access to the content, even after users had deactivated or deleted their accounts.

• Facebook claimed that it complied with the US-EU Safe Harbor Framework that governs data transfer between the US and the European Union. It didn't.
The FTC's media release states that Facebook is barred from making any further deceptive privacy claims, is required to get consumers' approval before it changes the way it shares their data, and required to obtain periodic assessments of its privacy practices by independent, third-party auditors for the next 20 years.

Given that the devil is the detail, Facebook is -
• barred from making misrepresentations about the privacy or security of consumers' personal information;

• required to obtain consumers' affirmative express consent before enacting changes that override their privacy preferences;

• required to prevent anyone from accessing a user's material more than 30 days after the user has deleted his or her account;

• required to establish and maintain a comprehensive privacy program designed to address privacy risks associated with the development and management of new and existing products and services, and to protect the privacy and confidentiality of consumers' information; and

• required, within 180 days, and every two years after that for the next 20 years, to obtain independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order, and to ensure that the privacy of consumers' information is protected.
The Order, subject to community comment, features record-keeping provisions to allow the FTC to monitor compliance.

In its corporate blog the FTC highlights its action, commenting that -
Privacy changes – unfair practices. Furthermore, according to the FTC, by designating certain user profile info as public when it had previously been subject to more restrictive privacy settings, Facebook overrode users’ existing privacy choices. In doing that, the company materially changed the privacy of users’ information and retroactively applied these changes to information that it previously collected. The FTC said that doing that without users’ informed consent was an unfair practice, in violation of the FTC Act.

What info apps had access to. According to the complaint, for a significant period of time after Facebook started featuring apps on its site, it deceived users about how much of their information was shared with the apps they used. Facebook said that when people authorized an app, the app would only have information about the users “that it requires to work.” Not accurate, says the FTC. According to the complaint, apps could access pretty much all of the user’s information – even info unrelated to the operation of the app. For example, an app with a TV quiz could access a user’s Relationship Status, as well as the URL for every photo and video the user had uploaded – information that went well beyond what the app “requires to work.”

What info Facebook shared with advertisers. Facebook also told users it wouldn’t share their personal information with advertisers. In Facebook’s Statement of Rights and Responsibilities, the company said, “We don’t share your information with advertisers unless you tell us to (e.g., to get a sample, hear more, or enter a contest). Any assertion to the contrary is false. Period ... we never provide the advertiser any names or other information about the people who are shown, or even who click on, the ads.” In fact, says the FTC, from at least September 2008 until May 2010, Facebook ran its site so that in many instances, the User ID of a person who clicked on an ad was shared with the advertiser. So much for “never.”

Facebook’s “Verified Apps” program. The FTC also challenged the operation of Facebook’s Verified Apps program. Facebook told people that the program involved a “detailed review process” and was “designed to offer extra assurances to help users identify applications they can trust – applications that are secure, respectful and transparent, and have demonstrated commitment to compliance with Platform policies.” About 250 apps paid between $175 and $375 for the seal. But according to the FTC, Facebook took no steps to verify either the security of a Verified App’s website or the security the app provided for the information it collected, beyond the steps it took for any other app.

Photo and video deletion. In addition, the FTC charged Facebook with making deceptive claims about its photo and video deletion policy. Each of the photos and videos a user uploads onto Facebook has a Content URL – a URL for its location on Facebook’s servers. Facebook told users, “If you want to stop using your account you may deactivate it or delete it. When you deactivate an account, no user will be able to see it, but it will not be deleted ... When you delete an account, it is permanently deleted from Facebook.” But even after users followed Facebook’s procedure for deactivating or deleting an account, Facebook still served up these photos and videos to anyone who accessed them via the Content URL. That, said the FTC, rendered Facebook’s statements deceptive.

29 November 2011

Data Directive

The UK Information Commissioner (ICO) has a short 'briefing' on 'The future of data protection in the EU'.

The briefing reflects the European Commission's 4 November 2010 statement regarding updating of the EU Data Protection Directive (Directive 95/46/EC) and review of the 2006 Data Retention Directive under which companies are required to store communication traffic data for a period of between six months and two years.

In that statement the Commission highlighted the importance of -
• Strengthening individuals' rights so that the collection and use of personal data is limited to the minimum necessary. Individuals should also be clearly informed in a transparent way on how, why, by whom, and for how long their data is collected and used. People should be able to give their informed consent to the processing of their personal data, for example when surfing online, and should have the "right to be forgotten" when their data is no longer needed or they want their data to be deleted.
• Enhancing the Single Market dimension by reducing the administrative burden on companies and ensuring a true level-playing field. Current differences in implementing EU data protection rules and a lack of clarity about which country's rules apply harm the free flow of personal data within the EU and raise costs.
• Revising data protection rules in the area of police and criminal justice so that individuals' personal data is also protected in these areas. Under the Lisbon Treaty, the EU now has the possibility to lay down comprehensive and coherent rules on data protection for all sectors, including police and criminal justice. Naturally, the specificities and needs of these sectors will be taken into account. Under the review, data retained for law enforcement purposes should also be covered by the new legislative framework.
• Ensuring high levels of protection for data transferred outside the EU by improving and streamlining procedures for international data transfers. The EU should strive for the same levels of protection in cooperation with third countries and promote high standards for data protection at a global level.
• More effective enforcement of the rules, by strengthening and further harmonising the role and powers of Data Protection Authorities. Improved cooperation and coordination is also strongly needed to ensure a more consistent application of data protection rules across the Single Market.
The UK briefing "outlines what the ICO would like to see in any future legislation" -
Scope: an effective new data protection framework must be overarching, clear in scope and easy to understand and apply

• The new framework should consist of high-level principles with the detail in implementing measures, codes of practice and other mechanisms.
• It should be a single, overarching framework applying to all the processing of personal data carried out in the EU, complemented with a set of more specific rules dealing with particular areas, for example, electronic communications or law enforcement.
• The scope should be clear, particularly in the context of new forms of individual identification, the online world and the transparency agenda.
• Rather than a list-based prescriptive approach, the definitions (such as sensitive data and risky processing) and the obligations on organisations should focus on risk, context and purpose.
• The framework should place clear responsibility on and require accountability by those processing personal data, throughout the information life cycle, including applying obligations directly to data processors.
• It should contain more clearly defined exemptions for domestic purposes and journalism that are fit for Web 2.0 and beyond, specifically taking account of societal and technological changes (such as social networking and citizen journalism and blogs).

Rights: individuals should have clear, effective rights and simple, low-cost means of exercising them

• The framework should strengthen individual rights to object to and block processing, and to have their data deleted, and reverse the burden of proof so the organisation has to provide compelling legitimate grounds for continuing processing.
• It should not introduce a stand-alone ‘right to be forgotten’ which could mislead individuals and falsely raise their expectations, and be impossible to implement and enforce in practice. There are implications for freedom of expression and questions as to how far individuals should be able rewrite their own or others’ history.
• It should be easier for individuals to exercise their rights: through using technology to provide subject access; being able to move their data around and have it in a reusable format; being able to use alternative dispute resolution; and being able to take complaints to whichever relevant regulator can serve them best.
• The framework should clarify the relationship between transparency and consent and be realistic about the levels of individual control, both in terms of what is possible and what is desirable.

Obligations: organisations should be responsible and accountable

• The framework should be less prescriptive in terms of the processes we expect organisations to adopt, but clearer in terms of the standards we expect them to reach. For example, obligations on organisations to have good information management and to demonstrate compliance and accountability, without prescriptive lists of measures to take or how to demonstrate compliance and accountability.
• Any general obligation associated with PIAs should only be to consider whether one is required. Organisations should carry out a PIA where processing has or could have a significant or adverse impact on the individual; uses intrusive technology; or the purpose of the processing creates a particular risk.
• Privacy by design should be encouraged as an approach, and encompasses tools such as PIAs. It could also be reflected in requirements to regularly review technology, systems and processes. However, any explicit provisions to compel privacy by design would be difficult to implement and enforce in practice.
• Any provisions for breach notification should follow those of the e-privacy Directive and its implementing measures.

Criteria and thresholds for reporting should relate to the level of risk to the individual.

• Information provided to regulators by organisations should be meaningful and a way to demonstrate compliance and accountability (for example, as part of any notification obligation).
• As with all other aspects of a organisation’s processing, assessing adequacy for international transfers should be the responsibility of the organisation in the first instance, not the data protection authority.

Data protection authorities: independence, clarity of role, effective powers and flexibility are key

• DPAs should have a role to supervise, enforce, and advise; not to give prior approval or authorisation to organisations’ activities.
• DPAs should have powers to take action against any organisation, regardless of their role in the stewardship of the personal data. These powers should include the ability to audit all organisations without consent, not just the public sector.
• DPAs should co-operate and share information with each other, but remain independent with the flexibility to carry out their role according to their own strategy and as appropriate to the national situation. For example, as regards deciding priorities; what complaints to take forward; what sanctions to impose.
• The UK should continue to be able to use a fee-based funding model for the regulator, based on the ‘polluter pays’ principle, even if it is not linked to notification.

28 November 2011

Social Justice Report

The 208 page national Social Justice Report 2011 [PDF] concerned with Aboriginal & Torres Strait Islander Social Justice features eight recommendations. It gives effect to s 46C(1)(a) of the Australian Human Rights Commission Act 1986 (Cth), with the national Aboriginal & Torres Strait Islander Social Justice Commissioner submitting a report regarding "the enjoyment and exercise of human rights" by Aboriginal and Torres Strait Islanders, along with recommendations regarding action that should be taken.

The recommendations are -
Constitutional recognition

1. That the Australian Government make the report of the Expert Panel on Constitutional Recognition of Indigenous Australians public as soon as practicable following its submission.

2. That the Australian Government establish a campaign and appoint a community engagement team to drive forward the recognition of Aboriginal and Torres Strait Islander peoples in Australia’s Constitution.

3. That the Australian Government fully resource a popular education strategy to be developed and rolled out from early 2012 to:
• engage the wider community in relation to the proposals for change and the reasons why they have been proposed
• provide an opportunity for the Australian community to discuss and debate the options and express views on the change to be taken to a referendum.
Northern Territory Intervention

4. The Australian Government work in partnership with Aboriginal and Torres Strait Islander peoples in the Northern Territory to overcome disadvantage and identify and address other issues of concern in their communities, through the establishment of legislation, programs and policies, as necessary, which are consistent with international human rights standards.
International human rights mechanisms

5. That the Australian Government take steps to formally respond to, and implement, recommendations which advance the human rights of Aboriginal and Torres Strait Islander peoples, made by international human rights mechanisms, including:
• treaty reporting bodies
• the Special Rapporteur on the rights of indigenous peoples
• United Nations Permanent Forum on Indigenous Issues
• Expert Mechanism on the Rights of Indigenous Peoples.
Statement or Charter of Engagement

6. That the Australia Government develop a ‘Statement or Charter of Engagement’ to complement
Engaging Today, Building Tomorrow: A framework for engaging with Aboriginal and Torres Strait Islander Australians. This document should include the Government’s commitment to be guided by the principles of the United Nations Declaration on the Rights of Indigenous Peoples when engaging with Aboriginal and Torres Strait Islander peoples, including the right to participate in decision-making, and the principle of free, prior and informed consent.
Implementation of the recommendations from Social Justice Reports

7. That the Australian Government should implement outstanding recommendations from the Social Justice Report 2010 and provide a formal response for next year’s Report which outlines the Government’s progress against the recommendations from both the Social Justice Report 2010 and Social Justice Report 2011.

Implementation of the Declaration

8. That the Australian Government work in partnership with Aboriginal and Torres Strait Islander peoples to develop a national strategy to ensure the principles of the United Nations Declaration on the Rights of Indigenous Peoples are given full effect.
The report's discussion of lateral violence, identity and self-realisation is of particular interest.

Postmortem and Ethno-Religious Identity

In Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94 the Northern Territory Supreme Court has granted an application to prevent an autopsy of a person killed in a road crash.

The application was made by the deceased person's family under s 23(3) of the NT Coroners Act.

That section provides -
1) Where the senior next of kin of the deceased person asks a coroner not to direct that an autopsy be performed but the coroner decides that an autopsy is necessary, the coroner must immediately give notice in writing of the decision to the senior next of kin.

2) Unless the coroner believes that an autopsy needs to be performed immediately, where a request has been made under subsection (1), an autopsy must not be performed until 48 hours after the senior next of kin of the deceased person has been given notice of the coroner's decision under that subsection.

3) Within 48 hours after receiving notice of the coroner's decision under subsection (1), the senior next of kin of the deceased person may apply to the Supreme Court for an order that an autopsy not be performed and the Court, in its discretion, may make an order that no autopsy be performed.
The exercise of the discretion of the Court under s 23(3) is not fettered. In determining the exercise of that discretion the Court must balance the interests of the deceased person's family "in following and maintaining their Aboriginal culture and law" against "the interests of the community on the other that the cause of an otherwise unexplained death be ascertained if possible". That balance reflects a recognition that "if there are any suspicious circumstances surrounding the death, or there are other compelling reasons why it is in the public interest that an autopsy be performed, those cultural and spiritual considerations must take second place to the public interest".

In this instance the Court noted the comment in Green v Johnstone [1995] VICSC 34 that -
In a multicultural society such as we have in this country, it is my opinion that great weight should be given to the cultural and spiritual laws and practices of the various cultural groups forming our society, and that great care should be taken to ensure that their laws and practices, assuming they are otherwise lawful, are not disregarded or abused.
Was the autopsy essential? The Court noted that -
It was further submitted that knowing that the cause of this death was the deceased’s heart condition, rather than the presence of alcohol or drugs in his system, may ensure that the deceased’s dependents obtain the full benefits available to them under the Motor Accidents (Compensation) Act. I was informed that toxicology results were pending, meaning that information about whether the deceased had alcohol or other drugs in his system at the time of death will become available as a result of blood samples and that it is not necessary to perform an autopsy to achieve this result. In any case, this application was brought by members of the family and I was informed by counsel that it was made on behalf of all family members. (If there had been evidence that there was a real issue as to the entitlement to benefits of infant beneficiaries unable to assent to the bringing of this application, and that it was necessary to resolve that issue for an autopsy to be performed, that would have been a different matter altogether.)

It was further submitted on behalf of the coroner that understanding the cause of this death may give rise to consideration and discussion of the entitlement to drive of persons with serious heart conditions, the capacity and obligation of treating medical personnel to report such conditions to the licensing authorities, and the power and duty of those authorities to consider and determine a driver’s entitlement. There is a real possibility that this man’s death was caused or contributed to by heart disease, and an autopsy will do nothing to establish the cause of the collision. In those circumstances, it seems to me that the coroner has all the information he is ever going to get, autopsy or no autopsy, on which to base any such comments or recommendations.
The Court concluded -
In the circumstances, given the very limited amount of additional information which would be made available from an autopsy, and the real distress which will be caused to the family of the deceased and other community members if an autopsy is performed, I consider that, in this case, the interest of the family outweighs the public interest in determining the precise cause of death.
Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. Most Australian jurisdictions make some allowance for cultural sensitivities, for example under ss 20 and 28 of the Coroners Act 1997 (ACT) and ss 25, 88 and 96 of the Coroners Act 2009 (NSW). (Note associated sanctions such as those under s 83 of the ACT Act.)

Coronial powers to order autopsies reflect the authority of the state (and rationales such as serving justice through fact-based criminal investigation and protecting public health through research in disease or injury).

The record of Australian courts in approving or rejecting applications to prevent autopsies or simply order that a deceased person be buried, burned or exposed for transmutation by vultures is mixed.

Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners' decisions have been overturned, for example in Green v Johnstone [1995] 2VR 176, Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65 and Abernethy v Deitz (1996) 39 NSWLR 701.

Slow Regulation

The Therapeutic Goods Administration (TGA), the Australian counterpart of the US FDA that was recently severely criticised by the ANAO, has belatedly announced that it has cancelled the listing of Sensaslim Solution from the Australian Register of Therapeutic Goods (ARTG) because of a failure to comply with requirements of the Therapeutic Goods Act 1989 (Cth) relating to the advertising of the product.

The belated removal of listing - indicative of regulatory incapacity at the TGA - follows action by the Australian Competition & Consumer Commission against Sensaslim Australia Pty Ltd (Administrator Appointed), Peter Clarence Foster and others. The ACCC alleged that Sensaslim and several of its officers engaged in misleading and deceptive conduct and made false representations.

The slow food movement may be admirable, albeit romantic, but indolence in regulation has its costs. Given the ANAO report we might hope that TGA executives are examining the operation of their operation.

27 November 2011

GI Management and Traditional Knowledge

The European Court of Auditors, the European Commission's financial watchdog (broadly equivalent to Australia's ANAO), has released a 49 page special report (ECA No 11/2011) [PDF] regarding the design and management of the EU geographical indications regime. In essence it asks whether the design allows the scheme to be effective.

The European geographical indications regime aims to protect product names that are registered as 'Protected Designation of Origin' (PDO) or 'Protected Geographical Indication' (PGI).

PDO describes products claimed as having characteristics resulting essentially from the geographical area and the knowhow of the producers in the area of production. All stages of the production take place in that geographical area; there must be a close link between the products’ features and their geographical origin. Examples are 'Queso Manchego', 'Prosciutto di Parma' and 'Grana Padano'.

PGI relates to products having specific characteristics or reputation associating them with a given geographical area where at least one stage of the production takes place. If the products are processed, the raw materials may come from other geographical areas. Examples include Bayerisches Bier , Scotch Beef and Pruneaux d’Agen.

As of 2010, some 964 product names were registered in Europe: 502 as a PDO and 462 as a PGI. The Commission has a target of 1,100 GI names by the end of 2012.

PDO and PGI products may be recognised through specific EU symbols (intended to provide a guarantee that the products relate to a particular geographical area. The estimated aggregate wholesale value of EU GI is €15 billion per year (claimed as equivalent to 2.5% of the expenditure for food consumption in the EU).

The Court comments that -
The scheme also provides a potential economic opportunity for farmers and producers of food and can have a positive impact on the rural economies of the EU’s regions, as well as offer an impetus for safeguarding local culture and tradition and provide consumers with the opportunity to be more aware of the origin of the products they consume.
The ECA performance audit assessed whether the Commission manages the GI scheme "in a way that would allow it to be effective in meeting its objectives".

The audit featured three criteria -
  • the robustness of the control system defined, 
  • the attractiveness of the scheme to potential applicants 
  • consumers’ awareness of it.
It concluded that clarification is needed on a number of issues. There is no clear strategy for promoting and raising awareness of the scheme amongst both producers and consumers.

In particular -
• the legal provisions do not lay down minimum requirements for Member States’ checks on product specifications;
• the regulation does not clearly define the Member States’ obligation to carry out checks to prevent and detect disallowed practices;
• most of the national authorities accordingly do not carry out regular checks in view of detecting and suppressing these practices;
• the Commission does not monitor closely the implementation of the GI scheme in the Member States;
• No audits on the GI scheme have been carried out so far;
• the potential applicants are often not aware of the scheme or are discouraged by the lengthy application procedures;
• consumer recognition of the scheme and its symbols is very low.
The report notes that -
detection and suppression of cases of disallowed practices on a regular basis. They usually carry out checks aimed at the detection and suppression of disallowed practices concerning PDO and PGI products only in order to address denunciations or as a secondary part of hygiene and safety checks related to foodstuffs. Where such checks are carried out, the visits to the Member States and the online survey showed a difference in the coverage of PDO and PGI products from other countries. In a number of Member States, the checks exclude such products and only national produc ts are covered.
Recommendations by the ECA for improvement of the GI scheme are -
• The Commission should set out minimum requirements concerning checks on product specifications and lay down clear rules for a control system that provides for regular checks to detect and suppress disallowed practices.
• The Commission should also develop a strategy for raising awareness of the GI scheme among potential applicants and consumers and for exploring more effective means of promoting the GI scheme to them.
The report coincides with release on SSRN of 'The Mismatch of Geographical Indications and Innovative Traditional Knowledge' (Victoria University of Wellington Legal Research Paper No. 35) by Susy Frankel, whose work has been noted elsewhere in this blog

She argues that -
geographical indications cannot deliver the protection for traditional knowledge that indigenous peoples seek. There are three broad ways in which the protection of GIs appears to offer the possibility of providing legal mechanisms to protect traditional knowledge. These are the collective nature of the protection, the indefinite availability of GIs and the connection that GI owners associate between their products and their land. Those seeking protection of traditional knowledge also seek a collective and an indefinite interest and frequently the relationship between their knowledge and the land is important for indigenous peoples. Yet these similarities are superficial. GIs protect names and are used by western farmers and sometimes rural communities to promote their products. This article concludes that GIs cannot deliver the protection that indigenous peoples seek in order to benefit from their traditional knowledge.