31 March 2012

Reading SNS

'The Perils of Social Reading' by Neil Richards - forthcoming in (2013) 101(3) Georgetown Law Journal - comments that -
Our law currently treats records of our reading habits under two contradictory rules – rules mandating confidentiality, and rules permittingdisclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise. 
This Article sounds a cautionary note about social reading and frictionless sharing. Social reading can be good, but the ways in which we set up the defaults for sharing matter a great deal. Our reader records implicate our intellectual privacy – the protection of reading from surveillance and interference so that we can read freely, widely, and without inhibition. I argue that the choices we make about how to share have real consequences, and that “frictionless sharing” is not frictionless, nor it is really sharing. Although sharing is important, the sharing of our reading habits is special. Such sharing should be conscious and only occur after meaningful notice. 
The stakes in this debate are immense. We are quite literally rewiring the public and private spheres for a new century. Choices we make now about the boundaries between our individual and social selves, between consumers and companies, between citizens and the state, will have unforeseeable ramifications for the societies our children and grandchildren inherit. We should make choices that preserve our intellectual privacy, not destroy it. This Article suggests practical ways to do just that.


'The sex industry in New South Wales' (Kirby Institute for Infection and Immunity in Society) - a 48 page study [PDF] by Basil Donovan, Christine Harcourt, Sandra Egger, Lucy Watchirs Smith, Karen Schneider, Handan Wand, John Kaldor, Marcus Chen, Christopher Fairley & Sepehr Tabrizi - examines the health and welfare outcomes of legislative reforms affecting the NSW sex industry.

The report's key findings are -
  • Sydney has a diverse and open sex industry. Compared to other Australian cities Sydney’s sex industry is commensurate with the size of its population. NSW men are infrequent consumers of commercial sexual services, with only 2.3% purchasing sexual services in any one year, similar to the Australian average. The number of sex workers in Sydney brothels was similar to estimates from 20 years ago. These data confirm that the removal of most criminal sanctions did not increase the incidence of commercial sex in NSW. 
  • Despite several remaining laws against prostitution related activities, offenses finalised in the NSW courts were overwhelmingly concentrated on the street-based sex industry. A third of those who were prosecuted were male clients of street workers. Over the seven year period, 2000 to 2006, there were no prosecutions against several prostitution laws. 
  • Sydney brothels are widely dispersed in inner urban and suburban areas, and they attract few complaints from neighbours. Because of difficulties in gaining development approval from local councils many Sydney brothels operate without approval, they are often small with poor occupational health and safety standards, and may masquerade as massage parlours. There are periodic reports of local government corruption, but no evidence of widespread police corruption around sex work.
  •  Compared to sex workers surveyed in Melbourne’s licensed brothels and in Perth, brothel-based female sex workers in Sydney were better educated, and were more likely to have been born in an Asian or other non- English speaking country. In contrast to these other cities, the Sex Workers Outreach Project (SWOP) and the Multi-cultural Health Promotion team at the Sydney Sexual Health Centre have been actively working with and have had full access to this sector for 20 years. As a result the migrant sex workers in Sydney have achieved similar excellent levels of sexual health as their local counterparts. 
  • Condom use at work approaches 100% in Sydney brothels and when the LASH team tested the Sydney sex workers the prevalence of four STIs – chlamydia (2.8%), gonorrhoea (0), Mycoplasma genitalium (3.6%), and trichomoniasis (0.7%) – was at least as low as the general population. 
  • In general Sydney brothels workers enjoyed levels of mental health that were comparable to the general population. However, 10% of the Sydney women were found to be severely distressed on psychological testing (the Kessler-6 scale): twice as often as the general population. Psychological distress was strongly associated with injecting drug use.
On that basis the research team offers several recommendations -
  • The NSW Government’s legislative reforms of 1979 and 1995 should be endorsed. These reforms that decriminalised adult sex work have improved human rights; removed police corruption; netted savings for the criminal justice system;and enhanced the surveillance, health promotion, and safety of the nsw sex industry. International authorities regard the nsw regulatory framework as best practice. Contrary to early concerns the NSW sex industry has not increased in size or visibility, and sex work remains stigmatised. 
  • Licensing of sex work (‘legalisation’) should not be regarded as a viable legislative response. For over a century systems that require licensing of sex workers or brothels have consistently failed – most jurisdictions that once had licensing systems have abandoned them. as most sex workers remain unlicensed criminal codes remain in force, leaving the potential for police corruption. Licensing systems are expensive and difficult to administer, and they always generate an unlicensed underclass. That underclass is wary of and avoids surveillance systems and public health services: the current systems in Queensland and Victoria confirm this fact. Thus, licensing is a threat to public health. The department of planning, in consultation with local government, community representatives, and the health department, should endorse planning guidelines for brothels. The inadequacies of council responses to brothel development applications can be addressed by the state Planning Department endorsing the Sex Services Premises Planning Guidelines 2004, with appropriate updates and amendments. 
  • Decriminalisation of the adult sex industry means that prime responsibility for the industry has moved from the police to local government. Local government should be resourced by the state for this role, and supported by workCover. Decriminalisation in NSW has been associated with many local governments refusing to approve development applications for brothels. This has resulted in substantial legal costs and, in isolated instances, corruption by local government officials. Refusing development applications has also fostered the growth of brothels masquerading as massage parlours. overseeing brothels to ensure compliance with occupational health and safety standards requires suitably qualified staff, perhaps best managed by WorkCover. Workcover should implement a system of active staff and performance management in the compliance area, and develop a rigorous review and audit system for the compliance function with a high-level manager overseeing the process. 
  • The NSW Ministry of Health should commission a review of clinical and health promotion services available to sex workers. Our suggestion is that the process be led by the STI Programs unit in consultation with the sex workers outreach Project (SWOP) and the Kirby institute. The current high levels of occupational safety and historically low levels of sexually transmissible infections (STIs) in most sex workers provides an opportunity to rationalise and better target health service provision where it can provide the greatest benefit; for example, new brothel workers and street-based sex workers. clinical screening and health promotion guidelines should be evidence-based and distinguish between higher and lower risk sex workers. data on the sexual health of regional and rural, aboriginal, street-based, male, and gender diverse sex workers should be sought and collated. 
  • The NSW Government, in consultation with local government and street work communities, should investigate more effective and humane approaches to the problems posed by street-based sex work. Street-based sex work is politically challenging everywhere, and nsw is not exceptional, as traditional working areas become gentrified. street sex workers are among the most traumatised people in the sex industry. Though they are the smallest component of the industry, street sex workers are the major target for police prosecutions because of their high visibility. The aim of the investigation should be to explore methods of reducing the street presence and vulnerability of sex workers by means such ensuring an adequate supply of indoor alternatives; including approving brothels, and supporting more ‘safe house’ facilities;
  • Consideration should be given to supporting research into the health and welfare of nSw sex workers outside Sydney; including the structure and determinates of the industry, and the knowledge, experience and behaviour of the workers. The LASH and Sydney Sexual Health Centre (SSHC) studies were limited to urban female brothel- workers in Sydney. Parts of regional NSW have significant numbers of sex workers, many of whom are in contact with regional sexual health services. such research could inform clinical service delivery and health promotion programs;
  • For health and safety reasons and in order to meet best practice in a decriminalised environment the word ‘brothel’ as defined in the legislation, should not apply when up to four private sex workers work cooperatively from private premises.All of the evidence indicates that private sex workers have no effect on public amenity. exempting this group from planning laws that pertain to brothels will limit the potential for local government corruption. The New Zealand experience provides a successful precedent for the four worker model.

30 March 2012

Parody and Parentage

'It’s just a joke: Defining and defending (musical) parody' by Paul Jewell and Jennie Louise in (2012) 10(2) Australian Review of Public Affairs 1  [PDF] states that -
Australia has recently amended copyright laws in order to exempt and protect parodies, so that, as the Hon. Chris Ellison, the then Minster for Justice told the Senate, ‘Australia’s fine tradition of poking fun at itself and others will not be unnecessarily restricted’. It is predicted that there will be legal debates about the definition of parody. But if the law, as the Minister contends, reflects Australian values, then there is a precursor question. Is there anything wrong with parody, such that it should be restricted? In our efforts to define parody, we discover and develop a moral defence of parody. Parody is the imitation of an artistic work, sometimes for the sake of ridicule, or perhaps as a vehicle to make a criticism or comment. It is the appropriation of another’s original work, and therefore, prima facie, exploits the originator. Parody is the unauthorised use of intellectual property, with both similarity to and difference from other misappropriations such as piracy, plagiarism and forgery. Nevertheless, we argue that unlike piracy, plagiarism and forgery, which are inherently immoral, parody is not. On the contrary, parody makes a positive contribution to culture and even to the original artists whose work is parodied.
Not perhaps an item that IP law students will be rushing to read - a legal specialist might rework the title as "It's just thin" - but of interest nevertheless.

There's more controversy in the report [PDF] by the Victorian Parliament's Law Reform Committee regarding Inquiry into Access by Donor-Conceived People to Information about Donors.

The Committee was asked to consider -
 a) the legal, practical and other issues that would arise if all donor-conceived people were given access to identifying information about their donors and their donor-conceived siblings, regardless of the date that the donation was made;
b) the relevance of a donor's consent or otherwise to the release of identifying information and the National Health & Medical Research Council's ethical guidelines on the use of assisted reproductive technology in clinical practice and research;
c) any practical difficulties in releasing information about donors who provided their gametes before 1 July 1988, because in many cases records are not available either because the procedure was carried out privately or records were not stored centrally;
d) the options for implementing any changes to the current arrangements, including non-legislative options;
e) the impact that any such changes may have on the donor, the donor-conceived person and future donor programs;
f) the impacts of the transfer of the donor registers currently held by the Infertility Treatment Authority to the Registrar of Births, Deaths and Marriages; and
g) the possible implications under the Charter of Human Rights and Responsibilities Act 2006.
Its report states several findings -
1: Some donor-conceived people suffer substantial distress when they are unable to obtain information about their donor, and/or if told of their donor-conceived status later in life. .
2: Current arrangements for access to information by people conceived from gametes donated prior to 1988 are confusing, inconsistent, and applied in a haphazard manner. Outcomes differ depending on the treating clinic, and/or the treating physician, from which a person’s parents received treatment.
3: Current legislative arrangements pertaining to rights of access to information by people conceived from gametes donated after 1998 are satisfactory.
4: The introduction of measures to provide all donor-conceived people with access to identifying information will require legislative change.
5: The circumstances of donor-conception and adoption with regard to a person’s right to identifying information are largely comparable.
6: All donor-conceived people should be aware of the manner of their conception. A person’s parents should be principally responsible for informing that person of his or her donor-conceived status.
7: Donors have a wide range of views on the desirability of allowing the release of identifying information about them to their donor-offspring. Most donors empathise with the needs of donor-conceived people, but some express concern about the potential for their family life to be affected should identifying information about them be released.
8: If current arrangements permitting donor anonymity are changed to allow the release of identifying information, measures to protect donors and donor-conceived people from unreasonable interference in their private lives should be considered.
9: All donor-conceived people should have access to identifying information about their donors.
10: Current provisions of the Assisted Reproductive Treatment Act 2008 allowing donors to seek identifying information about children conceived from gametes donated after 1988 should not be extended retrospectively to allow donors to seek identifying information about children conceived from gametes donated prior to 1988.
The report comments that
Currently, donor-conceived people have different rights in this regard, depending upon the date of donation of the gametes from which they were conceived. Assisted reproductive procedures help people to conceive a child through a means other than sexual intercourse. Donated gametes are often used in these procedures where partners have had difficulty conceiving, when a person carries a hereditary disease or genetic abnormality, or when women without male partners wish to have children. This is referred to as donor-conception. There are likely several thousands of donor-conceived people who were conceived in Victoria prior to 1988, and more than 5500 have been born since then. Many of these people will be unaware that they are donor-conceived.
The Committee heard views from a wide range of individuals and organisations in the course of this Inquiry, through submissions and public hearings. This report has been informed by the evidence of donors, donor-conceived persons, recipient parents, academics, and representatives from government agencies, fertility clinics, medical associations and support groups.
Chapter Two: A history of donor-conception in Victoria
Victoria was one of the leading international sites for the development of assisted reproductive technologies such as IVF during the 1970s and into the 1980s. Victoria was also the first Australian state, and the first jurisdiction in the world, to enact legislation regulating assisted reproductive treatment. This legislation – the Infertility (Medical Procedures) Act 1984 – came into effect in 1988. The legislation has been significantly amended twice, with the Infertility Treatment Act 1995 effective from 1 January 1998, and the current Assisted Reproductive Treatment Act 2008 coming into effect on 1 January 2010.
Prior to 1988, donor-conception was unregulated, and was entirely in the hands of the medical profession. A culture of secrecy was pervasive in the early days of donor-conception, despite contemporaneous changes to adoption laws to eliminate secrecy. Donors and recipient parents were required to sign anonymity contracts agreeing that they would not seek to discover each other’s identity. Parents undergoing treatment were advised not to disclose the manner of their child’s conception to their child or to others, and clinics attempted to match the physical characteristics of the donor and the prospective father, so that the child would not look too different from the father.
Donor-conception practices in Victoria have evolved significantly over time to encourage far greater openness. Legislation regulating donor-conception has incrementally introduced provisions allowing donor-conceived people to access information about their donors, with the Infertility (Medical Inquiry into Access by Donor-Conceived People to Information about Donors - Procedures) Act 1984 allowing post-1988 donor-conceived people to obtain identifying information with the donor’s consent, and the Infertility Treatment Act 1995 introducing the right for all post-1998 donor-conceived people to obtain identifying information about their donor in all cases.
Chapter Three: Access by donor-conceived people to information about donors
Not all donor-conceived people want to know who their donors are, or desire more information about their donors. However, donor-conceived people who want to know who their donors are can experience distress when they are unable to obtain information about them. This distress may be exacerbated when a donor-conceived person learns of the circumstances of their conception later in life.
Under current legislation in Victoria, rights for access to information by donor-conceived people are determined by the date at which the gametes used in their conception were donated. People conceived from gametes donated before 1 July 1988 have no rights to access information about their donors under legislation, although they may obtain information through a voluntary register. People conceived from gametes donated between 1 July 1988 and 1 January 1998 are entitled to receive non-identifying information about their donors, and identifying information with their donors’ consent. People conceived from gametes donated after 1 January 1998 are entitled to obtain non-identifying and identifying information about their donors. Legislative change will be required to provide people conceived from gametes donated prior to 1 July 1988 with access to identifying information about their donors.
There are a number of arguments in favour of providing access to identifying information to all donor-conceived people in Victoria. These include: providing for communication of medical information between donor-conceived people and their donors; ensuring that donor-conceived people are able to exercise their rights under the Charter of Human Rights and Responsibilities Act 2006; and ensuring that the principle articulated in the Assisted Reproductive Treatment Act 2008, that “the welfare and interests of persons born or to be born as a result of treatment procedures are paramount”, is applied. On the other hand, donors were promised anonymity when making donations prior to 1 January 1998, and providing donor-conceived people with access to identifying information may constitute an unreasonable breach of donors’ privacy.
On balance, the Committee determined that the right of a donor-conceived person to have access to identifying information about his or her donor is paramount. The Committee therefore recommends that the Victorian Government introduce legislation to allow all donor-conceived people to obtain identifying information about their donors. However, in order to provide some assurance to donors and donor-conceived people that they will not consequently experience unreasonable interference in their lives, the Committee also recommends that both parties be able to lodge a contact veto to prohibit contact with each other.
Chapter Four: Donors’ access to information
Donors have a wide range of views on whether donor-conceived people should have access to identifying information. The Committee heard from donors who were happy to have identifying information provided to donor-conceived people and others who did not want identifying information shared with others. Some donors were worried about the effect that contact with their donor-offspring would have on their families and careers.
Under current legislation in Victoria, donors who provided gametes prior to 1 July 1988 have no right to access identifying or non-identifying information about their donor-offspring. They may obtain information from the voluntary register (if other parties have also volunteered information), and may obtain non-identifying information from the treatment clinic, if it is still operating. Donors who provided gametes after 1 July 1988 are able to obtain non-identifying information about their donor-offspring from the central register, and identifying information with the consent of their offspring (or if that person is a minor, his or her parents or guardians).
The Committee determined that all donors should be provided with access to non-identifying information about any person conceived from their gametes. The Committee considered that providing all donors with a mechanism to obtain identifying information about their donor-offspring was not necessarily in the interests of the donor-conceived person, as evidence suggests that it is preferable that donor-conceived people learn of their status from their parents. In the Committee’s view, existing arrangements for donors’ access to identifying information should remain. The Committee also recommends that a mechanism be introduced to allow medical information to be passed from a donor to their donor-offspring, if a significant genetic or hereditary risk to the donor-conceived person exists.
Chapter Five: Access to information about donor-conceived siblings
A number of donor-conceived people expressed an interest in knowing more about their donor-conceived siblings. Some donor-conceived people also expressed concerns about forming relationships with people in their age group, fearing that they may discover their partner or spouse is their half-sibling. Some donor-conceived people find it difficult to form relationships for this reason, even though the likelihood of forming such a relationship is low.
Donor-conceived people are not currently entitled to receive any information about their half-siblings. The only mechanism through which contact can be made is the voluntary register, which requires the participation of both (or all) of the half-siblings.
The Committee recommends that non-identifying information about half-siblings be made available to donor-conceived people. This would provide some means for donor-conceived people to assure themselves that a person they formed a relationship with was not related to them.
Access to identifying information on half-siblings should not be provided to donor-conceived people. The Committee recommends that a mechanism be introduced to allow medical information to be passed from a donor-conceived person to his or her half-siblings should a significant genetic or hereditary risk to the half-sibling exist.
Chapter Six: Counselling and support services
Contact between donor-conception stakeholders – including donor-conceived people, their parents, half-siblings, and donors – is still very new and uncharted territory. All parties will feel vulnerable throughout this process, and will struggle to determine the appropriate way to proceed. It is important that particularly leading up to and during this process, comprehensive counselling and support services be available to these people and their families. The arrangements that were in place when the former Infertility Treatment Authority was responsible for providing these services (up until the end of 2009) were far superior to the limited and fragmented services currently available.
While it operated, the Infertility Treatment Authority was responsible for managing the donor registers, and provided a range of related services. These included donor-linking and counselling services for those seeking information about their donor or donor-conceived offspring, and operating a letterbox service. The letterbox service allowed donor-conception stakeholders to communicate and gradually develop a relationship before revealing their identities to each other.
The introduction of the Assisted Reproductive Treatment Act 2008 in 2010 dramatically changed the services available, by transferring the donor registers to the Registry of Births, Deaths and Marriages, and conferring a limited counselling role on a section within the Department of Human Services. The Committee heard much evidence to suggest that these changes have markedly reduced the services available to donor-conception stakeholders, and have made it difficult and confusing to access those services.
It would be preferable that all donor-conception stakeholders are able to access the information, counselling and support services that they require through a single agency with relevant expertise.
Chapter Seven: Protection and management of records
Victoria has had reliable and centralised donor-conception records from 1988 onwards, as since this time, clinics and doctors have been required to provide details about donor-conception procedures to be recorded on the central register. However, pre-1988 donor-conception records are held in disparate locations, and some may be inaccessible, incomplete, inaccurate, or may no longer exist. In addition, where these records are held privately, they are legally able to be destroyed at any time. As donor-conception records are a type of identity record, they should be protected and preserved indefinitely. To ensure that all donor-conception records are accessible, it is critical that they all be held and managed centrally. Ideally, the managing agency would be the same agency that is responsible for providing counselling and support services to donor-conception stakeholders.
It is important that information in donor-conception records is verified before it is released. Where there are gaps and uncertainties in the records, a DNA matching facility could assist to overcome these. It is also desirable that a national donor-conception register be established, and the Victorian Government could play a role in championing the development of consistent donor-conception legislation in all Australian states and territories.
Chapter Eight: Other issues in donor-conception
In the course of this Inquiry, a number of issues were raised that do not fall within the Committee’s Terms of Reference. The Committee did not make findings or recommendations on these issues, but considers that it is important to note the issues raised. These include:  the number of families who should be permitted to use gametes donated by a single donor;  the ‘reasonable expenses’ that donors should be entitled to receive, if any;  whether potential donors should be subject to police checks before they are accepted as donors;  whether the importation of gametes from overseas should be banned; and  whether the legislation should be amended to clarify that a donor does not have the right to make decisions about embryos resulting from his or her gamete donation. 
The Committee's recommendations are -
R1: That the Victorian Government introduce legislation to allow all donor-conceived people to obtain identifying information about their donors.
R2: That, in implementing Recommendation 1, the Victorian Government require that a child applying for identifying information about his or her donor only be provided with that information if: 1) the child’s parents have consented to the application; or 2) a counsellor has provided counselling to the child and has confirmed in writing that the person is sufficiently mature to understand the consequences of the disclosure.
R3: That, with the introduction of the legislation described in Recommendation 1, the Victorian Government require donor-conceived people to attend counselling prior to obtaining identifying information about donors.
R4: That, with the introduction of the legislation described in Recommendation 1, the Victorian Government introduce provisions for contact vetoes that may be lodged by a donor or a donor-conceived person following counselling, with the following features: that contact vetoes only be available to people conceived from gametes donated prior to 1998, and the donors of those gametes; that donors may only lodge a contact veto after they have been informed that a donor-conceived person has lodged an application for identifying information about them; that a veto prohibits contact between the donor and the donor-conceived person; that suitable penalties be established for breach of a veto; that a veto lapses within five years if not renewed by the person who lodged it; and that the person who lodged a veto may withdraw it at any time.
R5: That, with the introduction of the legislation described in R1, the Victorian Government introduce provisions for donors to lodge a contact preference form for presentation to a donor-conceived person.
R6: That the Victorian Government introduce the measures proposed in R1 through R5 following a period of time sufficient to publicise and inform the Victorian community of retrospective changes to donor-conception arrangements..
R7: That the Victorian Government encourage organisations, agencies and persons holding information on donor-conception to release, upon request, non-identifying information about a donor to a donor-conceived person, his or her parents, and his or her descendants.
R8: That the Victorian Government encourage organisations, agencies and persons holding information on donor-conception to release to a donor, upon request, non-identifying information about his or her donor-conceived offspring.
R9: That the Victorian Government introduce a mechanism for medical information from a donor to be provided to a donor-conceived person, where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person.
R10: That the agency managing the donor registers be empowered to release to a donor-conceived person, upon request, non-identifying information about his or her donor-conceived siblings.
R11: That the agency managing the donor registers be empowered to release to the parents of a donor-conceived person, upon request, non-identifying information about that person’s donor-conceived siblings
R12: That the voluntary register remain the only means for donor-conceived people to seek identifying information about their donor-conceived siblings.
R13: That the Victorian Government introduce a mechanism for medical information from a donor-conceived person to be provided to that person’s donor-conceived siblings where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person.
R14: That the Victorian Government introduce legislation to empower one agency to provide all services relating to the provision of information, linking and counselling services related to donor-conception, including management of the donor registers, a letterbox service, education and public campaigns.
R15: That the agency referred to in R14 be granted access to the Victorian register of electors in order to conduct its functions.
R16: That VARTA assume the responsibilities of the agency referred to in R14.
R17: That the Victorian Government introduce legislation to transfer ownership of, and responsibility for, the donor register databases currently held by the Victorian Registry of Births, Deaths and Marriages, to the agency referred to in R14.
R18: That the agency referred to in R14 offer comprehensive and ongoing counselling and support services, in association with managing the donor registers, to all donor-conceived people, recipient parents and donors, and their relatives, and that counselling be compulsory for:  a donor-conceived person who is seeking identifying information about his or her donor;  a donor who is seeking identifying information about his or her donor-conceived offspring; and  a donor or donor-conceived person who applies to lodge a contact veto.
R19: That the Victorian Government introduce a mechanism by which identifying information about a donor can be released directly to a donor-conceived person, in appropriate circumstances
R20: That the agency referred to in R14 provide a letterbox service for donor-conception stakeholders, based on the service previously provided by the ITA.

R21: That if the Committee’s recommendations are implemented, VARTA conduct a public information and awareness campaign advising the public of relevant changes in the provision of information to donor-conception stakeholders, particularly targeting pre-1998 donors
R22: That VARTA continue its education and public campaigns role, with a particular focus on encouraging and supporting the parents of older donor-conceived children to tell their children about the circumstances of their conception.
R23: That the Victorian Government introduce legislation to provide that destruction of, falsifying or tampering with, any records that identify parties to donor-conception, is an offence.
R24: That the Victorian Government introduce legislation to require that persons or organisations that hold records containing information on pre-1988 donor-conception provide copies of the records to a central agency, and in the case of PROV, that pre-1988 donor-conception records be transferred to a central agency.
R25: That the legislative changes proposed in R24 be advertised in a public campaign targeting the medical profession.
R26: That the agency referred to in R24 approach individual doctors who are known to have provided donor insemination services and obtain copies of records held by them, if any, containing information on parties to donor-conception.
R27: That the Victorian Government introduce legislation to transfer responsibility for the central and voluntary registers from the Victorian Registry of Births, Deaths and Marriages to the agency described in R14.
R28: That the Victorian Government provide a facility within the voluntary register for DNA matching.
R29: That where records for donors or donor-conceived people are unavailable, incomplete, or ambiguous, the Victorian Government offer a concession for DNA testing if that person wishes to lodge DNA matching data on the voluntary register
R30: That the Victorian Government provide regular reports to an appropriate inter-jurisdictional body, such as the Standing Committee of Attorneys-General or the Council of Australian Governments, on progress with the development and implementation of reforms to donor-conception legislation.

ALRC Copyright Review

The Australian Attorney-General has released draft Terms of Reference for the 'Copyright and the Digital Economy' review by the Australian Law Reform Commission (ALRC).

Release of the draft Terms follows announcement of the review, to be headed by Professor Jill McKeough, earlier this year.

The A-G states that -
Having regard to:
· the objective of copyright law to promote the production of original copyright materials; · the need for copyright law to provide an appropriate balance between the rights of creators and the rights, interests and expectations of users and the public so as to foster creativity and innovation and promote cultural development;
· the importance of the digital economy and the opportunities for innovation leading to national economic and cultural development created by the emergence of new digital technologies; and · Australia’s international obligations, including any existing or proposed international obligations.
I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 the matter of whether the exceptions in the Copyright Act 1968, are adequate and appropriate in the digital environment.
The draft Terms of Reference continue that -
Amongst other things, the ALRC is to consider whether further exceptions should be provided to:
· facilitate legitimate use of copyright works to create and deliver new products and services of public benefit; and
· allow legitimate non-commercial use of copyright works for uses on the internet such as social networking.
In undertaking that reference the Commission is to -
- take into account the impact of any proposed legislative solutions on other areas of law and their consistency with Australia’s international obligations;
- take into account recommendations from related reviews, in particular the Government’s Convergence Review; and
- not duplicate work being undertaken on:
unauthorised distribution of copyright materials using peer to peer networks;
the scope of the safe harbour scheme for ISPs;
a review of exceptions in relation to technological protection measures; and
increased access to copyright works for blind and visually impaired people.
The ALRC is to report no later than 30 November 2013.

Public comments on the draft Terms are due (going to the A-G) by 27 April.

29 March 2012


The University of Queensland TC Beirne School of Law has released a 78 page report [PDF] on Australian law regarding Khat (a stimulant aka qat, jaad, kaad, herari, tohai, tschat, chat, marduuf, robta, murungu, zurba, African salad, flower of paradise and Abyssinian tea).

Law Enforcement and Khat was funded by the National Drug Law Enforcement Research Fund. It reflects concerns regarding community awareness and regulatory clarity among users and regulators across Australia, in particular use by people from Somalia. It drew on input from 19 focus groups of 129 Somali and Ethiopian people in Sydney, Brisbane, Melbourne and Perth, complemented by interviews with police in each state.

The report comments that -
Khat use is understood to have originated in Ethiopia, but it is now also widely chewed in other areas predominantly around the Red Sea, especially Somalia, Djibouti and Yemen. The legality of khat, even in countries where it has been chewed for generations, varies widely and is often the subject of fierce political debate. As people from countries where khat is commonly used have migrated throughout the world, the diaspora has brought with it the practice of chewing khat. This migration has required many countries outside the Red Sea area to address the question of whether khat should be regulated, and if so, how. In Australia, particularly as the East African community continues to grow, khat is becoming more commonly used. ... Although a great deal of the khat consumed in Australia is imported, in some states khat is being grown for personal use or for sale in other states and territories. 
Some have argued that the use of khat is an emerging concern because of its effects on health and wellbeing, and that the drug should be monitored. ... The law currently varies markedly among Australian states and territories. While this is a concern in relation to regulating many drugs in Australia, particular issues are associated with regulating khat. For example, given that khat is used primarily by immigrants who usually do not speak English as their first language, the need for clear law is particularly important.
The recommendations are that governments should -
1 Clarify state regulation and importation law
Khat is regulated in Australia through a complex regime of overlapping and differing Commonwealth, state and territory laws. In some states possession of khat is strictly prohibited and carries heavy penalties, whereas in others possession of khat appears to be legal (at least for personal use). Many focus group participants and police expressed uncertainty about the law in Australian states relating to khat. The law in relation to khat should be made as clear as possible in each state, especially given that many khat users speak English as a second language. The interaction between Commonwealth importation laws and state laws should be clarified and communicated to potential users.
2 Educate police about khat
In general police require more information about the law relating to khat, cultural and spiritual issues associated with its use, and the possible health effects associated with khat use.
3 Educate the community about the law and the health effects of khat
Focus group participants generally claimed that chewing khat is harmless or indeed positive for many health conditions, including diabetes, stress and heart disease. Most users were unaware of the physical and psychological harms that have been associated with chewing khat. Health professionals have a role in educating users about harms associated with the drug and promoting its responsible use (where use is legal) in order to minimise negative health effects for the individual and for the community. Fact sheets should be developed in conjunction with community consultation to distribute in relevant communities.
4 Conduct further research on health and the need for human studies
Only limited large-scale human population research involving khat exists. Until such studies are carried out many of the claims about the relationship between khat and negative health outcomes will remain unverified.
5 Conduct further research on how khat affects driving
Many focus group participants believed it was safe to drive under the influence of khat. In fact, many thought they were better drivers when chewing khat. By contrast, some focus group participants pointed to reduced concentration and speeding while under the influence of khat. A number of police interviewees were concerned about the possible dangers of driving under its influence. Education is needed to ensure that users understand the possible risks associated with driving while chewing khat. More research is required to explore these issues. A particularly concerning trend is use by immigrant taxi drivers to stay awake on long shifts.
In discussing the Australian legal regime the report comments that
Regulating khat in Australia is unnecessarily complex and potentially a source of much confusion for users, police and the courts. The existence of both a state and federal system of regulation increases this potential for confusion, as does the existence of food standards legislation in each state and territory, which may also regulate the sale of khat. Furthermore, jurisdictions have taken a variety of approaches to regulating the drug, so regulation is inconsistent throughout Australia. While these issues are common concerns in relation to drug regulation, the high level of mobility of Somali people in Australia and low levels of English language proficiency create particular concern in the context of khat regulation. In some jurisdictions, legislators have chosen to regulate one or both of the key chemical constituents of khat - cathinone and cathine - in addition to or instead of regulating the khat plant itself. This in turn has implications for the evidentiary burdens placed on prosecuting authorities in various states.
It notes that –
Importation of khat into Australia is controlled through Commonwealth legislation. The Customs (Prohibited Imports) Regulations 1956 (Cth) lists the substances cathinone and cathine in Schedule 4 as drugs. As such they are subject to Regulation 5 of the Customs (Prohibited Imports) Regulations 1956 (Cth) (specifically sub-regs 5[20][a] to [d]). The definition of ‘drug’ in Regulation 5 includes a substance, or thing containing a substance, included in the schedule. Therefore, while the khat plant is not specifically listed as a drug, it is illegal to import both fresh and dried khat into Australia without a licence because it is assumed to contain the substances cathinone and cathine. If individuals import khat without a licence they face a maximum penalty of $110,000. To bring a charge under this provision, presumably the prosecution would need to have the khat forensically analysed and obtain evidence that it did in fact contain either cathinone or cathine or, alternatively, bring a charge for attempted importation. A scheme has been in place since 1997 to grant licences allowing individuals to import khat for personal use. This is currently administered by the Office of Chemical Safety & Environmental Health (OCSEH). However, before a licence to import khat is granted, a person must first obtain a permit from the Australian Quarantine & Inspection Service (AQIS), otherwise called an ‘AQIS Import Permit’, as khat is a plant material. The application must include details of the exporter and importer. According to AQIS, only khat leaf tips are allowed to be imported and therefore any plants that are capable of being propagated are not permitted. Pursuant to a licence there are no restrictions on whether fresh or dried khat can be imported; the upper limit of 5 kg for importation remains the same.  
Once an AQIS Import Permit is obtained, a person can then apply for a khat import licence from the OCSEH. Individuals can apply for a one-off licence of up to 5 kg of khat or, alternatively, for a yearly licence allowing importation of 5 kg a month for personal use. While the application form states that it is for an ‘Application for a licence/Permit to import khat (personal use only)’, no sections on the form require applicants to declare that the khat imported will be consumed by the applicant only and not sold or provided to other persons. The 5 kg importation for personal use amount is quite high; especially considering that most khat imported into Australia is dried. To import fresh khat the importer engages a customs broker at a cost. The Customs (Prohibited Imports) Regulations 1956 (Cth) state that it is illegal to import a quantity of drug exceeding that specified by the ‘permission to import the drug’ regulation (the ‘permission’ is presumably the licence or permit granted by the OCSEH). Each week in 2009, there were on average 43 clearances of 5 kg shipments of khat through the Melbourne airport via the postal and air cargo streams, an average of 215 kg a week. The amount of khat being imported into Australia appears to be increasing. In 1997, 70 kg were imported, while in 2008, 2,130 kg were imported
 Concerns exist that individuals are importing khat and selling it to others who do not possess an import licence. This practice is no doubt illegal. A licence to import khat is granted subject to compliance with certain conditions and requirements. The licence holder must keep the drug in safe custody at all times and must not dispose of it unless he or she is satisfied that it will be used solely for medical or scientific purposes. Clearly, this latter requirement is likely to be irrelevant to most khat importers and was enacted with therapeutic medications in mind. According to the regulations, if a licence holder—that is, a person who has legally imported khat for personal use - fails to comply with any of these licence conditions, the licence may be suspended or revoked and the person may become liable to prosecution for the offence of failing to comply with a condition of a licence, and the penalties are as high as $11,000 (Customs Act 1901 (Cth) s 50[4]). Thus, a person who legally imports khat under a licence may be prosecuted if they are found to be selling or giving the khat to another person, as this constitutes a breach of the licence requirement to keep the khat in the licensee’s safe custody at all times.
The report goes on to comment that –
In Queensland, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory khat, cathinone and cathine are regulated under criminal statutes. The problem that regulation in these states and territories poses is whether it is legal to possess khat in these jurisdictions if an individual possesses an import permit and licence under the Australian Government regime. OCSEH has advised that licences are currently only granted to individuals in Victoria, New South Wales and Tasmania. In 2008, 437 licences were issued in Victoria and 21 licences in New South Wales. Presumably, this is because it has been decided that granting licences to individuals in other states and territories will lead to individuals inevitably breaking the law in those jurisdictions once they are in possession of khat. … this avoids the conflict of laws described above, it also potentially encourages a market where individuals in Victoria, New South Wales and Tasmania become the distributors for users in other states and territories.
 The Australian states and territories regulate khat, cathinone and cathine in some way within criminal statutes, although Western Australia is the only jurisdiction where there has been criminal prosecution of khat possession. The regulatory regimes vary widely. In Queensland the khat plant and its active constituents are regulated under the Drugs Misuse Act 1986 (Qld); it is illegal to possess, supply or cultivate khat. The Northern Territory has a similar regime, with ‘khat leaf’ and ‘cathinone’ featuring in Schedule 2 of the Misuse of Drugs Act 1990 (NT) and possession, supply and cultivation of both ‘khat leaf’ and ‘cathinone’ accordingly being prohibited. A commercial quantity of khat leaf is 5 kg, attracting a maximum penalty of 14 years’ imprisonment. The South Australian regime regime is more complex: the plant is listed as a controlled plant under the Controlled Substances (General) Regulations 2000 (SA), and cathinone is listed as a controlled drug under Schedule 1. A person who possesses 5 kg of khat with the intention of selling any of it is guilty of an offence and faces a maximum penalty of $500,000 or life imprisonment. A presumption also operates so that a person in possession of a trafficable quantity (250 g or more) of khat is presumed, in the absence of proof to the contrary, to possess the relevant intention to sell the plants or any part of them. In the Australian Capital Territory the plant is a ‘controlled plant’, the sale of which is illegal under the Criminal Code 2002 (ACT). Commercial and trafficable quantities for the plant are not defined; therefore, the maximum penalty applicable for selling any quantity of the khat plant is 10 years’ imprisonment and/or 1,000 penalty units. Cultivation of khat is also illegal, with a maximum penalty of two years’ imprisonment and/or a fine of 200 penalty units.

The report comments that
Growing khat plants have more of a presence in Western Australia than in the rest of the country. Khat trees grow in numerous Perth backyards and many people report that trespassers harvest their trees for their leaves  … In Western Australia the regulatory response is complex. Section 4 of the Misuse of Drugs Act 1981 (WA) states that this act applies to prohibited drugs and plants. Prohibited plants to which that Act applies are those as defined in s 5 of the Poisons Act 1964 (WA). This section specifies that a prohibited plant means any plant from which a ‘drug of addiction’ may be obtained, derived or manufactured.
In New South Wales cathinone is regulated through inclusion in Schedule 1 to the Drug Misuse & Trafficking Act 1985 (NSW) but "there appears to be no mechanism through which the khat plant is regulated. This means it would be illegal for a person to extract cathinone from the khat plant, but if the cathinone remains within the plant it is not illegal.  In Tasmania, the active substances in khat, cathinone and cathine, are listed as controlled drugs under Part 2 of Schedule 1 of the Misuse of Drugs Act 2001. Possessing khat in Tasmania is effectively regulated under licence and enforced pursuant to Commonwealth law. Cathinone and cathine are regulated in Victoria through the Drugs, Poisons & Controlled Substances Act 1981 (Vic). Under s36B of that Act a person commits an offence if found in possession of a Schedule 4, Schedule 8 or Schedule 9 substance (ie cathinone) unless authorised under the Act or regulations.

The discussion concludes with the comment that
Yet another possible level of regulation of khat exists in Australia and that is through state and territory food standards legislation that gives effect to the national Food Standards Code.  The legislation varies slightly but all Acts contain a provision which requires individuals to comply with the Australia New Zealand Food Standards Code in relation to conducting a food business or to food intended for sale or food for sale. Failure to comply with the Food Standards Code results in a penalty of 500 penalty units. Pursuant to Schedule 1 of Standard 1.4.4 food standards code (Prohibited and Restricted Plants and Fungi), a plant or fungus, or a part or a derivative of a plant or fungus listed in Schedule 1, or any substance derived therefrom, must not be intentionally added to food or offered for sale as food. Catha edulis (khat) is listed in Schedule 1. The question remains, however, whether supplying khat to another person constitutes offering khat for sale as food. Food is defined consistently across the state and territory food acts as including ‘any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared)’ and may include plants. Therefore, it is possible that offering to sell another person khat for the purpose of consumption would fall under this definition of offering food for sale and thus, would be illegal under the food Acts. Enforcement and interpretation of the legislation is the responsibility of state and territory health departments. No known cases of this legislation are currently being enforced in relation to khat in any state or territory.

FTC Report

The US Federal Trade Commission has released its 113 page Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers report [PDF] report.

The report is a 'two steps forward one step backwards' document. It is based on the December 2010 report noted here, resiling from the stronger privacy protection recommended at that time. It essentially hands the problem to Congress, with a suggestion that the legislature consider enacting -
  • general privacy legislation,
  • data security and breach notification legislation, and
  • data broker legislation.
The report calls on businesses handling consumer data to implement recommendations for protecting privacy. Those recommendations cluster around three themes -
  • Privacy by Design - enterprises should build in consumers' privacy protections at every stage in developing their products. These include reasonable security for consumer data, limited collection and retention of such data, and reasonable procedures to promote data accuracy;
  • Simplified Choice for Businesses and Consumers - enterprises should give consumers the option to decide what information is shared about them, and with whom. This should include a Do-Not-Track mechanism that would provide a simple, easy way for consumers to control the tracking of their online activities.
  • Greater Transparency - enterprises should disclose details about their collection and use of consumers' information, and provide consumers access to the data collected about them.
Unfortunately it weakens the coverage suggested in the December 2010 report.

That document recommended that the proposed framework apply to every commercial entity that collects or uses consumer data that could be linked to a specific consumer, computer, or other device. The new report, "recognizing the potential burden on small businesses", recommends that the framework should not apply to "companies that collect and do not transfer only non-sensitive data from fewer than 5,000 consumers a year".
Just as importantly, the FTC notes that -
The report also responds to comments filed by organizations and individuals that, with technological advances, more and more data could be "reasonably linked" to consumers, computers, or devices. The final report concludes that data is not "reasonably linked" if a company takes reasonable measures to de-identify the data, commits not to re-identify it, and prohibits downstream recipients from re-identifying it.
The report makes two recommendations regarding data brokers, commenting that "data brokers often buy, compile, and sell highly personal information about consumers" and that the transparency of such activity should be increased. It reiterates FTC support for legislation that would provide consumers with access to information held by data brokers and calls on brokers compiling consumer data for marketing purposes to explore creation of a centralised website where consumers could get information about their practices and their options for controlling data use.

The Commission indicates that it will concentrate on "five main action items" -
Do-Not-Track - The Commission commends the progress made in this area: browser vendors have developed tools to allow consumers to limit data collection about them, the Digital Advertising Alliance has developed its own icon-based system and also committed to honor the browser tools, and the World Wide Web Consortium standards-setting body is developing standards. "The Commission will work with these groups to complete implementation of an easy-to-use, persistent, and effective Do Not Track system".

Mobile - enterprises offering mobile services are encouraged "to work toward improved privacy protections, including disclosures", with the FTC hosing a workshop in May "to address how mobile privacy disclosures can be short, effective, and accessible to consumers on small screens".

Data Brokers-  brokers should make their operations more transparent by creating a centralized website to identify themselves, and to disclose how they collect and use consumer data. In addition, the website should detail the choices that data brokers provide consumers about their own information.

Large Platform Providers - the report cited heightened privacy concerns about the extent to which platforms, such as Internet Service Providers, operating systems, browsers and social media companies, seek to comprehensively track consumers' online activities. The FTC will host a workshop in the second half of 2012 regarding comprehensive tracking.

Promoting Enforceable Self-Regulatory Codes - The FTC will work with the Department of Commerce and stakeholders to develop industry-specific codes of conduct. To the extent that strong privacy codes are developed, when companies adhere to these codes, the FTC will take that into account in its law enforcement efforts. If companies do not honor the codes they sign up for, they could be subject to FTC enforcement actions.

Legal Consciousness

'Legal Consciousness and LGBT Research: The Importance of Law in the Everyday Lives of LGBT Individuals' by Nancy Knauer in 59 Journal of Homosexuality (2012) comments that
The law occupies a prominent place in the everyday lives of LGBT individuals, and the continuing regulation and policing of sexuality and gender weighs heavily on many people who identify as LGBT. Despite remarkable progress in the area of LGBT civil rights, LGBT individuals in the United States still lack formal equality and are denied many of the protections that are afforded other historically disadvantaged groups. These legal disabilities represent an ongoing source of minority stress and can produce a correspondingly high degree of “legal consciousness” within the LGBT community.

Given the importance of law in LGBT lives, it is not surprising that LGBT-related research often incorporates references to the legal status of LGBT individuals. Over the last several years, however, the pace of change in the area of LGBT civil rights has been so fast and uneven that it has become increasingly difficult to keep up with the most recent developments. This Essay is designed to offer an accessible framework for understanding the current state of LGBT civil rights in the United States, with a special focus on the question of relationship recognition. It explains the key concepts, provides some basic research guidelines, and suggests a number of helpful resources in order to ensure that the “legal consciousness” of LGBT-related research reflects the latest developments in the field.

28 March 2012


In a past life I debunked geek enthusiasm for Sealand (the dinky cyberhaven cum microstate in the North Sea) as a garbage can on stilts, recognised by no one other than digital romantics or journalists in search of an easy headline and rendered powerless by restrictions on the delivery of fuel, pizza, Red Bull and other necessities of life ... no more impressive than the evanescent kingdoms of spotty teenagers who declare that they are monarchs of all they survey (ie their bedroom) and like the 'Duke of Avram' award themselves impressive titles that aren't recognised by the United Nations, the Australian government or anyone with much suasion.

'Sealand, HavenCo, and the Rule of Law' by James Grimmelmann in 2012(2) University of Illinois Law Review 405-484 notes that -
In 2000, a group of American entrepreneurs moved to a former World War II antiaircraft platform in the North Sea, seven miles off the British coast. There, they launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo’s founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a “data haven” for unpopular speech, safely beyond the reach of any other country. This Article tells the full story of Sealand and HavenCo — and examines what they have to tell us about the nature of the rule of law in the age of the Internet.
Grimmelmann's article complements Adrian Johns' lucid Death Of A Pirate: British Radio and the Making of the Information Age (Norton, 2011). He comments that
The story itself is fascinating enough: it includes pirate radio, shotguns, rampant copyright infringement, a Red Bull skateboarding special, perpetual motion machines, and the Montevideo Convention on the Rights and Duties of State. But its implications for the rule of law are even more remarkable. Previous scholars have seen HavenCo as a straightforward challenge to the rule of law: by threatening to undermine national authority, HavenCo was opposed to all law. As the fuller history shows, this story is too simplistic. HavenCo also depended on international law to recognize and protect Sealand, and on Sealand law to protect it from Sealand itself. Where others have seen HavenCo’s failure as the triumph of traditional regulatory authorities over HavenCo, this Article argues that in a very real sense, HavenCo failed not from too much law but from too little. The “law” that was supposed to keep HavenCo safe was law only in a thin, formalistic sense, disconnected from the human institutions that make and enforce law. But without those institutions, law does not work, as HavenCo discovered.
Grimmelmann concludes
In December 2010, the Sealand government sent its Facebook and Twitter followers a message: Sealand has been asked to give #Wikileaks founder Julian Assange a passport and safe haven. With recent releases by Wikileaks: Are they a guardian of the public right to information or a hugely irresponsible threat to security of the international community?
That the Internet’s latest mutineer would sooner or later be linked with Sealand should come as no surprise. From pirate radio to the Pirate Bay, Sealand exerts a magnetic pull on all those who would remake the world by standing outside of existing legal systems. Little wonder, too, that Sealand’s history has taken us to tax havens and cyberspaces, or that Sealand holds pride of place in books on micronations and seasteading. They are all rebels against the existing order of things.
But, as one review of a book on pirate radio puts it, “Ya gotta have rules, it turns out, even if you’re a rebel.” All of these dissident utopians must face the same three issues of law that HavenCo did: how far will they push against national law, how will they protect their right to exist under international law, and how will they use internal law to govern themselves? These are hard problems on their own, and HavenCo’s experience illustrates that they intertwine in ways that make them even harder.
Remarkably, even the creators of fictional data havens have understood as much. Their authors take the international-relations and inter- nal-governance issues seriously.  The data havens in Bruce Sterling’s Islands in the Net are all island states whose sovereignty is guaranteed by a strong worldwide treaty regime with its own armed forces. Even so, they are unstable: Grenada and Singapore collapse during the course of the novel. William Gibson’s Freeside is even simpler: it floats in high earth orbit, where terrestrial nations can’t get at it, and is controlled absolutely by the Tessier-Ashpool family.
Kinakuta, from Neal Stephenson’s Cryptonomicon, is the most famous and most fully worked out of the fictional data havens, the one that most seriously tries to imagine what it would take to make a data haven work. Kinakuta is a wealthy nation sitting on top of absurdly rich oil de- posits, with a long history of multiethnic tolerance, a substantial population, a thriving business culture, and a bureaucratized administration. Externally, the oil-rich Sultan of Kinakuta has a strong hand to play if other nations take offense. Internally, he explicitly promises to “abdicate all governmental power” over information flows. Unlike Roy Bates, the Sultan of Kinakuta has a lot to lose if his country proves a bad business environment.
As Kinakuta and Sealand show, one can’t stand up to national authority without law in one form or another—which means one will also need political institutions that grapple seriously with the inevitable ques- tions of power and community will. Or, to put things more optimistical- ly, anyone who successfully manages to answer these questions is likely to have built something that bears more than a passing resemblance to a nation-state. Consider Iceland, which recently made itself into a “safe haven for investigative reporting” with “the world’s strongest protections for free speech and journalism.” Iceland is a sovereign nation, but even more importantly, it has a police force, a population that favors the press-shield law, and a parliament founded in 930. (No, there is not a “1” missing from that date.) One last example may be helpful. Every so often, someone complains about the “maritime” flags in U.S. courthouses. The theory is that gold fringe and an eagle on the standard transform the “American flag of peace” into the “military” or “maritime” “flag of war,” under which civilian courts have no jurisdiction. There are hundreds of such theories. They never work, but they also never stop coming.No matter how patiently the courts explain that Ohio is a state, or that individuals are not sovereign, or that a filing is valid even if its caption spells your name in capital letters, the arguments never cease.
I am not concerned with why people are willing to believe what one commentator, perhaps unfairly, calls “Idiot Legal Arguments.” People believe all sorts of strange things, and occasionally some of them turn out to be true. Instead, it’s worth asking why people expect these heterodox legal arguments to work. The cases involve tax protesters, militia members, prison inmates — people who have extensive, firsthand experience being at the wrong end of government’s stick. Either their faith in a fearless and independent judiciary is strong indeed, or something else is going on.
We can sharpen the point. In Stephen Vincent Benét’s famous short story The Devil and Daniel Webster, contract law and a jury trial are binding even on the devil himself. Like the tax protesters and like HavenCo, Benèt imagines that there is a great and malevolent power afoot in the world, that law will suffice to hold this power back, and that law will do this of its own accord, simply because it is the law. This vision of law invests it with supernatural force; it collapses law into a system of magic words.
But law is not an external, autonomous system of self-enforcing rules: it is made by people, for people, and of people. No judge sitting in a courtroom containing a flag with gold fringe is going to declare that flags with gold fringe deprive courts of jurisdiction. No matter what a piece of paper labeled “law” says on it, if it has no correspondence with what people do, it is no law at all. Ursula K. Le Guin once wrote, “Love doesn’t just sit there, like a stone, it has to be made, like bread; remade all the time, made new.” The same is true of law and the rule of law. It takes work to make law work.

Compulsory Licensing

In Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Ors [2012] HCA 8 the High Court has dismissed a challenge to the validity of compulsory licensing provisions under ss 109 and 152 of the Copyright Act 1968 (Cth).

The Court held unanimously that those provisions are not invalid by reason of s 51(xxxi) of the Constitution, ie with respect to "acquisition of property on just terms". The judgment is of particular interest regarding the 'confiscation' argument mooted by cigarette companies in relation to the plain-paper packaging (ie restrictions on use of trade marks) legislation highlighted in past posts on this blog. It is also of interest because it concerns the constitutionality and legitimacy of compulsory licensing.

The litigation involved the PPCA, EMI, Sony, Universal Music, Warner Music and Albert Music (ie record industry interests) as plaintiffs. The defendants were the Commonwealth, Commercial Radio Australia (ie the commercial radio industry advocacy group) and the ABC.

The HCA addressed three questions as follows -
Question 1: Are some or all of the provisions in ss 109 and 152 of the Copyright Act 1968 (Cth) beyond the legislative competence of Parliament by reason of s 51(xxxi) of the Constitution?

Answer: The provisions in s 152 of the Copyright Act 1968 (Cth) which were alleged by the plaintiffs to be invalid are not invalid and, therefore, s 109 is not invalid.

Question 2: If so, should some or all of these provisions be read down or severed and, if so, how?

Answer: This question does not arise.

Question 3: What order should be made in relation to the costs of the Special Case?

Answer: The plaintiffs should pay the defendants' costs of the Special Case.
The decision concerns the cap in the Copyright Act 1968 (Cth) for royalties payable for radio broadcasting of sound recordings, notably 1% of the gross earnings of the commercial broadcaster under s 152(8)(b). Caps in the Act are unusual because they are not tied to a discernable economic formula and are set by the Copyright Tribunal.

The PPCA acts in the interests of the owners/exclusive licensees/controllers of copyright in sound recordings that currently subsists under Pt IV of the 1968 Act. It litigated on behalf of the second to fifth plaintiffs (eg Warner, EMI and Universal) in respect of sound recording copyrights in published sound recordings made prior to the commencement of the 1968 Act. The sixth plaintiff (ie Albert) is also the holder of relevant sound recording copyrights.

The plaintiffs brought proceedings in the original jurisdiction of the High Court, challenging the validity of the cap created by ss 109 and 152 of the 1968 Act. They argued that in fixing a cap on the amount that the Copyright Tribunal may determine for the compulsory licence of the pre-1969 recordings, ss 109 and 152 represented an acquisition of the property in the pre-1969 recordings on other than just terms. Acquisition on other than just terms - although permissible under state law, would of course be contrary to s 51(xxxi) of the national Constitution. The plaintiffs sensibly did not assert that the compulsory licensing system established by the 1968 Act is wholly invalid or that the 1968 Act is invalid because it brought to an end the operation of the copyright regime under the 1911 Act without provision of just terms.

The Defendants argued that there was no acquisition of property, given that law prior to the 1968 Act did not create a broadcast right. They further argued that even if there was an acquisition of property, it was consistent with the adjustment envisaged by s 51(xxxi) of the Constitution.

Prior to the 1968 Act, the post-Federation copyright regime was shaped by the Copyright Act 1911 (Imp) as modified by the Copyright Act 1912 (Cth) and subsequent amendments. In its media release the HCA states that -
An owner of a copyright in a record protected under the 1911 Act had the exclusive right to perform the record in public, and a correlative exclusive right to license or authorise a radio broadcaster to broadcast the record. Neither the 1911 Act nor the 1912 Act provided for a compulsory license scheme under which a broadcaster could broadcast a sound recording without the consent of the owner.

The 1968 Act commenced operation on 1 May 1969. The effect of transitional provisions contained in the 1968 Act was that pre-1969 recordings which were copyright protected under the 1911 Act were taken to be sound recordings in which copyright subsisted under Pt IV of the 1968 Act. Section 109 of the 1968 Act operates to qualify the exclusive right under the 1968 Act of an owner of copyright to communicate a published sound recording to the public. It provides that copyright in a published sound recording is not infringed by a broadcaster, even in the absence of authorisation by the "owner" of the copyright, if there is either an order by the Copyright Tribunal under s 152 of the 1968 Act in force, or an undertaking given to pay the owner such amounts as may be determined under that section. Section 152 imposes a "cap" on the amount that the Tribunal may require a broadcaster to pay for what is in substance a compulsory license.

The High Court held unanimously that the 1968 Act excluded further operation of the 1911 Act and denied subsistence of copyright otherwise than by virtue of the 1968 Act.

Sections 109 and 152 therefore did not operate to qualify the copyright of the plaintiffs under the 1911 Act and so did not constitute an acquisition of the property in the pre-1969 recordings.