10 December 2011


The Australian Parliament's Joint Standing Committee on Electoral Matters in its Report on the funding of political parties and election campaigns [PDF] recommends tightening the national regime, through for example public disclosure of all donations over $1,000 and a ban on foreign donations.

The Committee chair comments that -
Australia can be proud of its democratic system, but there is scope for improvement. In terms of political financing arrangements, the funding and disclosure system that was introduced in 1984 was a leader in its field. However, more than a quarter of a century later, Australia’s political financing arrangements are in need of review and revitalising.
While there is no evidence that the funding and disclosure system is being abused, the inquiry has provided an opportunity to strengthen and provide more confidence in the system.

Transparency and accountability must remain central goals of our financing arrangements. Disclosure should continue to be a central pillar of our arrangements in Australia to provide electors with sufficient information on which to base selection of their political representatives. ...

In Australia, it is important to safeguard the integrity of our funding and disclosure system, but it is also vital not to unduly restrict the ability of individuals and groups to engage in the political arena, whether through donating to a candidate, political party or third party, or advocating on, or seeking to engage the community on, a particular issue. Australians’ rights to freedom of political expression and participation must also remain a high priority. In making the recommendations in this report, the committee has sought to strike an appropriate balance between these competing concerns.

Key reforms include increasing the level and frequency of disclosure, by reducing the disclosure threshold from the current $11,900 (indexed to CPI) to $1,000, without indexation. The reporting requirement for political parties, associated entities and third parties, which is currently annual will initially move to six-monthly, with a view to moving to contemporaneous reporting following an investigation of options by the Australian Electoral Commission (AEC). The committee has also recommended the introduction of special reporting of single donations over $100 000, which must be disclosed to the AEC within 14 business days of receiving the donation and made publically available soon after on the AEC website.

To improve overall transparency of the flow of money, the committee also proposes requiring greater disclosure of political expenditure. Currently, expenditure is disclosed as a block sum with no specific details.

These increased disclosure requirements will place additional administrative burdens on those with reporting obligations. To help address this, an additional stream of funding is proposed to assist Independents and political parties in meeting their increased obligations. While the provision of administrative funding does mean additional public money, the increased transparency will leave electors better armed with relevant information about the movement of money.

The committee has also made recommendations to enhance the administrative efficiency of disclosure arrangements, including the AEC enhancing its online lodgement system to assist those with reporting requirements for donations and expenditure.

The committee also recognised that effective compliance arrangements are essential for a workable funding and disclosure scheme. Offences that are straightforward matters of fact, such as the late lodgement of a return, should have administrative penalties attached, to enable the AEC to issue fines for breaches of these laws, rather than requiring criminal prosecution by the Commonwealth Director of Public Prosecutions (CDPP). However, for offences of a more serious nature, penalties should be strengthened to send a clear message to individuals, groups and the CDPP of the gravity of breaches of this nature and the need to take action on these matters.
In relation to Private Funding the Committee recommends -
R 1 - that the disclosure threshold be lowered to $1,000 and CPI indexation be removed.

R 2 - that the Commonwealth Electoral Act 1918 (Cth) be amended to require that only the name, suburb, postcode, state and the amount donated by individual donors be released on the public website by the AEC.

R 3 - that donations to ‘related political parties’ be treated as donations to the same political party for the purposes of the disclosure threshold. Once the combined donations to related political parties from a single donor reaches the $1,000 threshold, disclosure is required.

R 4 - that the definition of ‘gift’ in the Commonwealth Electoral Act 1918 (Cth) be amended to include fundraising events.

R 5 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to include the following:
• to require political parties and associated entities to classify their receipts exceeding the disclosure threshold as ‘donations’ or ‘other receipts’;
• to include an adequate definition of ‘donation’ and ‘other receipt’; and
• to make the requisite changes to the enforcement and investigation provisions to allow the AEC to investigate and enforce these classifications.
R 6 - that the Australian Government introduce a six-monthly disclosure reporting timeframe, as outlined in the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010.

R 7 - that if a single donation above $100,000 is made to a political party, associated entity, third party, candidate or Senate group, then a 'Special Reporting Event' return must be lodged with the Australian Electoral Commission by the political party, associated entity, third party, candidate or Senate group and the donor within 14 days of receipt of the donation. The AEC must publish details of these returns within 10 business days of lodgement.

R 8 - that the AEC investigate the feasibility and requirements necessary to implement and administer a system of contemporaneous disclosure and report back to the Special Minister of State by 31 March 2012.

R 9 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to require political parties to aggregate all individual donation receipts, not just those individual receipts that exceed the disclosure threshold, in line with the current disclosure requirement for donors.
Recommendations on Options for private funding reform are -
R 10 - that the Commonwealth Electoral Act 1918 (Cth) be amended to ban political parties, Independent candidates, associated entities and third parties from receiving ‘gifts of foreign property’.

R 11 - that a ban be imposed on anonymous donations above $50 to political parties, associated entities, third parties, Independent candidates and Senate groups.

R 12 - that in addition to the measure to prohibit gifts of foreign property being implemented, methods to curb the potential for circumvention be examined and solutions devised.
Expenditure is covered by two recommendations -
R 13 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to require political parties and associated entities to disclose details of their expenditure above the applicable disclosure threshold in their six-monthly returns.

R 14 - that to complement the requirement for political parties and associated entities to disclose details of expenditure above the disclosure threshold, the AEC should provide guidance and enhance its online lodgement system to help ensure that those with reporting obligations have a clear understanding of, and the administrative means by which, to meet this obligation.
Recommendations regarding Public funding are as follows -
R 15 - that public funding to political parties and candidates be allocated on the basis of the lesser of:
• the application of the per vote formula to the first preference votes won; or
• reimbursement for proven expenditure following the lodgement of a claim,
provided they obtain four per cent of the first preference vote, as proposed in the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010.
R 16 - that members elected with less than four per cent of the first preference vote be eligible for election funding. These members should be entitled to the lesser of:
• the application of the ‘per vote’ rate to the first preference votes won; or
• reimbursement for proven expenditure following the lodgement of a claim.
R 17 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to ensure the payment of election funding entitlements for eligible candidates and Senate groups can be made to the party, whether or not the party is organised on the basis of a particular state or territory.

R 18 - that the Commonwealth Electoral Act 1918 (Cth) be amended to implement a scheme of ongoing administrative funding for registered political parties and Independents. The proposal for administrative funding is part of a broader package of public funding reforms and should complement the changes to election funding arrangements in recommendations 14, 15 and 16. The Australian Government should, in consultation with key stakeholders, develop a model for the entitlement and payment of administrative funding appropriate for application at the Commonwealth level.
In relation to Third parties and associated entities the committee recommends -
R 19 - removing the reference to ‘issues in an election’ from the definition of political expenditure, by deleting s 314AEB(1)(a)(ii) of the Commonwealth Electoral Act 1918 (Cth).

R 20 - removing the reference to opinion polls and other research from the definition of political expenditure, by deleting s 314AEB(1)(a)(v) of the Commonwealth Electoral Act 1918 (Cth).

R 21 - that the frequency of disclosure reporting obligations for third parties under the Commonwealth Electoral Act 1918 (Cth) align with the frequency with which political party disclosure takes place, to minimise the potential for circumvention of requirements.

R 22 - that third parties be subject to the same disclosure threshold as political parties, Independent candidates, Senate groups, associated entities and donors.

R 23 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to impose a disclosure obligation on donors to third parties. Amendments should be worded so that only the name, suburb, state and postcode of individual donors are required to be made public.

R 24 - that the Australian Government investigate options for:
• restricting or capping third party political expenditure; and
• setting a reasonable period relevant to the election date around which this restriction would apply.
R 25 - that the Commonwealth Electoral Act 1918 (Cth) be amended to improve the clarity of the definition of ‘Associated Entity’. Particular steps that could be taken might include the following:
• defining ‘controlled’ as used in section 287(1)(a) to include the right of a party to appoint a majority of directors, trustees or office bearers;
• defining ‘to a significant extent’ as used in s 287(1)(b) to include the receipt of a political party of more than 50% of the distributed funds, entitlements or benefits enjoyed and/or services provided by the associated entity in a financial year; and
• defining ‘benefit’ as used in s 287(1)(b) to include the receipt of favourable, non-commercial arrangements where the party or its members ultimately receives the benefit.
In relation to Compliance the Committee's recommendations are -
R 26 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to make offences classified as ‘straightforward matters of fact’ subject to administrative penalties issued by the AEC. The issuance of an administrative penalty should be accompanied by a mechanism for internal review.

R 27 - that the penalties in relation to offences that are classified as more ‘serious’ should be strengthened along the lines proposed in the Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2010.

R 28 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to provide the AEC with the power to conduct compliance reviews and serve notices on candidates and Senate groups, in addition to federal registered political parties, their state branches and associated entities.

R 29 - that the Commonwealth Electoral Act 1918 (Cth) be amended, as necessary, to require the AEC to make available on its website compliance review reports and details of final determinations on reviews.
The Committee's 30th recommendation is that the funding and disclosure functions in the Commonwealth Electoral Act 1918 (Cth) continue to be exercised and administered by the AEC, and that the AEC receive additional resources to carry out these functions and exercise its enforcement powers.

The dissenting report from Coalition members of the Committee comments that -
Coalition members of the Joint Standing Committee on Electoral Matters note most of the recommendations by the Committee are solely to serve the interests of the Australian Labor Party, the Greens and their backers such as GetUp. This is particularly evident in relation to the proposed lowering of the donation disclosure threshold from $11,900 to $1000, which will significantly impact the ability of individuals to give donations to political parties without the potential for intimidation and harassment.
It goes on to state that -
The Coalition believes in participatory democracy and that individuals should be allowed to contribute to the political process, however, the proposed reduction in the disclosure threshold will greatly hamper the ability of individuals and firms to contribute.
That is surely the point: we might consider that there is a need for actions that inhibit the ability - or perceived ability - of major interests to subvert the democratic process by 'buying the election'.

The dissenting report sniffs that -
Neither the evidence heard by the inquiry, nor the submissions of the Labor Party, the Greens, GetUp or any other group have shown there to be any cause for concern of donations under the current threshold buying political influence. These groups have also failed to address the more obvious cause for concern where affiliation fees from unions directly buy votes on the Labor Party conference floor and a significant say in the preselection process. The hypocrisy of groups such as GetUp and political parties such as the Greens is also quite concerning, whilst both organisations claim that large political donations have the potential to corrupt the process, both organisations accepted individual donations over $1 million during the 2010 Federal Election and did not declare them until well after the election campaign had finished.

09 December 2011

Wrathful sheep?

Another day, another data breach. This time it' involves Telstra, which according to the SMH "faces the wrath of the Federal Privacy Commissioner after leaving customer details of potentially millions of customers exposed on the web including, reportedly, usernames and passwords". Oh dear, the fiercesome wrath of an arthritic and timid sheep, a creature whose wrath is so very scary that it's ignored by the telecommunications industry.

The customer information was supposedly exposed through a search page used by "Telstra customer service agents", apparently counterparts of the Vodafone dealer network highlighted here, here and here. The data was not encrypted, with Telstra relying on security by obscurity.
Telstra hastily tore down the site after it became aware of the breach late this afternoon but not before computer security experts showed that it could be used to access customer details including their account numbers, broadband packages, technician visits and, in some cases, their email’s usernames and passwords.

Media reports suggested credit check details were also accessible but that was not confirmed by Telstra. ...

Alarmingly, Telstra said it was unsure how many customers' details were potentially breached.

"(It's) unsure at this stage, it appears to be limited to bundled customers but we don't know how many," a Telstra spokeswoman said.
An update of last night's report states that -
Anyone who visits the page can search Telstra's customer database based on the customer's last name, account number, sales force ID or reference number.

They are then presented with detailed information outlining the customer's account number, what broadband plan they're on, what other Telstra services they're signed up to and notes associated with the customers' accounts including in many cases their usernames and passwords.

There are also other details about technician visits, SMS messages sent to private mobile numbers and credit check details ...

When informed of the site being accessible a Telstra spokeswoman said in a statement: "Telstra takes its customers' right to privacy very seriously and is taking immediate action to resolve this issue. We will investigate and keep our customers fully informed."

They later said: "We apologise to customers who may have been impacted by this issue. Telstra takes its customers privacy seriously".
So seriously, apparently, that it didn't anticipate an obvious problem.

Fear not, "The privacy commissioner had been made aware of the breach and a full investigation and report into the lapse would be prepared as soon as possible" and of course Telstra "would also move as quickly as possible to notify customers of the breach and maintain transparency around reporting details of the incident".

It's time to question notions of "reasonable practice" and hold telcos to a meaningful standard rather than simply excusing problems on the basis that 'everyone in the industry is doing it'. It is also time to consider regulatory incapacity.

In a subsequent ABC report the Australian Communications Consumer Action Network (ACCAN) commented that
a Telstra database with up to 1 million customers' personal details was left open for anyone to view.

"We wanted to test it and we did and sure enough it was readily available - things like passwords, the details of problems having or wanting to change bundles," she said.

"Basically any contact that you would have with the customer centre about your bundle was readily available for anyone to see."

Ms Davidson says it is "almost unbelievable" that Telstra could let the bungle occur.

"ACCAN have been speaking to Telstra. They are obviously taking it very very seriously and are investigating," she said.

"It is hard to imagine how an error of this magnitude has happened, has been allowed to happen for a company the size of Telstra, with the number of the customers they have."
In my initial comment on the Vodafone debacle I suggested that there were problems across the industry, rather than merely in one network. It is time for investigation by ACMA if the national Privacy Commissioner lacks the expertise, the resources, the legislative charter or merely the vision to examine what is going wrong.

The Commissioner does have the authority to conduct 'own motion' investigations, need not wait for complaints by members of the public and might usefully emulate Australian and overseas peers in actively examining what is going on. Both the Australian community and industry need more than a wrathful sheep, an animal that although well meaning has clearly not persuaded major corporations to move to best practice and has not inspired action through fear of its mighty "wrath".

Mother Hubbard's Regulatory Cupboard

The Australian Government has released its omnibus response to several reviews of the national therapeutic goods regulation regime undertaken over the past 18 months. In essence, the response perpetuates the regulatory incapacity evident in handling by the Therapeutic Goods Administration (TGA) - the Australian counterpart of the FDA in the US - of problems regarding 'alternative medicines' such as SensaSlim and medical implants.

The 29 page response - titled TGA Reforms: A Blueprint for the TGA's Future [PDF] - follows seven formal reviews and consultations -
• the Auditor-General's report on Therapeutic Goods Regulation: Complementary Medicines noted here
• the review to improve the transparency of the Therapeutic Goods Administration
• public consultations on the regulatory framework for advertising therapeutic goods
• an informal working group examining the regulation of complementary medicines and reasons for low compliance rates
• public consultations on the medical devices regulatory framework
• the Working Group on Promotion of Therapeutic Products
• the Health Technology Assessment Review.
Importantly, the response does not address the Regulatory standards for the approval of medical devices in Australia report by the Senate Community Affairs Reference Committee (tabled 22 November 2011). A response to that document is scheduled for the first half of 2012.

Promotion of the response is traditional, with the TGA for example stating that -
The Government's response takes into account submissions made by stakeholders, and draws this work together into a comprehensive package of reforms that will be progressed in stages.

The reforms will enhance the regulatory framework, ensuring that it remains adaptable to new scientific developments and emerging community expectations.

They will also improve the Australian community's understanding of the TGA's regulatory processes and decisions and enhance public trust in the safety and quality of therapeutic goods.
The response states that -
The reforms will enhance the TGA’s current processes to ensure that the regulatory framework within which it operates remains able to adapt with flexibility to new scientific developments and emerging community expectations. They will improve the Australian community’s understanding of the TGA’s regulatory processes and decisions and enhance public trust in the safety and quality of therapeutic goods.

These reforms will also ensure that the TGA is better aligned to the central principles of the National Medicines Policy, by effectively implementing plans to inform the community of its role in providing timely access to the therapeutic goods that Australians need, and that they meet appropriate standards of quality, safety and efficacy.
The response explains that "The reviews were undertaken as part of the commitment to open government". Regrettably, there needs to be more than openness. Despite the invocation of the seven reviews/consultations the response is a tacit admission that the regulatory cupboard is bare. We need to do more to address systemic problems in health administration.

The TGA remains an inward-looking organisation that faces substantive questions about its procedures, recruitment (and consequent expertise) and commitment to a timely, informed and sustained engagement with health problems. It should be of fundamental concern that the ACCC rather than TGA addressed concerns regarding notorious scammer Peter Foster. Handling of hip implants and other devices should also be of major concern, given the impact on individuals and on the overall community through litigation, insurance costs, productivity and pain.

The critique by Ken Harvey of La Trobe University is cogent and commended. The TGA may well endorse the response through its statement that -
The reforms will enhance the regulatory framework, ensuring that it remains adaptable to new scientific developments and emerging community expectations.

They will also improve the Australian community's understanding of the TGA's regulatory processes and decisions and enhance public trust in the safety and quality of therapeutic goods.
As things stand the TGA has committed to a public outreach campaign but trust will remain in doubt until more meaningful changes are made at the agency and legislative levels.

Settling Black Saturday

Reading Thomas v Powercor Australia Limited [2011] VSC 614, concerned with the Victorian Supreme Court's approval of the settlement of a group proceeding (aka class action) regarding the Black Saturday Horsham bushfire.

The Court states that -
On 7 February 2009, Black Saturday, a bushfire started near the intersection of the Horsham-Remlaw Road and Remlaw Station Road, some 7½ kilometres west of Horsham. Over about eight hours, the fire burnt approximately 2,500 hectares. It destroyed 13 homes and many farm buildings and other structures. There was widespread loss of crops, pastures, livestock, yards, fences, trees, smaller vegetation and farm and other equipment. The Horsham Golf Club clubhouse was destroyed and its grounds were razed.

Laurence Peter Thomas, the plaintiff, lives and farms a property with his wife at West Road, Drung. Some parts of his property were damaged or destroyed in the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor coming into contact with vegetation. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998).

On 5 September 2011, the trial of this proceeding commenced before J. Forrest J, sitting in Horsham. The trial proceeded for five weeks. At the close of the fifth week, terms of settlement were provisionally agreed between the parties and the trial was adjourned. At the time of the adjournment, the lay evidence had been completed but expert evidence, which was being given by nine witnesses concurrently, was continuing. It was estimated by the parties that the completion of that concurrent evidence and the closing addresses would require a further five to eight days of hearing.

Terms of settlement of the proceeding have now been executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant’s losses assessed according to certain principles either agreed, or to be determined by the Court, plus penalty interest (from the date of issue of the proceeding) plus party-party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. ... The settlement agreement deals comprehensively with, amongst other things, the amount of the settlement, the notification of claimants, claims assessment procedures, claims assessment principles, the payments of claims and mutual releases.

08 December 2011

Things getting weirder

Some judgements must have been fun to write. A colleague has kindly pointed me to Hedley v Spivey [2011] WASC 325, a nice little christmas pudding of a judgement in the WA Supreme Court.

The case involves an appeal by a self-represented litigant, convicted on a charge of obstructing a WA police officer in the execution of his duty. The judgement states that -
He now seeks leave to appeal, not on any grounds that attack the finding or legal conclusions of the magistrate, but on three grounds as follows:
• Magistrate Benn was wrong in law and in fact when he refused to sit under Chapter 3 of the Commonwealth of Australia Constitution 1901.
• Magistrate Benn was wrong in law and in fact when he failed to swear his oath of allegiance to the Crown in accordance with the 3rd schedule of the Commonwealth of Australia Constitution Act 1901.
• Magistrate Benn was wrong in law and in fact when he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.
McKechnie J notes that
The first day's hearing was unexceptional, but things began to get weird on the second day. When the appellant asked for an adjournment, which was refused by the magistrate, the following interchanged occurred:
MR HEDLEY: Sir, Can I ask you a very simple question, sir? Is this West Australian state part of the Commonwealth of Australia?

HIS HONOUR: It's not for me to give you legal advice, Mr Hedley. That's a matter for you to sort out.

MR HEDLEY: It's not about advice, sir. You live in this country. You've got the Royal Coat of Arms.
Matters got stranger after the next witness was called and the prosecution sought to tender a certificate of title of the Kalgoorlie court building showing the ownership of the building. In crossexamination the appellant asked the following lengthy question of a witness:
so excuse me - the Attorney General is a company ma'am. It is an ABN holder. It is a subsidiary of the Commonwealth of Australian which is registered in the United States in Delaware, in 10 square kilometres of DC. The Attorney General office cannot own his building ma'am. It's a public building. It is meant to be held by the Crown. So have you got any documentation showing the original Crown ownership of this building, ma'am.
McKechnie goes on to state that shortly thereafter:
MR HEDLEY: I also wish to put on the record that this is still sovereign - this is owned by the Sovereign subject Queen Elizabeth II, and this is a Crown building. Because that emblem behind the Magistrate is the royal coat of arms, it dictates this is a Crown building.
There was then an interchange with the prosecutor. The magistrate asked the appellant whether he took exception to the magistrate taking judicial notice of the fact that the building is a courthouse operated by the WA Government through the Department of the Attorney General. The appellant rejected the whole thing:
As in 2004 Jim McGinty changed the name, removed the crown, which you can't - under the Styles or Titles Act (indistinct) - It's felony, treason. So the government now is not the government, sir. The Attorney General is an ABN holder and a company.
And onwards -
Matters then got completely out of control with the appellant attempting to question the magistrate 'wanting his constitutional rights upheld' and the magistrate trying to maintain order.

The hearing seemed to get back on an even keel until the close of the prosecution case. The appellant gave evidence and called witnesses. In due course the magistrate delivered reasons convicting the appellant. Those reasons are not the subject of any ground of appeal. ...

The magistrate proceeded to the sentencing phase. When he came to sentence the appellant, the following interchange occurred:
MR HEDLEY: Sir, can you please provide your certificate of commission and your oath of allegiance, sir, as stated under chapter 3 of the Constitution 1901, sir, to prove your authority to hear, to sit as a Crown court, as you've already mentioned, it is a Crown court?

HIS HONOUR: No, Mr Hedley, I will not, and if you persist in that request, then I will consider you being charged with contempt. So do not

MR HEDLEY: Sir, you are in contempt of this court.
The magistrate was then asked again to produce his authority of commission, 'To prove your authority here in this court.' Things seemed to get very untidy in the courtroom for a period, but when the court resumed, the magistrate accepted the appellant's apology and decided not to proceed with the contempt of court that had been foreshadowed.
The Supreme Court comments, in hearing the appeal against the magistrate's decision, that -
Under the Criminal Appeals Act 2004 (WA), my obligation is only to grant leave if there are reasonably arguable grounds of appeal. The appellant did not file any formal submissions, but he has filed a document entitled Presentation for Scott Hedley in Summation, which I take to be in part his submissions, and I have had the opportunity of reading that. He has annexed to that various extracts of Acts, and the instructions passed under the Royal Sign Manual by Her Majesty Queen Victoria.

He has also filed a document entitled Affidavit of Reservations of Rights, whatever that may be. He has affixed his fingerprint to the document. I assume it is his. I have encountered this before: see Krysiak v Hodgson. It is as meaningless now as it was then.

The appellant's argument in essence is that no Act of Parliament since 1919 has been valid. His argument seems to turn on the instructions by Her Majesty to which I have referred. The appellant's misunderstanding of fundamental Constitutional principles is no doubt behind this submission. However, it is wrong. The State has ample power to make laws for the peace, order and good government of Western Australia. The State is a legal entity under the Constitution of the State and acknowledged under the Commonwealth Constitution, s 106.

The magistrate was quite correct in his appreciation of the law and the appellant would have done well to have followed his judgment instead of lodging these grounds of appeal. Although having heard the appellant, it is clear that he holds these misguided views very strongly. The fact that a person is unrepresented is a misfortune, not a privilege. However, the law does not change because a selfrepresented litigant has limited understanding or knowledge.
Next stop an 'appeal' to Her Majesty or the United Nations?


What's the appropriate balance between personal and community interest, the valorisation of belief systems through cultural exceptionalism in a pluralist liberal democratic state? Last month I noted Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94, a case in the Northern Territory Supreme Court where an Indigenous family successfully sought to prevent an autopsy on an adult road accident victim. This week has seen Evans v Northern Territory Coroner [2011] NTSC 100, in which the Court agreed to prevent an autopsy on a Indigenous minor who may have died from SIDS. The decision contrasts with that by the same court in 2009 noted here.

In the latest case the "sudden and tragic death of a young child at Borroloola" was followed by a preliminary investigation and a subsequent determination, reflecting "expert advice", by the Coroner that it was "necessary for a direction to be given to a medical practitioner to perform an autopsy on the body of the deceased child".

The father of the deceased infant sought an order under s 23(3) of the Coroners Act (NT) that an autopsy not be performed.

The judgement notes that the father of the child was notified of the death
He spoke with the doctor and enquired whether there would be an autopsy. The doctor alerted him to the possibility that he may be able to stop any autopsy from taking place. The father subsequently obtained legal advice and brought these proceedings as a consequence.

In his affidavit filed in support of the application the father advised that he lives a traditional life with his wife and children. He said that he did not want the autopsy to take place as "it is against our way and culture". He explained the processes that would usually follow upon a death and went on to say:
I do not want my son to undergo an autopsy because the Jungayi can refuse to look after him and prepare him for burial. This would be devastating to me and my family.

If the autopsy takes place my son will not be able to enter the spiritual country and be with his ancestral family because his body would not be whole. He will be alone with nowhere to go and no one to look after him. This would be very distressing to me and my family if my son’s spirit had to go on without his ancestors to look after him.
The father expressed concern that if the autopsy took place "bad things will happen to family members" and that his son would be "lost with nowhere to go because our law has been broken".
Riley CJ comments that -
There was no dispute that proceeding with the autopsy would cause the father, the mother, the family of the deceased child and others "great heartache and distress". The views expressed by the father on behalf of himself and his family were clearly, deeply and genuinely held.
The Coroner sought advice from Professor Byard at the Medical School North of the University of Adelaide ("an internationally recognised expert in sudden infant and child death") who
advised that an autopsy was required in order to determine the exact reasons for the death of the child. He pointed out that it is well recognized that infants can have serious and potentially life-threatening illnesses and yet not appear unwell. Unless an autopsy is performed there will usually be no way that these conditions can be identified.
Byard commented that
While SIDS remains the most common cause of unexpected infant death in Western communities, it remains a diagnosis of exclusion, being defined as "the sudden unexpected death of an infant under one year of age, with onset of the fatal episode apparently occurring during sleep, that remains unexplained after a thorough investigation, including performance of a complete autopsy and review of the circumstances of death and clinical history". Thus, unless a full autopsy examination has been conducted according to established guidelines and protocols the term SIDS cannot be used. .... In the absence of an autopsy no cause of death would be determinable and the case would be relegated to the "undetermined" category of cases of this kind. He went on to observe that "the results of autopsies may help the community, both lay and professional, to gain an understanding of issues around such deaths that may be useful in formulating future preventative strategies". ... There is no doubt that the autopsy remains the definitive way of determining the cause of death in infants who have unexpectedly died.
In refusing the autopsy the Court noted that
it is incumbent upon the Court to resolve a conflict between the decision of the Coroner that an autopsy is necessary and the competing wishes of family, relatives or friends of the deceased person generally based upon cultural or religious beliefs that are genuinely and strongly held. In some cases it has been held that ascertaining the precise cause of death is less important than the spiritual and cultural beliefs of the family in the particular circumstances. In Wuridjal v The Northern Territory Coroner I adopted the observations of Beach J in Green v Johnstone where his Honour made observations that have been repeated with approval in a number of cases. His Honour said:
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. ... it is my opinion that the rights of the parents to be spared further grief as a consequence of their daughter's death outweigh the interests of the community that the actual cause of death be ascertained.
In Evans the Court has noted that -
there were grounds upon which the Coroner was justified in requiring a post-mortem examination including an autopsy. The Coroner reasonably believed that it was necessary for an autopsy to be performed. Without an autopsy the cause of death could not, finally, be determined. There is a public interest in knowing the exact cause of death.

On the other hand the public interest in knowing the cause of this death must be weighed against the public interest in giving deeply held spiritual and cultural beliefs proper recognition and respect. In this case I was satisfied that the spiritual beliefs of the family of the child were genuinely held. To perform an autopsy would compound the great grief and distress already being suffered by the family. ... In all the circumstances the likelihood was that the performance of an autopsy would not provide any additional information as to what actually caused the death of the child, although it may have done so. If there was any additional information to be obtained from the autopsy it was likely to be quite limited. The findings resulting from an autopsy were unlikely to contribute in any meaningful way to a better understanding of the death of this child or to contribute in any meaningful way to efforts being made to improve health outcomes for other infants.

In all the circumstances I considered that, in this case, the interests of the family outweighed the public interest in determining the precise cause of death and I ordered that no autopsy be performed.

06 December 2011

Broken Hearts

The Australian Competition & Consumer Commission (ACCC) is seeking comment from the nation's "online dating and romance industry" regarding draft guidelines to combat scams.

The guidelines have been developed by a working group that the ACCC convened after a meeting with industry representatives in July. The expectation is that they will be finalised for a launch in early 2012.

The Commission states that -
Online dating and romance scams cause significant harm to Australian consumers, targeting people from all walks of life, education, background and age group.

Between January and October 2011, more than 1600 complaints and over 17 million dollars in losses have been reported to the ACCC. In 2010 over 15 million dollars in losses were reported.

These scams typically involve a genuine user of a dating website being contacted by a potential admirer who is a scammer in disguise. After forming a relationship with the victim, the scammer plays on emotional triggers to get the victim to provide money, gifts or personal details.
The proposed guidelines are "intended to improve and support the measures taken by dating websites to counter the activities of scammers". They are also meant to provide guidance for industry on how to better protect users from scams.

The ACCC indicates that actions in the guideline involve -
scam warnings and safety information – content and placement online and communication with customers
internal verification processes and procedures in relation to profiles placed on dating websites to detect and disrupt the activities of those seeking to engage in fraud
internal complaints handling procedures.
As you might expect, given the co-regulatory approach embraced by the ACCC and ACMA, the actions in the guidelines "are intended to be flexible and their implementation should be adapted to fit the layout, user base and business model of each dating website".

"Dating and romance website operators" are encouraged to provide comments by 16 December 2011, ie a mere ten days away.

The ACCC indicates that the guidelines cover -
1. Appropriate scam warnings and information
Appropriate scam warnings and information are necessary to educate consumers and raise awareness of the risk of scams. Scam warnings should include simple and direct key messages, as well as examples. Consistent messaging across D&R websites is likely to enhance the effectiveness of these warnings. D&R websites can adapt the wording of these messages and examples to suit their individual needs, while retaining the essential message.

2. Vetting and checking system
A robust vetting and checking system to identify scammers as they attempt to register with the website and following registration is an important tool for D&R websites to disrupt the activities of scammers.

3. Complaints handling procedures
Effective complaints handling procedures are vital for D&R websites to respond to scams. They allow for scammers to be quickly identified and action taken to protect users. Such procedures must be easily accessible to users, responsive to their complaints, and informative.
The specific elements are -
Appropriate scam warnings and information

In order to educate and inform their users, D&R websites should provide information and warning messages about scams. Warning messages should include both key messages and examples in appropriate locations.

Display of warning messages

Warning messages should be clearly and prominently displayed throughout the D&R website in a form likely to be noticed and make an impact on users, such as a banner, sidebar or insert.

Warning messages should be displayed in locations where they will be regularly viewed by users, particularly at ‘points of decision’ where users may be contacted by scammers.

For example, warning messages may be displayed:
1. where members communicate including chat, instant messaging, email and other communication services provided by the website;

2. at any other relevant locations frequently visited by website users.

Content of warning messages

As part of their warning messages, D&R websites should display common key messages to warn their users about the risk of scams.
1. To be most effective, key messages should be simple and direct.

2. Key messages should be appropriate to the area of the website on which they appear.
A set of common key messages for use by D&R websites is at Attachment A. Use of these messages will reinforce the consistency of warnings across the industry. However, websites can also adapt the exact wording of these messages to suit their layout and the needs of their user base.

D&R websites may also develop additional key messages which they consider effective. These messages should also be simple and direct and consistent with those in Attachment A.

In addition to key messages, D&R websites should also display warning messages consisting of examples of scammer conduct. Users are more likely to be responsive to warnings in the form of real situation or story they can recognise.
1. Examples may be displayed in a brief format in the same locations as key messages, or with more detail elsewhere in the website.

2. Steps should be taken to draw the attention of users to these more detailed examples, such as through a link contained in a warning message.
A set of examples of scammer conduct is at Attachment B. However, websites can also adapt the exact wording of these examples to suit their layout and the needs of their user base.

D&R websites are encouraged to develop additional examples based on their own experience of scams.

Websites should also regularly review their examples to ensure they reflect current trends in scammer behaviour and to warn users about new and emerging scams.

It is not expected that all key messages and examples will be displayed together at one time. Instead, key messages and examples should be appropriate to the location where they are displayed and may be part of a rotating set of such messages.

Provision of detailed information

D&R websites should provide their users with access to detailed information on scams. This information may be provided as part of the website, or on a separate dedicated online safety page.

The attention of users should be drawn to this information. For example, the information or a link to the information could be provided:
1. as part of information on how to use the websites provided to new members at the end of the registration process or soon after the new member has joined the website – for example in a ‘welcome’ email or internal message sent to new members;

2. during regular communications with members – such as a newsletter or update service;

3. through links within the D&R website where appropriate.
D&R websites may also display a link to scam information on their homepage.

The detailed information should be sufficient to fully inform users about the risk of scams and how to identify and protect themselves from scams.

This information may include:
1. warning signs when a user is communicating with a scammer;

2. common stories used by scammers when they request money;

3. steps to be taken if a user thinks they have fallen victim to a scam; and

4. any other information relevant to educating users about scams.
The detailed information may be presented in the form of Frequently Asked Questions (FAQ) page.

D&R websites may provide a link to the ACCC’s SCAMwatch website (www.scamwatch.gov.au), which contains information about D&R and other scams, but should also maintain information about scams on their own website.

Detailed information should be regularly reviewed for accuracy and updated to reflect current trends in scammer behaviour.

Mobile websites and Smartphone applications

In addition to websites accessed via a computer and internet browser, some D&R websites maintain versions of their site optimised for viewing on a mobile phone (mobile websites) and/or offer applications (‘apps’) for use with a Smartphone or other device.

D&R websites should display simplified scam warnings on websites or apps designed for mobile devices as appropriate and in keeping with the objective of the guidelines.

Vetting and checking system

D&R websites should implement a robust vetting and checking system to identify scammers as they attempt to register with the website and following registration.

A robust vetting and checking system should consider a range of different characteristics of user profiles, user behaviour and other data in order to identify those profiles which have been created by scammers and remove them from the website.

For example, characteristics which may be checked by such a system include:
1. the language used in the profile, including identification of common phrases used by scammers, common usernames and passwords used by scammers and a prevalence of spelling/grammatical errors

2. checking of profile pictures, to identify common pictures used by scammers

3. checking of Internet Protocol (IP) addresses to identify users registering from outside Australia (where appropriate) or from areas of the world linked to scam activity

4. measures to address the use of proxy servers and other methods to evade IP checking

5. abnormal behaviour by users within the website, such as the volume of messages sent or responded to

6. any other characteristics which are an effective way to identify profiles likely to be created by scammers.
D&R websites should adopt a vetting & checking system that best fits their website structure and level of traffic. Such a system can involve manual or automated checks, or a combination of both.

As the methods used by scammers may change over time, D&R websites should regularly review their vetting and checking system to ensure it remains effective.

Complaints handling procedures

In order to identify scams, gather information and assist affected users, D&R websites should provide complaint handling procedures where users can report a scam and ensure users are aware of this system.

Lodging a complaint

D&R websites should set up mechanisms for users to report suspicious conduct within the D&R website – such as button entitled ‘report a scam’, ‘report abuse’ or other words to similar effect.

Operators may also provide a ‘live help’ feature to respond directly to affected users via chat, instant messaging, Voice Over Internet Protocol (VOIP) or other method.

Referring complaints

D&R websites should implement the following referral process for users who have identified or been affected by a scam:
1. advise users to report the scammer to the website operator first

2. advise users they can report the scam to the ACCC SCAMwatch website – www.scamwatch.gov.au;

3. advise users who have sent money and provided financial details to contact their financial institutions and inform the provider of any service (such as a money transfer service) which they used to send money to the scammer;

4. advise users who have lost money to a scammer to contact their state or territory police force;

5. A template advice to users on what to do if they have fallen victim of a scam is at Attachment D.
As legitimate users may lose access to the website if their profile is hacked or mistakenly removed, D&R website operators should ensure that their customer service staff can be contacted via an alternative that does not require the user to be logged in.

Responding to complaints

Where the user seeks a response, D&R website operators should respond to complaints of scam activity by the end of the next business day. This response should include information on what action the user should take if they have fallen victim to a scam.

Upon receipt of a complaint about scam activity, D&R website operators should investigate the profile alleged to be engaging in scam activity and take appropriate action as soon as possible.

Staff dealing with customer complaints should receive training on the issue of scams.

D&R websites should keep the details of customer complaints confidential and advise their customers that they will do so.

D&R website operators should collect data on complaints about scams in order to monitor the effectiveness of their anti-scam measures and update them when necessary.
1. This data would include the number of complaints, the amount of money reported lost and the type of scam.

2. The data is to be collected from the information provided by the complainant. It does not require D&R websites to seek further information from complainants.