09 February 2012

Cotton Wool Kids?

The Australian Council for Education Research (ACER) has released information on perceptions of safety regarding minors walking (or riding) to school.

ACER comments that
a new study of neighbourhood satisfaction has revealed older residents believe it is safer for children to walk to school than the parents of primary school-aged children believe to be the case

The study, by Australian Council for Educational Research (ACER) Research Fellow Ms Catherine Underwood, examined survey responses from over 800 residents aged 60 years and over and from over 500 parents of students aged 5 to 12 years living in six Victorian municipalities

The survey revealed that 79% of older residents living in metropolitan areas and 69 per cent of those living in regional areas believe it is safe for children to walk or ride to school on their own. In contrast, only 40% of parents living in metropolitan areas and 36% of those living in regional areas agreed that it is safe for their child to travel to school independently.
Regrettably there's no indication from ACER about the extent to which the perceptions match realities (we may well perceive that are reds under the bed and wiccans aloft on broomsticks with kitties but that doesn't necessarily make it so).

There's also no indication of to what extent perceptions are reflected in parental behaviour and in anxiety on the part of minors who've been warned - and warned again - about stranger danger. Cotton wool kids, without the resilience desirable to success in a sometimes turbulent world?

The SMH, having picked up ACER's information (the Council doesn't appear to have released a substantive report), is running with it ... noting instances where parents have been reproved by police for letting the kids out unaccompanied. (The ACT Police alas seem to lack that zeal - or officiousness - in dealing with the decidedly unaccompanied minors who haunt the skatepark near Canberra Uni very late at night.)

ACER goes on to report that -
There was similar disagreement between parents and older residents about whether it is safe for children to walk or ride to the local park or playground. Around 75% of older residents living in metropolitan areas and 68% of those living in regional areas agreed that it is safe for children to do so, compared to only 34% of metropolitan parents and 49% of regional parents.

Ms Underwood said the disparity between parents’ and older residents’ views on whether it is safe for children to independently walk or ride through their neighbourhood appears to be reflected in their perceptions of the danger presented to children by strangers.

‘Stranger danger’ was seen as a barrier to children’s independent outdoor activity by 44% of metropolitan older residents and 51% of regional older residents.

Concern about ‘stranger danger’ was much higher among parents, with 76% of parents living in metropolitan areas and 71% of parents living in regional areas indicating that it is the most significant barrier to their child’s physical activity in the neighbourhood.
It would be interesting to see data from a more in depth study of parental and community perceptions of 'stranger danger', given several decades of research indicating that minors are significantly more likely to experience sexual assault, physical violence or other injury from intimates (parents, siblings, cousins, uncles, family friends, the parish priest) than from the stereotypical stranger.

ACER states that
Road safety was the second most significant barrier identified by parents.

Around half of the parents surveyed (44% of metropolitan parents and 51% of regional parents) agreed that there is a lot of traffic along most nearby streets, making it difficult or unpleasant to go for walks. Here, older residents’ responses were closer to parents’, with 31% of metropolitan older residents and 38% of regional older residents agreeing that heavy traffic makes it difficult or unpleasant to walk.
One of this blog's crueller readers responded to ACER's "Opinion split on walking to school" headline with the quip "Opinion split on usefulness of research" ... and on its enthusiastic embrace by the mass media.

Family Violence

The Australian Law Reform Commission has released its 541 page report [PDF] on Family Violence and Commonwealth Laws — Improving Legal Frameworks (ALRC report 117).

The report calls for a common interpretative framework, with inclusion in Commonwealth laws of the same core definition of family violence -
systemic benefits would flow from the adoption of a common interpretative framework across the specified legislative areas, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers. Importantly, it should also enhance consistency in the treatment of family violence across the legislative frameworks, reinforced by appropriate and regular training.

The common interpretative framework recommended in Family Violence — A National Legal Response is based on a core definition of family violence, describing the context in which behaviour takes place, as well as the types of conduct — both physical and non-physical — that may fall within the definition of family violence. The context, set out in the first part of the definition, is violent, threatening or other behaviour that coerces or controls a family member or causes that family member to be fearful. The second part of the definition provides a non-exhaustive list of the types of behaviour that may constitute family violence.
The report discusses disclosure and issues management, noting tools and methods that may be used to identify family violence-related safety concerns. It recommends that
Department of Human Services (DHS) staff providing customer services should facilitate the disclosure of family violence-related safety concerns by providing information about how family violence may be relevant to a person’s social security, child support and family assistance case, at the point of registration and at subsequent intervention points.

The identification of family violence-related safety concerns should result in an appropriate issues management response, which may include referral to a Centrelink social worker or other expert service providers. To assist with this, and to reduce the need for a customer to re-disclose, the ... DHS should consider developing and implementing a ‘safety concern’ flag to be placed on a customer’s file where family violence-related safety concerns are identified. This flag should be available to relevant agencies subject to informed consent of the customer and with appropriate privacy safeguards.
In dealing with Social Security the report comments that the Australian social security system is based on four key principles -
1. it is based on need—measured by reference to the income and assets of the applicant;

2. it is fair and reasonable to expect unemployed people receiving income support to do their best to find work, undertake activities that will improve their skills and increase their employment prospects and, in some circumstances, contribute something to their community in return for receiving social security payments and entitlements;

3. relationship status determines eligibility and rates of payment — a person who is a member of a couple receives a lower social security payment than one who is single; and

4. residence is a requirement to preserve social security benefits for those settled in the Australian community.
To ensure fairness in administration of the social security system and to provide a level of self-agency, greater transparency and consistency is required in relation to the information a person can rely on to support a claim of family violence. The ALRC therefore recommends that a broad range of types of information should be available and establishment of defined ‘intervention points’ at which Centrelink should promote disclosure of family violence. Centrelink procedures should be included in social security legislation or the Guide to Social Security Law, rather than Centrelink’s e-reference, which is not publicly available.

In discussing the impact of family violence on relationships the ALRC notes that relationships are inherently difficult to define, but recognises that the effect of family violence may not always be considered appropriately in social security decisions regarding relationships. Recommendations in Chapter 6 aim to ensure that the impacts of family violence are expressly considered in social security decisions through amendments to the Social Security Act 1991 (Cth) and the Guide to Social Security Law. It notes that
Family violence is relevant to proof of identity and residence requirements attached to certain social security payments. The requirement to provide original proof of identity documents and tax file numbers can create a barrier for persons experiencing family violence to obtain access to social security payments and entitlements. Similarly, residence requirements may mean that certain visa holders or newly arrived residents are unable to access independent financial assistance through the social security system and therefore may not have adequate financial support to enable them to leave a violent relationship.
Chapter 8 concerns determining capacity to work, with improved administration and content of the 'capacity to work' tools and processes to protect the safety of victims of family violence. The chapter also
examines ways in which Job Services Australia (JSA)—the national employment services system—Disability Employment Services (DES) and the Indigenous Employment Program (IEP) systems respond to the needs of job seekers experiencing family violence. The ALRC recommends that the Department of Education, Employment &Workplace Relations (DEEWR), as contractor of JSA, DES and IEP providers, should ensure that providers appropriately and adequately consider the existence of family violence when tailoring service responses.
The report makes recommendations to ensure that a person’s experience of family violence is adequately considered in negotiation and revision of requirements for activity-tested social security payments and the granting of exemptions from such requirements. Chapter 9 considers barriers to accessing Crisis Payment and urgent payments, with recommendations to provide better protection for victims of family violence, including removing the requirement for Crisis Payment that either the victim or the person using family violence must have left the ‘home’. It recommends amending the Social Security Act 1991 (Cth) to ensure that family violence can be taken into consideration in decisions to waive the repayment of a social security debt—for example, where the debt was incurred due to economic abuse or duress by a family member.

In dealing with the contentious issue of Income Management the report notes that -
‘Income management’ is an arrangement under the Social Security (Administration) Act 1999 (Cth) by which a proportion of a person’s social security and family payments is quarantined to be spent only on particular goods and services, such as food, housing, clothing, education and health care. The aim, as indicated by the Department of Families, Housing, Community Services & Indigenous Affairs, is to ensure that ‘income support payments are spent in the best interests of children and families and helps ease immediate financial stress’.
The ALRC identifies three broad issues that arise in relation to the ways in which income management affects victims of family violence:
the appropriateness of compulsory income management to victims of family violence;
applying voluntary income management to victims of family violence; and
practical issues that victims of family violence face in accessing necessary funds.
The report consequently recommends introduction of a flexible and voluntary form of income management—an ‘opt-in and opt-out’ model—to better protect the safety of people experiencing family violence. It examines practical issues arising in relation to accessing income managed funds.
The ALRC considers that to reflect the underlying principles of accessibility and self-agency articulated in Chapter 2 of the Report, at the very minimum it is necessary to ensure that victims of family violence are able to access and control their income management account—whether through a BasicsCard, voucher or other form of payment or credit. In particular, the limited definition of ‘priority needs’ is contrary to these principles and poses particular difficulties for victims of family violence. The ALRC therefore recommends that the Australian Government should amend the definition of ‘priority needs’ in s 123TH of the Social Security (Administration) Act 1999 to include travel or other crisis needs for people experiencing family violence. In light of difficulties with the income management account system and BasicsCards, the ALRC also suggests that the Government should review the existence and operation of these in the course of any introduction of an opt-in and opt-out income management model.
In discussing Child Support and Family Assistance the report notes "the major point of intersection between the child support and family assistance legislative schemes: the ‘reasonable maintenance action’ requirement" (to receive more than the minimum rate of Family Tax Benefit (FTB) Part A, eligible parents must be in receipt of child support). It suggests that Family violence exemptions are a key protective strategy for victims of family violence in both child support and family assistance contexts.
Exemptions enable victims to opt out of obtaining child support payments—where this would place them at risk—without a consequent reduction to their FTB Part A payments. Due to this significant protective role, the ALRC recommends that exemptions should be set out in family assistance legislation.
Further information about exemptions should be contained in the Family Assistance Guide.

The current framework for family assistance comprises a range of payments and is primarily governed by two statutes: A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Chapter 14 discusses the family assistance framework and the ways that it addresses family violence, focusing on the two primary family assistance payments—Family Tax Benefit (FTB) and Child Care Benefit (CCB). Chapter 14 recommends reforms specifically targeted at family assistance law and policy, particularly in relation to CCB—to improve access to increased CCB in cases of family violence (including child abuse), by lowering the eligibility threshold where children are at risk of abuse.

In relation to Employment Law the ALRC calls for a "national and phased approach" -
Family violence is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. Accordingly, effective measures to address family violence need to operate in both the private and public spheres. This is particularly so in the context of employment, as the line between private and public—or family life and work—is increasingly unclear. As one stakeholder ... commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.

Chapter 15 examines the intersections between family violence and Commonwealth employment law and, together with Chapters 16–18, recommends reforms to employment-related legislative, regulatory and administrative frameworks to improve the safety of people experiencing family violence. The ALRC suggests a phased implementation of the reforms outlined in Chapters 15–18 as follows:
Phase One — coordinated whole-of-government national education and awareness campaign; research and data collection; and implementation of government-focused recommendations.
Phase Two — continued negotiation of family violence clauses in enterprise agreements and development of associated guidance material.
Phase Three — consideration of family violence in the course of modern award reviews.
Phase Four—consideration of family violence in the course of the Post-Implementation Review of the Fair Work Act 2009 (Cth).
Phase Five—review of the National Employment Standards (NES) with a view to making family violence-related amendments to the right to request flexible working arrangements and the inclusion of an entitlement to additional paid family violence leave.
In discussing the Fair Work Act the ALRC characterises that statute as "the key piece of Commonwealth legislation regulating employment and workplace relations", noting that it "establishes a safety net comprising: the NES, modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO)". The report accordingly considers
potential reform of the Act, its institutions, and agreements and instruments made under the Act. The ALRC suggests ways in which these institutions and their processes may function to protect the safety of those experiencing family violence. In addition, Chapter 16 examines:
family violence clauses in enterprise agreements—the ALRC concludes the Australian Government should support the inclusion of family violence clauses and recommends that the FWO should develop a guide to negotiating such clauses;
individual flexibility arrangements in enterprise agreements—the ALRC considers the appropriateness of individual flexibility arrangements (IFAs) in circumstances where an employee is experiencing family violence and recommends that the FWO should include information on negotiating an IFA in such circumstances in existing guidance material;
modern awards—the ALRC considers ways in which modern awards might incorporate family violence-related terms and suggests this should be considered in the course of the modern award reviews to be conducted by FWA in 2012 and 2014; and
the general protections provisions under the Fair Work Act—the ALRC recommends that prior to the Australian Government considering inclusion of a family violence-related ground under the general protections provisions, the Australian Human Rights Commission (AHRC) should examine the possible inclusion of a family violence-related protected attribute under Commonwealth anti-discrimination law.
Chapter 17 considers possible amendments to the NES. Minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses. As a result, as part of Phase Five of the ALRC’s suggested strategy for phased implementation of reforms contained in [the] Report, the ALRC recommends that the Australian Government should consider amending the NES. In particular, the ALRC recommends that there should be consideration of: whether family violence should be included as a circumstance in which an employee should have a right to request flexible working arrangements; and whether additional paid family violence-related leave should be included as a minimum statutory entitlement under the NES.
The report notes that occupational health and safety (OHS) laws are "being harmonised across Australia, with a Model Act, Model Regulations and Model Codes of Practice forming the basis of the harmonised OHS regime from 1 January 2012". Chapter 18 examines ways in which the Commonwealth OHS system protects employees experiencing family violence and, where it does not do so, how that might be addressed. The chapter examines:
legislative duties of care; the nature and role of regulatory guidance; the importance of further consideration of family violence as a possible work health and safety issue, including research and data collection; as well as increased awareness, education and training around family violence and its impact as a possible work health and safety issue.
The central premise underlying Chapter 18 is that, where family violence is a possible OHS issue, employees should be given the highest level of protection reasonably practicable, and employers should introduce measures to address family violence and create and sustain safe work environments. The chapter 18 contains two main approaches to the issue of family violence as a possible work health and safety issue. First, under the Commonwealth OHS system, legislative and regulatory duties appear to be sufficiently broad to capture some circumstances in which family violence may affect an employee in the workplace. In these instances, in terms of employer obligations, the risk posed by family violence is analogous to the risk posed by other forms of workplace violence. As a result, lack of knowledge, rather than legislative inadequacies, represent the greatest challenge in such instances and so improving awareness and understanding of family violence as a possible OHS issue is the focus of reforms.

The ALRC makes a range of recommendations focused on: increasing awareness of family violence and its impact as a possible work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area.

Secondly, in instances in which it is more difficult to establish that family violence would engage an employer’s duty of care or be covered by existing OHS law, for example where it is more analogous to psychosocial hazards, the ALRC recommends that additional research be undertaken in this area. In particular, the ALRC recommends that Safe Work Australia should identify family violence as a research priority, examine the effect of the harmonised OHS regime on duties and obligations owed in relation to family violence as a possible OHS risk and consider ways to extent and improve data coverage, collection and analysis in this area.

The ALRC notes that superannuation, as a form of long-term saving for retirement, "serves an important role and, for many Australians, is one of the most significant forms of wealth", with successive governments having introduced measures to maintain and enhance superannuation savings, largely through compulsory superannuation membership and contribution and preferential tax treatment. Chapter 19 examines ways in which the Australian superannuation system does, or could, respond to protect those people experiencing family violence. In doing so, the ALRC makes a number of recommendations, but also acknowledges the specific role that superannuation plays as a long-term form of savings and recognises the policy tension between the need to preserve superannuation benefits until retirement and the need, in limited circumstances, to allow early access to superannuation funds.
The first part of Chapter 19 deals with circumstances in which a victim of family violence may have been coerced into taking action in respect of their superannuation and considers spousal contributions and self-managed superannuation funds (SMSFs). The ALRC concludes that the treatment of superannuation should be considered in the context of a wider inquiry into how family violence should be dealt with in respect of property proceedings under the Family Law Act 1975 (Cth). The ALRC also makes a number of suggestions with respect to compliance action taken in relation to SMSFs and recommends changes to guidance material with respect to establishing, managing and winding up a SMSF.

The second part of the chapter examines circumstances in which a victim of family violence may wish to seek early access to superannuation benefits, for example, for the purposes of leaving a violent relationship. In considering early release on the basis of severe financial hardship, the ALRC recommends amendments to the eligibility requirements for making an application and to guidance material for decision makers in granting early release. The ALRC also considers early release of superannuation on compassionate grounds and makes recommendations in relation to guidance material and training for decision makers.
The report also considers migration, commenting that -
The policy challenge in the area of migration is to ensure accessibility to the family violence provisions for genuine victims of family violence while preserving the integrity of the visa system, given that attaining permanent residency in Australia is highly sought after.

Partner visas form part of Australia’s family migration stream, allowing non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or permanent resident. All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident. The Migration Regulations 1994 (Cth) include an exception in the case of family violence, which provides for the grant of permanent residence notwithstanding the breakdown of the spouse or de facto relationship on which their migration status depends. In Chapter 20 the ALRC makes recommendations to improve the accessibility of the family violence exception for victims — in particular, to expand the exception to cover secondary applicants for onshore permanent visas.

A non-citizen who wishes to enter Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage visa (Subclass 300), that allows for entry into Australia for a nine-month period, within which the marriage must take place. After the marriage, an application can be made for permanent residence on the basis of the married relationship. The ALRC recommends that holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence but who have not married their Australian sponsor should also have access to the family violence exception.

The ALRC also recommends targeted education and training for visa decision makers, competent persons and independent experts, as well as better information dissemination for prospective visa applicants and visa holders in relation to legal rights, and family violence support services, prior to and upon arrival in Australia.
The report wraps up with a discussion of evidence, centred on the evidence required to support a claim under the family violence exception. It notes the clear policy tension between the principles of accessibility and system integrity.
If evidentiary requirements are too strict and rigid, it may prevent access to the family violence exception for genuine victims. On the other hand, if evidentiary requirements are not sufficiently robust, there is scope for fraudulent claims or other abuse of the family violence exception for migration outcomes. This was an area identified by stakeholders as being in need of substantial reform.

The ALRC recommends a new model for dealing with non-judicially determined claims of family violence. The key recommendation is for the Migration Regulations to be amended to provide that any evidence—in addition or as an alternative to statutory declaration from ‘competent persons’—can validly support a non-judicially determined claim of family violence. In addition, the ALRC recommends that the prescriptive requirements governing statutory declaration forms from competent persons in reg 1.26 should be repealed, allowing applicants to bring a wide range of evidence in support of their family violence claim. Where the visa decision maker is not satisfied that an applicant has suffered family violence, referral can be made to an independent expert within the Department of Human Services (Centrelink).

Such a system will increase accessibility and flexibility to victims of family violence while maintaining the need for robust scrutiny of evidence. In particular, integrity measures are reinforced through building on moves towards specialisation within the Department of Immigration and Citizenship (DIAC) and retaining the mechanism for referral to an independent expert.

The area of judicially-determined claims of family violence has proven less problematic in practice. Here, the ALRC recommends the repeal of the requirement contained in reg 1.23 of the Migration Regulations that the violence, or part of the violence, must have occurred while the relationship was in existence.
Partners of temporary visa holders

A number of temporary or provisional visas provide a pathway to permanent residency—that is, to be eligible for a permanent visa, a person must have previously held a temporary or provisional visa. For secondary visa holders of temporary visas, the ALRC recommends—in Chapter 20—that a new temporary visa be created to allow victims of family violence to remain in Australia for a period of time to access services and make arrangements to return to their country of origin or to apply for another visa.
The associated discussion of refugee law notes that Australia is a signatory to the UN Convention Relating to the Status of Refugees (the Refugees Convention), the key international instrument that regulates the obligations of states to protect refugees fleeing from persecution. Chapter 22 considers the position of asylum seekers who seek protection in Australia as refugees on the basis of having experienced family violence.
While family violence claims can fall under the definition of a refugee as contained in the Refugees Convention, this remains a complex area of the law marked by inconsistent decision making.

The ALRC recommends that the Minister for Immigration & Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) in relation to family violence in refugee assessment determinations. Such a direction should refer to guidance material on family violence contained in DIAC’s Gender Guidelines. The Gender Guidelines should be the subject of ongoing, comprehensive and periodic review.

The ALRC recommends that DIAC amend its instruction, Ministerial Powers—Minister’s Guidelines — s 48A cases and requests for intervention under s 48B, in the Procedures Advice Manual 3 to refer to secondary visa applicants who are the victims of family violence.

These recommendations are intended to improve consistency in decision making, and to ensure that procedures allow for, and support victims in, making family violence claims under the Refugees Convention.

Copyright Review

The Australian Attorney-General has announced a new review of the Copyright Act 1968, to be headed by the excellent Jill McKeough -
University of Technology Sydney Dean of Law, Professor Jill McKeough will lead an Australian Law Reform Commission (ALRC) review into the operation of copyright in the digital environment.

“In our fast changing, technologically driven world, it’s important to ensure our copyright laws are keeping pace with change,” Attorney-General Nicola Roxon said.

“I’m delighted to announce the appointment of Professor McKeough to lead this inquiry and provide advice to government on the effectiveness of our copyright laws.

“Professor McKeough’s expertise in intellectual property, consumer protection and commercial law, make her eminently qualified to lead this in-depth review of the Copyright Act.

“The Gillard Government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy including via the National Broadband Network.

“The inquiry will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the fast paced digital environment,” Ms Roxon said.

Draft terms of reference will be released for consultation shortly.


'Informing and Reforming the Marketplace of Ideas: The Public-Private Partnership for Data Production and the First Amendment' (Uni of Wisconsin Legal Studies Research Paper No. 1189) by Shubha Ghosh notes that -
In 2011, the Supreme Court held that the First Amendment applied to the commercialization data in Sorrell v. IMS. While the case at issue dealt with state regulation of pharmacy data, the Court's holding extends to regulation of data in many contexts from government created databases to search engines and social media sites. This Article contains a critique of the decision, emphasizing that the majority and dissent take polar opposite positions without adequately addressing the normative foundations for data regulation and the institutional arrangements within which such regulation occurs. The critique provides a normative framework for the free flow of data and information that takes into consideration classic liberal principles, autonomy principles, and fairness. This normative framework is used to analyze the regulatory structures within data commercialization occurs, including intellectual property law, state law on open records, and information access initiatives. The Article offers three examples drawn from disputes involving tax assessment data, the data transparency projects of the Obama Administration, and protection of databases in Europe, to illustrate the issues raised by the Sorrell decision.
Ghosh concludes that -
As the Supreme Court's analysis in its 2011 Sorrell decision, the marketplace of ideas is grounded in the free flow of data and information. While the majority viewed this marketplace in laissez-faire terms, the dissent recognized that the marketplace for data is created through a network of government regulations and policies. Unfortunately, however, neither the majority nor the dissent addressed adequately either the normative framework for the marketplace of ideas or the regulatory structures that make the generation and exchange of data possible. This paper fills both of those gaps.

The normative framework for the marketplace of ideas requires a consideration of class liberal principles with regards to freedom and rules, of autonomy with respect for individual notions of privacy, and of fairness with respect to distribution across individuals. The First Amendment as a check on communication of data and information needs to adequately balance these three notions with more weight applied to one or two of these principles depending upon the context. The majority in Sorrell emphasized the concept of autonomy by deciding in favor of a laizzez-faire [sic] view of the marketplace of ideas. The dissent leaned towards the classic liberal position with an emphasis on the market harms that arise from a concentrated market for data arising from the market power of pharmaceutical companies in targeting doctors. Neither adequately balanced the principles nor fully considered fairness to patients and consumers in the analysis. Such consideration may have produced a more nuanced set of decisions, as opposed to ones that turned on the dichotomy between free markets and regulation.

Neither majority nor the dissent addressed the network of government regulation that makes communication of data possible. The dissent came closer to acknowledging this network but focused largely on food and drug regulation. As set forth in this paper, however, the network is more complex, consisting of intellectual property laws as well as state and federal regulations of information provided to and used by administrative agencies. This set of regulations give rise to a host of compelling legal problems involving the use of data from the sale of tax assessment records to the open government initiatives under the Obama Administration. This paper details this set of information and shows that the free speech concerns raised in Sorrell may be quite extensive. Given the varied contexts for the commercialization of data, the laissez-faire approach adopted by the majority may not do justice to the range of regulatory issues and governmental interests.

How government can both create and regulate the dissemination of data and information will continue to be a policy issue. Private companies see data as a resource for exploitation at the same time that data is generated through the panoply of transactions and regulations that define our lives. The Sorrell majority decision leads to an unregulated market for data. This paper has made the case that the dissent's views may become more salient once we recognize the complex web of governmental interests that inform data commercialization.


The Australian Institute of Health & Welfare (AIHW) has released a 127 page report [PDF] on Juvenile detention population in Australia 2011 (Juvenile justice series no. 9).

The report notes that
In Australia, the state and territory governments are responsible for dealing with young people involved in crime. Most young people in the juvenile justice system are either supervised in the community or are unsupervised, but some are detained. This report presents information on the number of young people in detention in 2011 and describes recent trends in the detention population.

Around 1,000 young people are in detention throughout Australia

On an average night in the June quarter of 2011 there were 1,055 young people in detention. Over one-third (36%) were detained in New South Wales. Almost half (48%) of those in detention were unsentenced, and in most states and territories, between 43% and 68% were unsentenced. The exception was Victoria, where just 22% were unsentenced.

Rates of detention are stable

On an average night in the June quarter 2011, there were 0.35 young people aged 10–17 per 1,000 in juvenile detention throughout Australia, compared with 0.33 per 1,000 in the June quarter 2007. There was little change in the rates for unsentenced and sentenced detention.

Throughout the 4 years to 2011, detention rates were highest in the Northern Territory, where they ranged from 0.75 per 1,000 to 1.78 per 1,000, and lowest in Victoria, where they ranged from 0.10 per 1,000 to 0.16 per 1,000.

Indigenous young people are over-represented in all states and territories

On an average night in the June quarter 2011, an Indigenous young person aged 10–17 was 20 times as likely to be in unsentenced detention and 26 times as likely to be in sentenced detention as a non-Indigenous young person.

This over-representation was highest in Western Australia, where an Indigenous young person aged 10–17 was 29 times as likely to be in unsentenced detention and 50 times as likely to be in sentenced detention as a non-Indigenous young person in the June quarter 2011. In the remaining states and territories for which an over-representation ratio could be calculated, an Indigenous young person aged 10–17 was between 18 and 22 times as likely to be in unsentenced detention and between 16 and 22 times as likely to be in sentenced detention as a non-Indigenous young person. Levels of over-representation were not calculated for states and territories where there were fewer than 5 Indigenous or 5 non-Indigenous young people aged 10–17 in detention.

Indigenous young people were over-represented throughout the 4 years, although the level of Indigenous over-representation fell for both unsentenced and sentenced detention.

08 February 2012

von Hannover again

The European Court of Human Rights (ECHR) has released its judgment in Case of Von Hannover v. Germany (no. 2) (Applications nos. 40660/08 and 60641/08).

The 'von Hannover' is Princess Caroline of Monaco, litigant in von Hannover v Germany (2004) 40 EHRR 1, the landmark European Union privacy case.

The current case originated in two applications against the Federal Republic of Germany lodged with the Court under Article 34 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms by Monegasque national Princess Caroline von Hannover and German national Prince Ernst August von Hannover on 22 August and 15 December 2008 respectively. The applicants alleged that the refusal by the German courts to grant an injunction against any further publication of photos of them infringed their right to respect for their private life as guaranteed by Article 8 of the Convention.

Princess Caroline and her husband Ernst August von Hannover had taken exception to publication by Frau im Spiegel magazine of a photographs showing them on a skiing holiday in St Moritz in 2002. The photo was accompanied by an article on Caroline's ailing father Prince Rainier of Monaco, which included the statement -
The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter St├ęphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monacans saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the Saint Devote celebration held in honour of the national patron saint. The country is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St. Moritz with Prince Ernst August von Hannover) and Princess St├ęphanie take it in turns to look after their father. He must not be left alone at home when he is not well. Not without his children’s love.
The German courts held that the report concerned a topic of general interest and that the public had a legitimate interest in learning about the behaviour of Rainier's children during his illness.

In the first instance the German Federal Court of Justice indicated that although the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area of his/her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with Ms Hannover's consent. A second photo exclusively related to her private life and - because it only served entertainment purposes - could not be published without her consent. However, the Court noted that although another photo - that at the heart of the dispute decided by the ECHR - contained "no information having any connection with an event of contemporary society or contributing to a debate of general interest", the accompanying text was of public interest -
The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.
Accordingly, the Hannovers were not able to prevent publication of the photo. In particular nothing about the actual photo had constituted a violation of privacy; there was nothing to suggest that the photo had been taken surreptitiously or through use of an illicit surveillance device that would have rendered its publication unlawful. That conclusion was endorsed on appeal to the German Federal Constitutional Court.

Princess Caroline and her husband disagreed, claiming that the refusal by the German courts to grant an injunction against any further publication of the photos infringed the right to respect for their private life guaranteed by Article 8 of the European Convention on Human Rights.

The ECHR concluded that -
The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken.

The Court also observes that the national courts explicitly took account of the Court’s relevant case-law. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the Federal Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court’s case-law in response to the applicants’ complaints that the Federal Court of Justice had disregarded the Convention and the Court’s case-law.

In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision.

Surveillance Studies

the miasmas of theory and academic jargon are on occasion just as much a barrier to understanding the 'surveillance state' as obfuscation or omission by government agencies.

'Critical Surveillance Studies in the Information Society' by Thomas Allmer in 9(2) tripleC - Cognition, Communication, Co-operation (2011) seeks to "clarify how we can theorize and systemize economic surveillance". Allmer comments that -
Surveillance studies scholars like David Lyon stress that economic surveillance such as monitoring consumers or the workplace are central aspects of surveillance societies. The approach that is advanced in this work recognizes the importance of the role of the economy in contemporary surveillance societies. The paper at hand constructs theoretically founded typologies in order to systemize the existing literature of surveillance studies and to analyze examples of surveillance. Therefore, it mainly is a theoretical approach combined with illustrative examples. This contribution contains a systematic discussion of the state of the art of surveillance and clarifies how different notions treat economic aspects of surveillance. In this work it is argued that the existing literature is insufficient for studying economic surveillance. In contrast, a typology of surveillance in the modern economy, which is based on foundations of a political economy approach, allows providing a systematic analysis of economic surveillance on the basis of current developments on the Internet. Finally, some political recommendations are drawn in order to overcome economic surveillance. This contribution can be fruitful for scholars who want to undertake a systematic analysis of surveillance in the modern economy and who want to study the field of surveillance critically.
Allmer's formula - an algrebra of surveillance - is a hoot.

'Being Watched Watching Watchers Watch: Determining the Digitized Future While Profitably Modulating Preemption (at the Airport)' by Matthew Tiessen in 9(1/2) Surveillance & Society (2011) is similarly inward looking, with the requisite genuflections to the guru du jour. Tiessen comments that -
Gilles Deleuze once wrote in “Postscript on the Societies of Control” (1992) that in the future (our present) our societies would be controlled or “disciplined” using subtly unobtrusive and strategically applied forms of “modulation.” That is, the rigid physical enclosures of Foucault’s disciplinary society would inevitably yield to more flexible, immaterial, and imperceptible forms of modulation that continually respond and adapt to life’s unpredictability. In this paper I describe how the use of naked body scanners at today’s airport is a most suitable expression of this dematerialized form of discipline, seeming at the same moment to both threaten and protect privacy, to be both non-intrusive and invasive, to both prepare for and determine seemingly unknowable but inevitable futures.

The flying public, meanwhile, is caught in the confusing middle, not knowing what to believe. They find themselves trapped in an undefined surveillance grid that both threatens and protects their freedoms. Will the scanners see through clothing and catch underwear-bombs, or won’t they? Will security agents scan, save, and distribute their naked images or won’t they? The public is left with questions rather than answers. This whole (visual) apparatus which was designed to create clarity and transparency seems opaque.

I suggest, then, that the opacity both of the issues at stake as well as of the scanned images of our naked bodies, confounds our categories and challenges long taken for granted social conventions about, for example, habeas corpus, privacy, security, the present, the future, potentiality, etc. Appearances, it seems, are still deceiving – even if what’s being made to appear are high-resolution scans of our naked bodies.

07 February 2012


I've been rereading 'A note on the facticity of animal trials in early modern Britain; or, the curious prosecution of farmer Carter’s dog for murder' by Piers Beirne in Crime, Law and Social Change: An Interdisciplinary Journal (2011) after being reminded by a colleague of the 'Hartlepool Monkey' case.

Beirne states that
For a century or so there has been a lively debate on the meaning of animal trials in early modern and medieval Europe. One unresolved issue in this debate is the geographical and jurisdictional incidence of animal trials, including their facticity in Britain. This essay explores some neglected evidence in this regard, namely, three British animal trials identified in E.P. Evans’ (1906/1987) authoritative text The Criminal Prosecution and Capital Punishment of Animals.

From the imposition of Norman law in the late eleventh century and onwards, the significance of nonhuman animals to human social relationships is routinely documented in Britain in official state papers, judicial records and law books. From these it is clear that nonhuman animals — henceforth, “animals” — were used and abused by humans in the course of numerous aspects of British state formation including, for example, military practices, transport and the introduction of horse-powered postal and espionage systems. Animals’ importance is confirmed, too — ironically woven together with their sinews and clad in their skins for the eyes of posterity — as state-sanctioned manuals and regulations associated with the cultivation of wished-for husbandry methods, the regulation of so-called game, vermin and animal waste products, and the development of commodity markets in cattle, fish and woollens. On the smaller stage of everyday life, if often with no less drama, animals’ ubiquitous presence in humans’ social life is reflected in official records of interpersonal disputes to do with fences, wills, contracts and an emergent law of private wrongs.
He goes on to comment that -
a strong caution must be issued, namely, that the question of whether or not animal trials existed in Britain cannot be resolved at a purely empirical level. This is so not least because any accounting requires proper conceptual identification of the basic characteristics of animal trials. Whether there were precisely 191 animals trials in medieval and early modern Europe — as portrayed in Evans’ list, with one of this number in Scotland and two in England — or 91 or 1001, depends to a crucial extent on how a trial is defined. Do the characteristics of these trials lie in some Weberian-like construct whose legal thought can be categorized as formal and rational and whose institutions are staffed and enforced by a professional cadre of judges, lawyers, bailiffs and gaolers?

Instead, might trials also consist in institutions of conflict resolution that are less formal and more ad hoc and impromptu? In this respect, consider, for a moment, a legend in the old fishing town of Hartlepool, County Durham, about some local fishermen who had hanged a monkey. During the Napoleonic Wars (1799–1815), at a time when many coastal dwellers feared a naval-led invasion from across the ‘English’ Channel, a French ship was apparently wrecked off Hartlepool in a violent storm. The ship sank and, looking through the wreckage, Hartlepool fishermen came across the ship’s sole and very wet survivor — a pet monkey dressed in a military-style uniform At a special trial held on the beach the fishermen questioned and perhaps tortured the monkey, mindful that the animal might be a French spy. The monkey was duly found guilty of espionage, sentenced to death by hanging, and to that end a makeshift gallows was summarily erected from a ship’s mainmast. (The Hartlepool legend perhaps has some credibility because, according to the Act Concerning Wrecks of the Sea, 1275, all ships and goods forced on shore were not to be considered wreckage if “a Man a Dog or a Cat escape quick out of the Ship” — in such cases the contents of the ship were to pass into the possession of members of the town where the goods were found).
The monkey might, of course, have been an unfortunate cabin boy.


I'm watching the dawn come up at a friend's house and digesting Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, the interlocutory order that's presumably soon to be considered by the full bench of the Federal Court. The order concerns the copyright dispute between Telstra and Optus (the dominant Australian telcos) over streaming of broadcasts of football games to a range of devices.

The NRL and AFL - representing the football clubs in the two largest football competitions - have granted Telstra the exclusive licences to communicate matches to the public via the internet and mobile devices. That licencing involves substantial revenue. Last year Optus began offering its 'TV Now' service, enabling users to record free-to-air television programs for replay on compatible devices: Apple devices, MS-based personal computers, Android devices and 3G devices. That service reflected the timeshifting for personal use provisions in the Copyright Act 1968 (Cth), under which domestic consumers are allowed to make a copy of free to air broadcasts for subsequent personal viewing (ie not on a commercial basis). The recorded content delivered by Optus under its service was held in the Optus cloud - its servers - rather than on the device used by Optus' customers. Optus's terms & conditions for consumers using TV Now specified that its customers would comply with s 111 of the Copyright Act, ie copying solely for private and domestic use.

Convergence remains a work in progress and as yet there is no full compatibility between devices such as a MS Windows personal computer and an iPhone. As a result TV Now involved multiple copies of the free to air broadcast, specific to the particular type of device, with the consumer receiving a streamed recording. In practice the Optus customer initiated 'recording' of the broadcast by through an electronic program guide. Optus then generated four unique recordings (one for each type of device) of the selected program for the personal use of the consumer. A subsequent request to access the content - ie to play the recording - resulted in Optus streaming the relevant copy to the corresponding device. Access varied: consumers with PCs, Android and 3G devices needed to wait until after the broadcast had concluded (eg the match had to finish before you could see any of the recording), whereas consumers with Apple devices could watch the action with only a short delay (within about two minutes of what was happening on the field). Consumers with any of the devices under the Optus service could view the recording within 30 days of the original broadcast.

The football leagues, claiming the service infringed their copyright in broadcasts, forecast an injunction against Optus. The telso responded with action in the Federal Court, claiming there had been unjustified threats of infringement under s 202 of the Copyright Act 1968 (Cth) regarding some live and recorded NRL and AFL matches of September and October 2011. Telstra, as exclusive licensee, was later added as a party.

Telstra and the two leagues as copyright holders alleged that Optus in making cinematograph films under s 10(1) of the Act infringed their interests in the free to air broadcasts and communicated the infringing recordings to users of its service for viewing on the consumer's devices. Optus unsurprisingly contended that it customers had made the films or copies, with those users not infringing because of the s 111 timeshifting exception (ie the provision for private and domestic recording).

Rares J of the Federal Court considered seven issues -
1. Who performed the acts involved in recording the NRL broadcasts, AFL broadcasts and AFL films ('the Copyright Works') for the operation of the TV Now service?

2. Does s 111 mean that the recording was not an infringement of copyright? If section 111(2) does not apply, is Optus liable for copyright infringement by way of authorisation?

3. When the recording was viewed, who did the acts of electronically transmitting the Copyright Works?

4. When recordings were streamed to a user, was this a communication 'to the public'?

5. Did Optus make the Copyright Works available online?

6. If the answer to 5 is 'yes', was this to the public?

7. Is the digital file comprising the NRL footage streamed to users an 'article' within the meaning of s 103 or an 'article or thing' within the meaning of s 111(3)(d) and, if so, was it distributed for the purpose of trade?
The Court's conclusion was that service did not infringe copyright in the broadcasts of the AFL and NRL games in the particular ways alleged by the rightholders.

In relation to the question of who did the recording the finding was that the consumer made each recording of a broadcast by clicking on the device's 'record' button. Rares J indicated that the consumer was solely responsible for the creation of the recording: each TV Now user decided whether to make the recording and only that user had the means of being able to view them. If the user did not click 'record', no recording would be brought into existence for subsequent play. Rares J indicated that the service was substantially similar to use of a VCR, DVR or similar device to copy a free to air television broadcast. Optus provided all the significant technology for making, keeping and playing the recording but the consumer's agency was no different to that where an individual utilised technology at home to legitimately record a broadcast.

Rares J was satisfied that recording the broadcasts was not an infringement of copyright, given s 111(1) and (2) of the Act. The evidence suggested that individual TV Now users watching a broadcast or film of a football game or television program on their mobile device or PC would only be doing so for personal pleasure or interest. In particular the Court noted that the consumers agreed with the terms and conditions of the TV Now service limiting use to a non-infringing use that complied with s 111(1). Rares J indicated that watching a broadcast 'near live' (through an Apple device) was consistent with the definition of 'private and domestic use'. It will be interesting to see whether the free to air broadcasters respond by seeking a statutory fix.

In considering whether Optus communicated the recording when the TV Now user played it the Court held that the users were responsible for any such communication by seeking to play the programs they had earlier selected for recording. That responsibility reflected the shape of the TV Now service, with the consumer determining the content of any streaming to them of a recorded program. The situation of a TV Now user clicking 'play' was "quite unlike" that of someone browsing the net who was unaware/uncertain of what content may be delivered by clicking on a link. The TV Now user had previously determined that what would be recorded; by seeking to play the recording the consumer determined that their device would display the recording just as if they had inserted a video cassette or DVD into a VCR or DVD player and pressed 'play'.

Was the communication to the public? Rares J held that no communication 'to the public' occurred. The fact that the user may be with one or more other persons, such as family members or friends, when the communication is received will not, ordinarily, convert its private and domestic nature to being that of a communication 'to the public'. When the user made the recording and when that consumer made the communication of it, no infringement occurred. The digital file streamed to the TV Now user was not an infringing 'article' or 'article or thing'.


'Reversing the Privacy Paradox: An Experimental Study', presented by Victoria Groom & M. Ryan Calo at last year's US Telecommunications Policy Research Conference (TPRC 2011), represents -
a collaboration between a privacy scholar and a PhD in human-computer interaction aimed at testing the efficacy of user experience as a form of privacy notice. Notice is among the only affirmative requirements websites face with respect to privacy. Yet few consumers read or understand privacy policies. Indeed, studies show that the presence of a link labeled “privacy” leads consumers to assume that the website has specific privacy practices that may or may not actually exist.

One alternative to requiring consumers to read lengthy prose or decipher complex symbols is to influence a user’s mental model of the website directly by adjusting the user interface. Use of particular design elements influences users’ cognitive and affective perceptions of websites and can affect behaviors relevant to privacy.

We intend to present the results of an ongoing, experimental study designed to determine how strategies of “visceral notice” compare to traditional notice. Drawing on a rich literature in human-computer interaction, social psychology, and cognitive psychology, we examine whether website design features can instill in people a more accurate understanding of information practice than a privacy policy.

The experimental study features a between-participants design manipulating a single factor — design feature — with eight unique conditions. The eight design features include two instances of traditional notice: a link to a typical privacy policy, and a link to privacy policy featuring simplified language and an intuitive presentation of information. Visceral notice features were inspired by strategies identified in the social psychology literature to affect attitudes and behaviors associated with privacy. These strategies include self-awareness, informality, and anthropomorphism. A control condition with no privacy policy or design feature will also be evaluated.

Study participants will be assigned to use one of eight websites, each with a distinct design feature. Approximately 120 participants will be recruited online and complete the study at their personal computer, promoting external validity. Participants will be told they are evaluating a search engine, and must use the website’s search engine to find answers to a quiz.

Our study design enables the collection of both behavioral data and users’ cognitive and attitudinal evaluations of the site. We will measure user navigation behavior, the disclosure of personal data, such as home town, and the disclosure of incriminating personal experiences, such as downloading pirated music. Using a post-task questionnaire, we will determine participants’ mental models of the website’s data usage and policies, as well as participants’ evaluations of the website’s likely use of their personal information.

These measures will enable us to compare the effects of each of the eight design features on perceptions of privacy. We will compare traditional notice strategies with visceral notice strategies. While traditional notice is the current standard under the law, we anticipate visceral notice strategies will prove superior in eliciting accurate perceptions of the website’s information policies, and will generate less disclosive behavior. We will discuss the implications of the study’s results for both law and design.
They conclude that -
The research presented highlights the weaknesses of explicit notice. It is not surprising that current legal regulations promote reliance on explicit notice. Explicit notice is relatively easy to enforce  because web providers must simply post information to be in compliance. Yet legal requirements of notice do not require any impact on user behavior or attitude - and, indeed, privacy policies generally achieve neither.
Visceral notice strategies, in contrast, provably affect privacy-related behaviors such as  disclosure and concern.
Clearly more study is warranted, but visceral notice strategies may prove a useful replacement for or, more likely, supplement to explicit notice in many settings.

06 February 2012


The UK House of Commons Home Affairs Committee has published a report on The Roots of Violent Radicalisation, warning about right-wing extremism and the significance of the net "as one of the most significant vehicles for promoting violent radicalism - more so than prisons, universities or places of worship". Given hyperbole about the net the report also notes that "direct, personal contact with radicals is in many cases also a significant factor", although commenting that witnesses told the Committee the internet plays "a part in most, if not all, cases of violent radicalisation".

The report is essentially an expression of conventional wisdom. It notes that although the UK government has statutory powers under the Terrorism Act 2006 allowing law enforcement agencies to order the removal of unlawful material from the internet, the Committee recommends that ISPs should be more active in monitoring hosted material. The expectation is that agencies will provide the ISPs with appropriate guidance, advice and support. The Government should also work with ISPs to develop a code of practice for removal of material that promotes violent extremism and provide more support to civil society groups that want to challenge on-line extremist material.

The Committee emphasises -
• the need for better liaison and information-sharing between prison authorities, the police, the UK Border Agency and other relevant authorities following the release of prisoners who have been convicted of terrorist offences or who are otherwise considered to be at risk of violent radicalisation.
• the importance of reviewing the list of proscribed organisations - the prospect of de-proscription could in certain circumstances create an incentive for organisations to renounce their support for violence.
• the threat from the far-right, "which consists mostly of solitary, disaffected individuals rather than organised terrorist units".
The report was promoted by the Committee chair with the statement that -
The July 7th bombings in London, carried out by four men from West Yorkshire, were a powerful demonstration of the devastating and far-reaching impact of home-grown radicalisation.

We remain concerned by the growing support for non-violent extremism and more extreme and violent forms of far-right ideology.

The conviction last week of four men from London and Cardiff radicalised over the internet, for a plot to bomb the London Stock Exchange and launch a Mumbai-style atrocity on the streets of London, shows that we cannot let our vigilance slip. More resources need to be directed to these threats and to preventing radicalisation through the internet and in private spaces. These are the fertile breeding grounds for terrorism.

We do not believe universities are “complacent to the risks” of radicalisation as has been suggested. Those engaged in public life must ensure that the language they use reflects the same tone.

Individuals from a wide variety of backgrounds are vulnerable to radicalisation. There is no typical profile or pathway to becoming radicalised. It is a policy of engagement, not alienation that will successfully prevent radicalisation.
In discussing universities the report states that -
In the Prevent Review, the Government drew a link between university education and terrorist activity, but our evidence suggests that there may be a much less direct link than was thought in the past, and a recent Home Office document suggests that individuals involved in violent extremism are little different to others around them in terms of their education. The Prevent Review says this:
More than 30% of people convicted for Al Qa'ida-associated terrorist offences in the UK between 1999 and 2009 are known to have attended university or a higher education institution. Another 15% studied or achieved a vocational or further education qualification. About 10% of the sample were students at the time when they were charged or the incident for which they were convicted took place. These statistics roughly correspond to classified data about the educational backgrounds of those who have engaged recently in terrorist-related activity in this country: a significant proportion has attended further or higher education.

We believe there is unambiguous evidence to indicate that some extremist organisations, notably Hizb-ut-Tahrir, target specific universities and colleges (notably those with a large number of Muslim students) with the objective of radicalising and recruiting students.
The Henry Jackson Society , whose staff carried out some of the analysis on which this was based, highlighted several specific cases:
• at least four individuals involved in acts of terrorism in the UK were senior members of a university Islamic Society (Kafeel Ahmed, Waseem Mughal, Yassin Nassari and Waheed Zaman);
• Omar Sharif, a suicide bomber in Tel Aviv in 2003, was radicalised during his first year at King's College London after he attended Hizb-ut-Tahrir meetings on campus;
• Anthony Garcia, convicted for his role in the 2004 'fertiliser' bomb plot, attended religious talks in the late 1990s at the University of East London Islamic Society; and
• Mohammed Naveed Bhatti, convicted for his role in Dhiren Barot's 2004 'dirty bomb' plot, was studying at Brunel University and met Barot in the university's prayer room.
However, Universities UK expressed concern that:
Simplistic linkages have been made between violent radicalisation and the fact an individual has attended university without acknowledgement that the radicalisation process is far more nuanced and difficult to predict ...

What is not taken into account is that the proportion of young men now participating in higher education stands at 41%, a fact that indicates that attending university may actually reduce the risk of vulnerability to violent radicalisation.
A Home Office Rapid Evidence Assessment of open source empirical studies published more recently found that individuals involved in Islamist violence "tend to be educated to a similar level ... as the broader population in which they live".

When asked whether attending university meant an individual was more at risk of extremism, Professor Geoff Petts, representing Universities UK replied that universities "acknowledge the threat, but we do not see evidence to support that". Nabil Ahmed, of the Federation of Student Islamic Societies, added:
There are various myths surrounding the issue of campus extremism. There is far too much sensationalism and insufficient evidence or expertise in this wider discussion ... There is a notion that campuses are hotbeds of extremism, which is unfounded in the expertise and experience of the sector and the experience of students. There is a notion that, just because these people who have gone on to become terrorists went to university, in some way those two things are connected—the evidence suggests not. There was an independent inquiry, for example, into the case of Umar Farouk Abdulmutallab, who went to UCL, which showed that he was not actually radicalised at university.
Professor Petts argued that the evidence that extremist groups were actively targeting universities was "circumstantial" and Nabil Ahmed said that he had not come across any instances of campus preaching that would be in breach of British law. Other students we met through SOAS, including practicing Muslims, were adamant that they had not encountered anyone on campus who supported terrorism.

Hannah Stuart of the Henry Jackson Society said that she understood why the Federation of Students Islamic Societies felt the need to defend Muslim students against the media focus on them, but pointed out that Umar Farouk Abdulmutallab was a former president of his University's Islamic Society, who had been convicted in the US in October 2011 for a failed bomb attack on an aircraft. She said:

I think it is not just about the admittedly very small number of Muslim students who have gone on to commit terrorist acts but it is about the atmosphere that is created sometimes on campus by Islamic societies or other organisations who consistently invite a certain type of speaker that does not reflect the plurality of Islam in this country.

Charles Farr claimed that the Prevent Review had not stated that terrorists themselves were active recruiters in universities, but rather that the Government was concerned about people "who are speaking regularly against core UK values and whose ideology incidentally is also shared by terrorist organisations" and the fact that this appeared to be going unchallenged. Other witnesses gave examples of such individuals who were allowed to speak on campus, for example Raed Salah, who is banned from entering the UK for his anti-semitic views but was admitted to the country by mistake in June 2011, and Al Qa'ida supporter Anwar Al-Awlaki who, we were told, addressed a UK university by video link.

Professor Neumann undertook a study in 2007 for the European Commission which came to the conclusion that:
Like prisons or like the internet, universities were places of vulnerability ... because you get people of a certain age, often away from home for the first time, often feeling quite lost and often experiencing a sort of crisis of identify and so on. That makes it easy for extremist groups to pick them up.
In discussing the internet and radicalisation the report commented that -
Many of our witnesses cited the internet as the main forum for radicalisation. Sir Norman Bettison, the Association of Chief Police Officers' lead for Prevent, told us that "the internet does seem to feature in most, if not all, of the routes of radicalisation". It was regarded as particularly dangerous as it was now one of the few unregulated spaces where radicalisation is able to take place. According to the Home Office, the internet "plays a role in terms of sustaining and reinforcing terrorist ideological messages and enabling individuals to find and communicate with like-minded individuals and groups". This seemed to be contradicted by more recent Home Office-commissioned research, which concluded that the internet "does not appear to play a significant role in Al Qa'ida-influenced radicalisation". Even those witnesses who attributed a significant role to the internet tended to support that report's conclusion that some element of face-to-face contact was generally essential to radicalisation taking place, including with regards to the extreme far right, but by definition this does not deal with the issue of self radicalisation which by its very nature takes place in isolation and concerns have been expressed about the impact of 'Sheikh Google' on individuals who may be vulnerable, but have not been identified as starting on a journey of self radicalisation ...

The Home Office launched a Counter-Terrorism Internet Referral Unit in 2010 to investigate internet-based content which might be illegal under UK law and take appropriate action against it, although Sir Norman Bettison described it as "a pebble thrown into the World Wide Web ocean". It had received 2,025 referrals thus far, about 10% of which led to websites or web pages being taken down. Sir Norman believed that the referral site needed greater publicity which would in turn require greater capacity: at the time of our inquiry it consisted of around a dozen officers. Charles Farr told us:
Every internet service provider (ISP) has acceptable behaviour codes for use on their systems. So having that conversation, even where the website is operating in a broadly legal space, is not unusual for them. Governments all around the world have those conversations with ISPs every day, and the public will very often make their own representations to ISPs about particularly unacceptable content that may still be legal on websites around the world.
He later clarified that Governments would only make representations if websites were breaching the law.

Under the Terrorism Act 2006, if a law enforcement agency approached a hosting provider in respect of the Act's provisions regarding liability for hosting terrorist content, they would be compelled to take it down and if an internet service provider failed to remove the content upon receipt of a valid notice under section 3 of the Act, it would be committing an offence.[101] The Internet Service Providers' Association argued that:
When section 3 notices of the Act are invoked to remove material then there is no issue; when they're not invoked it becomes more problematic. As in other areas, ISPs are not best placed to determine what constitutes violent extremism and where the line should be drawn. This is particularly true of a sensitive area like radicalisation, with differing views on what may constitute violent extremist.
Professor Neumann, who co-authored Countering Online Radicalisation for the International Center for Radicalisation in 2009, told us that the Government had implemented a number of their recommendations:
One of our recommendations was to bring strategic prosecutions—not necessarily taking down websites but to prosecute the people who are producing the content for the websites. That has happened, to some extent. There is also a mechanism that the Government have introduced for deciding what kind of content should be taken down and that has also been done. Most importantly, we believe that there is no technical solution to this problem and that this problem needs to be addressed differently, and the Government have followed us there.
However, he considered that more remained to be done:
The most profitable way for any Government to address this problem is to bring political pressure, in some cases, to bear on internet providers-big internet companies who are hosting extremist videos in places like YouTube, Google, Facebook ... They do that to some extent but they could do it more consistently. I believe that, for example, all the measures that have been taken by YouTube to clean up its act have always been in response to political pressure, both from the United States and the United Kingdom ...

This is not about freedom of speech. All these websites, whether it is YouTube or Facebook, have their own rules. They have acceptable behaviours. They all say, "We are against hate speech" and they are very effective in removing sexual content or copyright content. Why can they not be equally effective at removing, for example, extremist Islamist or extremist right-wing content? Primarily, I believe it is because it is not in their commercial interest and that is why it is so important that politicians and Governments bring political pressure to bear.
The Internet Service Providers' Association argued that it would be "impractical" for ISPs to be expected to proactively monitor material, given the sheer volume of content online, as well as undesirable, given the implications for freedom of expression.

Assistant Chief Constable John Wright, the National Prevent Coordinator for the police, added that there was a need for greater international cooperation, given that most of the websites are hosted outside the UK's jurisdiction. The Internet Service Providers' Association confirmed that if material was hosted outside of the UK, a UK intermediary would be unable to remove it. They agreed that "to improve this, greater international cooperation could be explored, although what constitutes violent extremist under the law in one country is not necessarily the same elsewhere."

Given the impossibility of comprehensively controlling the internet, it is necessary to employ other methods to tackle the issue. Alyas Karmani argued:
If you are thinking about banning the internet, you have just got to provide a counter-narrative. That is what we do at STREET, so what we do is we identify their narrative and then you have to put an equally effective counter-narrative, because if you ban one site, 10 others emerge, and the sophistication of various ideologues in terms of promoting on the internet and through social media is highly proficient.
The Government has been attempting to counter terrorist ideology, this work being led by the Research, Information and Communications Unit at the Home Office; however, Charles Farr admitted that: "Getting that message across ... to a group of people who would rarely read the media that we would normally work with, is very challenging". The Government's focus will be on "increasing the confidence of civil society activists to challenge online extremist material effectively and to provide credible alternatives."

Jamie Bartlett was also concerned that children were not developing the skills that would enable them to sift critically material on the internet:
A lot of the information that looks very trustworthy and accurate—and people tend to go on aesthetics of websites—is absolutely bogus but we are not taught this in schools because it has happened so quickly. People are not being taught in school how to critically evaluate internet-based content and I think that is one of the biggest weaknesses that we face at the moment.
The Counter-Terrorism Internet Referral Unit does limited but valuable work in challenging internet service providers to remove violent extremist material where it contravenes the law. We suggest that the Government work with internet service providers in the UK to develop a Code of Conduct committing them to removing violent extremist material, as defined for the purposes of section 3 of the Terrorism Act 2006. Many relevant websites are hosted abroad: the Government should also therefore strive towards greater international cooperation to tackle this issue.

Given the impossibility of completely ridding the internet of violent extremist material, it is important to support defences against it. We support the Government's approach to empowering civil society groups to counter extremist ideology online. The whole area of communications technology and social networking is complex and extremely fast-moving. A form of interaction that is commonly used by thousands or even millions of people at one point in time may only have been developed a matter of months or even weeks earlier. It follows that legislation and regulation struggle to keep up and can provide a blunt instrument at best. Leaders in fields such as education, the law and Parliament also need to be involved. Evidence taken by this committee in regard to the riots in London last August showed that some police forces have identified social networks as providing both challenges and opportunities, with the message from one chief constable that the police recognised that 'we need to be engaged'. In respect of terrorism, as in respect of organised crime, the Government should seek to build on the partnership approach to prevention that has proved successful in the field of child abuse and child protection.

05 February 2012

Regulatory realignment

The TGA, the Australian counterpart to the US FDA and other regulators of pharmaceuticals and medical devices, has belatedly announced that it will do further testing of breast implants.

Previous posts in this blog have noted the TGA's bureaucratic incapacity, with suggestions that it lacks the will and/or wherewithal to proactively address substantive concerns regarding the safety of devices (eg breast implants, artificial hip joints, stents) , alternative medications such as Sensaslim (associated with a notorious scammer) and the production of mainstream pharmaceuticals. The TGA's initial response to revelations about injury in French-manufactured implants was dismissive. Not our problem. Not here. The organisation is now shifting ground, with the ABC reporting that
start a new batch of tests on breast implants that were the subject of a national safety recall almost two years ago.

In April 2010, the TGA recalled PIP breast implants after French authorities discovered that the manufacturer had been caught substituting an unauthorised silicone gel in the breast prosthesis.

The gel had not been tested for safety in humans.

The renewed activity by the watchdog comes amid growing concern about the health risk the PIP implants pose to women.

Late last year the French government recommended 30,000 women with the implants have them removed, while British government says it will remove the implants if women want them removed. ...

In June 2010 the TGA conducted a range of laboratory tests on eight PIP samples they had obtained from Medical Vision Australia.

The samples tested had expiry dates over just three different years, which indicates the testing was not extensive. ...

On January 4 the TGA said the reported rupture rate of PIP implants was just 0.4 per cent
Let's not celebrate too quickly.
the TGA's assurances over the rupture rate have come under fire from a former TGA adviser, Professor John McNeil from the School of Public Health at Monash University.

Professor McNeil says the TGA should not be reporting rates of rupture based on such flimsy data.

He says the TGA was relying on a spontaneous system of reporting which was not mandatory and therefore an inadequate tool with which to calculate a rupture rate.

Asked if the statement about a 0.4 per cent rupture rate provided false sense of reassurance for women, Professor McNeil said, "Yes, but it's a false reassurance".

In recent days, the TGA has played down its pronouncements on the rupture rate, preferring to emphasise confirmed ruptures.

The TGA's acting national manager, Dr Brian Richards, says the TGA is not moving away from its statements, but the shift is to provide better information to women and doctors.

In the meantime, Perth plastic surgeon Dr Timothy Cooper says he has conducted a study of all his patients whom he implanted PIP breast prosthesis and discovered a rupture rate of 20 per cent. ...

In early 2011, the French also discovered that the silicone in the implants failed intradermal irritation tests in rats, fuelling fears that the implants were the cause of inflammation in women's tissue that doctors and women were reporting.

The TGA did not mention that the PIP implants had failed this irritation test until last month, a year after the test results were published by French authorities.

The TGA says it is now in the process of conducting its own intradermal irritation tests in the PIP implants and the results will be made public soon.
Time to ask some hard questions about the TGA's operation and its history of misplaced reassurance.


'Naming, Identity, and Trademark Law' by Laura Heymann in (2011) 86(2) Indiana Law Journal 382-444 comments that -
As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of anonymous sources by established journalists may be viewed as unethical. Supreme Court jurisprudence both touts the benefits of anonymity and decries it as a barrier to the free flow of information. In the commercial realm, consumers file suit when the memoir they have purchased turns out to be largely fiction but seem far less concerned when a company emerges from a public relations disaster with a new name, leaving its old one to the dustbin of history.

This conflicted response may be further complicated by the fact that we think about names in a very personal way, as a core part of our identity. But names are not, strictly speaking, our identity - they are merely symbols of our identity that denote a particular set of characteristics at a particular time. Indeed, as naming theory tells us, the denotative function of a name is what makes a word a name at all. It is for this reason that an individual or a corporation can adopt a new name without being accused of fraud and why a company can sell products under more than one trademark.

Naming law - whether the law of personal names or the law of trademarks - tends to reflect these principles of naming theory. In large part, the law focuses on a name or mark’s denotative effect, interfering only when confusion or changes to the essential nature of the referent renders the name’s identifying function uncertain. And, indeed, in the instances when the law is inconsistent with naming theory - attempting to regulate the connotations associated with names rather than their denotative function - we might question whether it is achieving an appropriate goal. Confining naming law to this important but limited function achieves a balance between respecting the autonomy of individuals and entities to choose the names with which they represent themselves to the public and ensuring that such choices do not significantly frustrate the flow of information that allows the public to engage in decision making