12 October 2012

Conditional Residence: the Rohipa Decision

An indicator of effectiveness as a state is that a government is able to exclude people from residence within that state's borders.

In Ropiha and Minister for Immigration and Citizenship [2012] AATA 689 the Administrative Appeals Tribunal has set aside a decision by the Minister for Immigration and Citizenship under s 501 of the Migration Act 1958 (Cth) to cancel a New Zealand man's visa on trhe basis that the man failed the character test because of his criminal history.

The Tribunal substituted a decision that John Ropiha’s visa not be cancelled, on the basis that Ropiha has "reformed" and has substantial links in the Australian community.

The character test provision in s 501(6) indicates that
a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A [ie escaping from immigration detention]; or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test .
In relation to that subsection 'Substantial criminal record' is defined in s 501(7) -
 For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
The Tribunal in Rohipa states that
John Ropiha is a 31 year old man who migrated to Australia with his family in 1981, when he was 5 months old. He is a citizen of New Zealand. Apart from several short trips to New Zealand before 1986 and six months living with his grandmother when he was 14 years old, Mr Ropiha has resided in Australia since this time. Mr Ropiha was granted a Class TY Subclass 444 Special Category (Temporary) visa on 16 March 1996, which allows the holder to remain in Australia indefinitely while they remain a New Zealand citizen. His father and mother live in Australia and he has five siblings, who were born in Australia and are Australian citizens. He has no family or other ties in New Zealand and has eight children, all of whom are under 18 years old, who were born and reside in Australia.
Mr Ropiha has a history of criminal conduct commencing when he was 13 years old. His juvenile offences included larceny, shoplifting, two charges of resisting an officer when he was 15 years old and assault and common assault when he was 17 and 18 years old. He was cautioned, fined and given non-custodial sentences for these various offences until April 2000, when he was sentenced to 8 months’ imprisonment for break and enter, and resisting arrest. Thereafter, Mr Ropiha was convicted of numerous offences and served approximately seven years in prison until 1 July 2012, when he was released from Wellington Correctional Centre. Mr Ropiha engaged in a pattern of reoffending while on parole and spent most of his years from the age of about 23 until 30 years old in prison. These years were punctuated by brief periods living in the community, during which time he formed a relationship with his current partner. On 5 July 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel Mr Ropiha’s visa. Mr Ropiha seeks a review of that decision. After his release from prison, Mr Ropiha lived in the community for two weeks before being taken into immigration detention at Villawood, where he has resided since mid-July 2012.
The Minister has a discretion to cancel a visa if Mr Ropiha does not satisfy the character test set out in the Migration Act 1958 (the Act). Mr Ropiha does not satisfy this character test because of his criminal history and the issue for determination is how this discretion should be exercised in the circumstances of this case. If Mr Ropiha’s visa is cancelled, he will be removed to New Zealand.
It concluded that -
The fact that Mr Ropiha was so young when he arrived in Australia, has lived in Australia for most of his life and has established strong personal and familial ties in Australia is compelling. The likely adverse affect on his children is also a material consideration that counts against cancellation. In contrast, the seriousness of the offences previously committed, the fact they were repeated and frequent despite Department warnings and the fact there is a real and significant risk of recidivism, are strongly countervailing considerations. In balancing these competing considerations, I must have regard to the principles set out in cl 6.3 of Direction no. 55.
As noted in cl 6.3, remaining in Australia is a privilege conferred on non-citizens in the expectation they are, have been and will be law abiding. Mr Ropiha has abused this privilege and has spent a significant part of the past 17 years either committing criminal offences or in custody. His ability to make a positive contribution to the Australian community has been restricted by his criminal offending and substance abuse. He has had little opportunity to work in gainful employment in Australia, although there is evidence Mr Ropiha has contributed positively in his role as a father for significant periods despite his drug taking. Unfortunately this contribution has been overshadowed by his repeated offending and consequential imprisonment from 2004. While his family and partner earnestly attest to the change in Mr Ropiha’s attitude, his positive influence and potential, all concede this has been a recent development.
The difficult task in this case is therefore to balance protection of the Australian community and the risk of harm if Mr Ropiha reoffends against Mr Ropiha’s ties to the Australian community, the best interests of his minor children in Australia and the effect his removal is likely to have on his family, who are either Australian citizens or permanent residents.
The Minister referred to the recent decision of Deputy President Hack in Re Wipa and Minister for Immigration and Citizenship [2012] AATA 125 in which the Tribunal affirmed the decision of the Minister to cancel Mr Wipa’s visa. This case was said to be similar to Mr Ropiha’s case.
Mr Wipa arrived in Australia when he was four years old, lived most of his life in Australia, had a de facto relationship for several years and had two young children who were born in Australia. Mr Wipa had a history of criminal offending commencing when he was 13 years old. Like Mr Ropiha, Mr Wipa had a history of substance abuse and a difficult upbringing but was “reformed” by the time of the hearing.
Deputy President Hack found that Mr Wipa’s offences were “characterised by a high level of personal violence directed to persons who were essentially strangers to him”. Mr Wipa had ongoing anger management issues which were displayed during the hearing and Deputy President Hack express concern about whether these issues would negatively impact on his children in the future. While Mr Wipa had spent his formative years in Australia, Deputy President Hack found he had not become part of the Australian community and had no apparent links to the wider community or his family.
Mr Ropiha’s case can be distinguished from the facts of this case in a number of important respects. Mr Ropiha crimes were generally not violent in nature and in the cases where he was convicted of assault and affray, his crimes were directed to people he knew, not strangers, although there was one incident of assault on an officer in execution of duty. There is no evidence that Mr Ropiha has directed his anger at his children and the preponderance of evidence is to the effect that Mr Ropiha was a good father for significant periods. Mr Ropiha has spent many years in custody but has also established meaningful relationships with his family, children and partner.
According to the principles in cl 6.3, there is a relationship between the risk of harm and the level of tolerance that the Australian community may afford non-citizens. Mr Ropiha’s criminal record is serious but does not involve conduct that is so serious that any risk of similar conduct in the future would be unacceptable. His offences did not involve vulnerable members of the community and the majority of his crimes did not involve violence and were at the lower end of the scale of seriousness. His crimes were opportunistic, unplanned and largely unsuccessful. Most sentences were 12 months or less. While the risk of harm if Mr Ropiha re-offends is serious and this factor should be given considerable weight, in my view those considerations that weigh in his favour combine to tip the balance against cancellation.
Mr Ropiha has become a part of the Australian community and while his level of engagement and connection has been limited by his substance abuse, criminal activity and his time in custody, there is evidence he has built meaningful relationships with his family, children and partner, who are either Australian citizens or permanent residents, over the past 30 years. There is little evidence that Mr Ropiha has ties with the wider community or that he has positively contributed to the wider community or indeed his family for much of the past 17 years. However, he has made some contribution and, importantly, there is evidence that cancellation would adversely affect his children. Together, these factors are significant enough to militate against cancellation to such an extent that the Australian community would be likely to afford a higher level of tolerance to the possibility of Mr Ropiha re-offending and the resulting risk of harm.
The case is finely balanced because much depends on Mr Ropiha’s abstinence from substance abuse in the future. As noted in the cl 6.3 principles, the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that the non-citizen is law abiding and, relevantly to Mr Ropiha’s case, will remain so. If Mr Ropiha continues with this abuse and repeats his criminal offending in the same manner as in the past 17 years, his contribution to the Australian community will be further diminished and the community will have less tolerance for his criminal offending. Given the previous warnings and the decision of the Minister to cancel Mr Ropiha’s visa on this occasion, if Mr Ropiha re-offends, it is likely the relevant considerations under Direction no.55 will weigh in favour of cancellation. However, at this stage, I find they are balanced in his favour.
I therefore conclude that the correct and preferable decision is that the decision should be set aside and a decision substituted that the Applicant’s visa not be cancelled.


'Response: The Death of the Bisexual Saboteur' by Naomi Mezey in 100 Georgetown Law Journal (2012) 1093-1104 offers a critique of Elizabeth Glazer's 'Sexual Reorientation' [PDF] in 100 Georgetown Law Journal (2012) 997-1054.

Glazer argued that -
There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual-orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of the seven percent of the population identifying as nonheterosexual, forty percent of the men and a large majority of the women identified as bisexual. Bisexuality is now also hypervisible in the law. Recent cases have arisen where plaintiffs have alleged discrimination on the basis of their bisexual orientations and where plaintiffs have been required to prove that they are “gay enough” to merit protection from discrimination. Yet despite this hypervisibility, the law has failed to address the harms that bisexuals face. The problem stems from the law’s current definition of “sexual orientation,” which provides the basis for an actionable discrimination claim. This definition includes only extreme orientations like homosexuality and heterosexuality but, for all practical purposes, excludes bisexuality. 
This Article offers an alternative definition by introducing the distinction between an individual’s General Orientation and Specific Orientation. An individual’s General Orientation is the sex toward which the individual is attracted the majority of the time. An individual’s Specific Orientation is the sex of the individual’s desired or actual partner(s). Whereas for many the two orientations are identical, for bisexuals the two orientations often differ. If adopted, this alternative definition would reorient the concept of sexual orientation under the law. It would offer to the LGBT rights movement, to legislatures, and to courts the opportunity to protect against discrimination on the basis of sexual orienta- tion as it is actually lived, rather than on the basis of sexual orientation as the law has until now imagined it to be. It could also offer to antidiscrimination law a model for the protection of living identities, with respect to sexual orientation but also with respect to other identity categories.
Mezey's critique comments that
Professor Glazer offers us, in Sexual Reorientation, an appealing and intuitive way to deal with the difficulty of bisexual identity, an identity that has always fit uneasily and sometimes quite unhappily in the LGBT rights movement. If the principal problem of bisexuality is its very temporal changeability, its tendency to dissolve into heterosexuality or homosexuality depending on the gender of one's sexual partner, then Glazer's solution is elegant. She proposes that we bifurcate (so to speak) sexual orientation into two subcategories and acknowledge for everyone both a general and a specific orientation. General orientation "is the sex toward which the individual is attracted as a general matter," while specific orientation is determined by the sex of the individual's current partner. Thus, for bisexuals and anyone whose specific coupling does not fall in line with how they generally understand their sexual identity, Glazer's sexual reorientation offers a neat way to own both a general and a specific identity. 
Glazer elaborates on her new categories by analogizing to two deep tensions in the theorizing on sexual identity: the distinctions between status and conduct and between individual and group rights. Glazer suggests that one's sexual identity has a general characteristic -- a "type," as she puts it, such as someone who is normally attracted to women -- that may or may not align with the gender of one's partner at any given time. This general orientation, or type, is analogous to one's sexual "status," whereas one's specific orientation recognizes the act or "conduct" of partnering with a specific person. Moreover, according to Glazer, one's general orientation belongs to each person as an individual while one's specific orientation is necessarily more relational, as it "describes one's sexual orientation once coupled." The result for Glazer is a reorientation of sexual identity that would not only overcome some of the problems presented by the status/conduct distinction and accommodate both individual and relational conceptions of identity, but would also provide the law with the ability to protect "living identities."
 In discussing identity she states that -
One of the refrains throughout Glazer's article is that her reconceptualization of sexual orientation will provide a way to protect "the lived experience of human sexuality," or "living identities.'m I admit an admiration for the elegance and lucidity of her model and acknowledge that it allows for more dynamism than currently exists in our sexual-identity categories by asserting the possibility of an identity not fully defined by the gender of one's current partner. But allowing for more dynamism than currently exists in our sexual-identity categories is a very low hurdle indeed. Along with my admiration is sorrow at how impoverished our collective understandings of sexual identity and desire are that this variation on the standard sexual-orientation scheme could be seen as even beginning to capture lived identity. Not only are our sexual-identity choices sadly limited, but how, when, and why we choose them is complex and partially constrained. Taking into account lived identity requires consideration of the complexities of identity choice; I briefly address that complexity by looking at the processes of socialization, external identification, and interpellation. 
Glazer uses a New York Magazine story about the "Cuddle Puddle" at Stuyvesant High School - teens who pet boys and girls alike and shun labels - to suggest that a post-gay generation that calls their sexual orientation "just, whatever" is insufficient to the legal and human need for categories. Are our lived identities so circumscribed and oppressed by sexual-orientation categories that a group of teenagers getting off with each other irrespective of gender and identity seems outside the bounds of the law and the human? Can any new recombination of old sexual-orientation categories really get anywhere close to our lived experience, which I fervently hope and believe far surpasses the paucity of categories around which we continue to organize our self- conceptions, social judgments, laws, and politics? 
While I deeply appreciate Glazer for momentarily retrieving my work from the dustbin of legal scholarship, less evident in her account of my bisexuality article is the way in which it fought against the relegitimation of sexual- orientation categories and proposed a classification based on acts not as a revision of sexual orientation, but as a way to smoke out the many different forms of bisexual and even non-gender-based sexual activities and preferences as they are actually lived and experienced. Inspired by the queer interventions of Eve Kosofsky Sedgwick, I thought that perhaps talking about acts rather than identity would help unsettle the discursive hegemony of the hetero/homo regime. I would have thought after all this time that the legacy of Sedgwick specifically and queer studies generally would have delivered us into a fuller understanding of sexuality as it is, and could still be, lived. 
Even if we were content to continue to organize our sexual understandings in the traditional ways, allowing for the reorientation Glazer suggests, what ex- actly does it mean to claim a general and specific orientation? What does it mean to identify the "the sex toward which [one] is attracted the majority of the time"? How do we know what we are and when we are it? For example, I am in a long-term monogamous relationship with a man, and whatever else it may say about my own lack of imagination, what does that mean for my general orientation? Is it a way to describe my actual psychic or fantasy life? Is it a hypothetical category of whom I would consider having sex with if I were to have sex with other people? Is it a history of the gender choices I made in my past couplings? Nor is specific orientation self-evident. What, for example, is the specific orientation of a cisgendered woman who couples with a transgendered man when both wish to have a queer relationship? 
And even if we think we can identify our specific or general orientations, what does it mean to choose them: for whom does it matter or make a difference? And when? Not only is there an enormous amount of variety, change, and unknowability that is rendered static by the term "general orienta- tion," but self-identification seems an unnecessarily simplistic way to think through how we understand our desires, preferences, and sexual choices, and it ignores the powerful effects of how others perceive us. Identities are not just lived and understood through our self~narrations, but through socialization, external identification, and interpellation. Ruth Colker's response to Glazer engages the issue of sexual socialization, and the way the sexual acts and identities we choose (and don't choose) are always partly the product of legal, cultural, and familial socialization. The facts of socialization or any external influences on our identity choices may feel oppressive and limiting, but that doesn't mean they don't exist and that they don't render some identities more available and more likely than others. 
In addition, identities are also experienced and negotiated through the perceptions of others. Along some axes and in some circumstances, it may make perfect sense for me to identify as bisexual, but absent a cardboard sign, a scarlet letter, or an interrogation by the NAGAAA, I am also rightly perceived and treated as straight-by my extended family, by my children's friends and teachers, by doctors, waiters, colleagues, and students, and even by my own friends who know otherwise. It would feel absurd to continue to insist in each of these quotidian encounters that I am not what I seem, that despite my social existence and social privilege as a perceived straight person that my general orientation is "actually bi." What does it mean to be "actually bi" anyway, and on what basis should I insist on it? I don't want to deny my queerness, but neither do I want to insist on it despite the substantial evidence to the contrary. Neither feels right and nothing about a sexual reorientation offers an "out." 
Lastly, self-identification, socialization, and external identification are related to each other through interpellation, which complicates the very distinction between specific and general orientation. Louis Althusser used the concept of interpellation to explain the process by which ideology renders the abstract individual into an intelligible subject. To wildly oversimplify, there is no self-understanding independent from socialization and external identification. All of our "individual" desires, preferences, and beliefs are partly the product of a complex process of ideological inculcation on the part of what Althusser inelegantly called "Ideological State Apparatuses," things like the media, family, law, education, religion, etc. When we are "hailed" by another, we are made recognizable to ourselves; it "guarantee[s] for us that we are indeed concrete, individual, distinguishable and (naturally) irreplaceable subjects." To analogize interpellation to the processes by which we are made specifically into sexual subjects, our sexual self-identification is always the product of both the categories available and the way we are hailed by others to fit within those categories. Therefore, we cannot entirely understand our general sexual orientation apart from our specific orientation. Our specific orientation influences the way we are hailed and constructed as sexual subjects by others, and the way we account for that sexual subjectivity is limited and influenced by the categories and social narratives available. For example, how can Sandy Stier account for her general orientation? The fact that she is in a long-term (presumably monogamous) relationship with Kris Perry means that she is consistently interpellated as gay in much the same way that I am consistently interpellated as straight. It influences one's self-conception and "general" sexual identity to go through the world being recognized, reflected, and narrated in a particular way by friends and strangers alike. The default social script for Sandy Stier is indeed the one offered by her lawyers and prepackaged by the gay rights movement: she discovered her "true" and "authentic" sexual identity by falling in love with Kris Perry. In this way, even if she were inclined to claim a general orientation as a bisexual, such a choice is complicated by the social and political reality of her specific relationship and the way in which it interpellates her as gay. By not accounting for the complications of sexual-identity choice and the subtle processes of socialization, external identification, and interpellation, Glazer's sexual reorientation can't begin to capture the complexities of lived identity and identification.

Honour and Speech

I recently noted publicity regarding alleged appropriation of awards by John Hines and his brother, allegations that if confirmed involve behaviour that is both reprehensible and illegal but perhaps reflects a delusive state on the part of the offenders.

''What is that Honor?': Re-Thinking Free Speech in the 'Stolen Valor' Case' (Indiana University Robert H. McKinney School of Law Research Paper No. 2012-20) by R. George Wright
addresses the recent emotionally-charged Supreme Court case of United States v. Alvarez. In Alvarez, the Court struck down on free speech grounds the Stolen Valor Act, which, in effect, prohibited lying claims to have been personally awarded particular military medals. The Article first presents four distinctive reasons why, if possible, the Court should have avoided deciding this case on free speech grounds. The Article then argues that if the Court was nevertheless somehow bound to reach the free speech merits, the same four reasons presented above should have persuaded the Court to have upheld the statute. Among the relevant considerations are an appropriate degree of judicial modesty under the particular circumstances, and the only minimal degree to which the logic and value of free speech were realistically implicated in the case. 
Wright concludes -
Judicial modesty in Alvarez makes perfect sense in the context of a contemporary culture with diverse strains of thought and preference on the subject of military honor, ranging, as we have suggested, at least from Falstaff to Quixote. The contemporary political philosopher Charles Taylor has briefly summarized the history of one side of our ambivalence toward military honors:
[t]he ethic of honour and glory, after receiving one of its most inspiring expressions in Corneille, is subjected to a withering critique in the seventeenth century. Its goals are denounced as vainglory and vanity, as the fruits of an almost childish presumption. We find this with Hobbes as well as with Pascal, La Rochefoucauld, and Moliere. But the negative arguments in these writers are not new. Plato himself was suspicious of the honour ethic, as concerned with mere appearances. The Stoics rejected it; and it was denounced by Augustine as the exaltation of the desire for power. ….
The inclination to disparage military-related honor in particular was, of course, hardly exhausted in the Seventeenth Century. 
Another contemporary political philosopher, Kwame Anthony Appiah, takes a more ambivalent, if not warily favorable, approach to military honor. Professor Appiah writes that
[t]hose who train our armies claim that military honor is essential in both motivating and civilizing the conduct of warfare. . . . I am inclined to believe them. But the trouble, of course, is that sentiments [of military honor] -- and what even moderately sensitive soul does not feel the temptation of responding to the call of those bugles? -- make us more likely to go to war.
And of course, there are more unambiguously favorable assessments of the value of military and related forms of honor as well. Among contemporary writers, Alexander Welsh and Sharon Krause99 both note that honor can inspire the valuable subordination, or even the complete sacrifice, of one's most basic personal interests, potentially for the community's greater good. 
The range of plausible evaluations of military honor, and of the necessity for particular formal systems thereof, varies widely. What would be implausible is the claim that what is necessary in order to cost-effectively assess such matters is legal training, a judicial temperament, and exposure to a judicial record. Assessing such matters is ultimately a matter of the best cost-effective practical wisdom and prudential judgment a culture, or some particular institution, can bring to bear. 
In the absence of any serious free speech values meaningfully hanging in the balance, the Court should have sought to avoid deciding Alvarez on constitutional free speech merits. If the latter course was indeed unavoidable, the Court should have acknowledged its lack of any decisive comparative advantage over Congress in judging such contestable matters, and deferred to any reasonable congressional regulatory scheme.  An appropriate judicial modesty, in the absence of any significant countervailing values, would have discouraged any more ambitious judicial undertaking.

Fake Names, Flights and Cth Penalties

The Commonwealth Attorney-General is spruiking new legislation that features restrictions on the use of pseudonyms, for example to book/use airline tickets.
White collar criminals and serious and organised crime groups will face tougher penalties under new laws introduced into Parliament today. The Crime Bill will increase financial penalties for all Commonwealth crimes, create a new offence of using a false identity when travelling on aeroplanes and speed up the proscribing of new illegal drugs. 
"Penalty units" in the Commonwealth Crimes Act will increase from $110 to $170. Penalty units have not increased since 1997. "Crime doesn't pay. These new laws will make it easier to fight identity crime, new and emerging drug importation and trafficking and white collar tax crimes," the Attorney-General said. 
"Identity theft is one of the fastest growing crimes in Australia. This Bill will make it a criminal offence to use a false identity when travelling within Australia by air or booking domestic flights online or using a mobile phone. "Organised criminals invent or steal identities in order to evade detection and commit serious crimes such as money laundering, drug offences, fraud and terrorism. 
"This Labor Government is increasing the value of the "penalty unit" to $170 to make sure penalties keep pace with inflation and are a real deterrent to white collar and organised crime. 
For example: A person who dishonestly uses the financial information of another person without their consent will face up to $51,000 in fines, up from $33,000. Companies who commit this crime could be liable for more than a quarter of a million dollars in fines, up from $165,000; A person who knowingly makes a false or misleading statement in documents they lodge with ASIC will face up to $34,000 in fines, up from $22,000. A company will be liable for up to $170,000 in fines, up from $110,000.
The identity provisions are in schedule 2 of the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Bill 2012 (Cth).

In particular the Criminal Code is to be amended through insertion of a new s 372.1A ('Dealing in identification information that involves use of a carriage service')
Dealing in identification information using a carriage service 
(1) A person (the first person) commits an offence if:
(a) the first person deals in identification information; and
(b) the first person does so using a carriage service; and 
(c) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of: (i) committing an offence; or (ii) facilitating the commission of an offence; and 
(d) the offence referred to in paragraph (c) is: (i) an indictable offence against a law of the Commonwealth; or (ii) an indictable offence against a law of a State or Territory; or (iii) a foreign indictable offence. 
Penalty: Imprisonment for 5 years
'Deal' encompasses "make, supply or use any such information"
Dealing in identification information obtained using a carriage  service 
(3) A person (the first person) commits an offence if:
(a) the first person obtains identification information; and 
(b) the first person does so using a carriage service; and 
(c) the first person deals in the identification information; and 
(d) the first person intends that any person (the user) (whether or not the first person) will use the identification information to pretend to be, or to pass the user off as, another person (whether living, dead, real or fictitious) for the purpose of: (i) committing an offence; or (ii) facilitating the commission of an offence; and 
(e) the offence referred to in paragraph (d) is: (i) an indictable offence against a law of the Commonwealth; or (ii) an indictable offence against a law of a State or Territory; or (iii) a foreign indictable offence. 
Penalty: Imprisonment for 5 years.
The Bill also provides for amendment of the Crimes Act 1914 (Cth) through new sections regarding 'False Identity and Air Travel'.

A new Division 3B ('Powers to require identity information at airports') is inserted in Division IAA. Section 3UM ('Identity information at airports') provides for
(1) A constable may make a request under this section of a person (a  suspect) if:
(a) the request is made at a constitutional airport; and 
(b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth, or a law of a State or Territory, punishable by imprisonment for 12 months or 9 more.
(2) A constable may also make a request under this section of a person (a suspect) if:
(a) the request is made at an airport other than a constitutional airport; and; 
(b) the constable reasonably suspects that the suspect has committed, is committing or intends to commit an offence against a law of the Commonwealth punishable by imprisonment for 12 months or more.
Evidence of identity 
(3) The constable may request the suspect to give the constable evidence of the suspect's identity by:
(a) producing a government photographic identity document issued in relation to the suspect, if held by the suspect; and 
(b) if the suspect does not produce a government photographic identity document as requested under paragraph (a) -- producing another identity document in relation to the suspect, if held by the suspect; and 
(c) if the suspect does not produce an identity document as requested under paragraph (a) or (b) -- giving the constable the suspect's name and address
Constable's duties  
(4) The constable must, before making a request under subsection (3):
(a) if the constable is not in uniform (i) show the suspect evidence that the constable is a 1 constable; and (ii) if the suspect requests -- comply with subsection (5); ;
(b) in any case -- inform the suspect that it may be an offence not to comply with the request, or to give the constable a false or misleading document, or false or misleading information, in response to the request.
(5) If the constable is not in uniform, the constable must give the suspect any of the following information if requested by the suspect:
(a) the constable's name; 
(b) the address of the constable's place of duty; 
(c) the constable's identification number (if any); 
(d) if the constable has no identification number -- the constable's rank
The proposed section 3UN deals with offences relating to section 3UM
Offence by suspect 
(1) A person commits an offence if: 
(a) a constable makes a request of the person under subsection 3UM(3); and 
(b) the person fails to comply with the request; and  
(c) the constable complies with subsection 3UM(4).  
Penalty: 20 penalty units
 The proposed Division 376 ('False identity and air travel') covers
376.2 False identification information--at constitutional airports   
(1) A person (the defendant) commits an offence if:
(a) the defendant uses information at a place; and  
(b) the defendant does so reckless as to whether the information is used to identify the defendant as a passenger on a flight; and  
(c) the information is identification information; and  
(d) the information is false in relation to the defendant; and  
(e) the place is a constitutional airport.  
Penalty: Imprisonment for 12 months.
A  constitutional airport is "a Commonwealth aerodrome" or a Territory  airport.

Section 376.3 deals with 'False identification information--air passenger tickets obtained using a carriage service'
Carriage service offence--using information to obtain an air passenger ticket
(1) A person (the defendant) commits an offence if: 
(a) the defendant uses information; and  
(b) the defendant does so: (i) with the result that an air passenger ticket for a flight is obtained (whether by the defendant or another person); and (ii) reckless as to whether the information is used to identify the defendant, or another person, as a passenger on the flight; and  
(c) the information is identification information; and  
(d) the information is false in relation to the person who takes, or intends to take, the flight using the ticket; and  
(e) a carriage service is used (whether by the defendant or another person) to obtain the ticket; and  
(f) the flight starts or ends within Australia.  
Penalty: Imprisonment for 12 months. 
 Carriage service offence--taking a flight using an air passenger ticket  
(2) A person (the defendant) commits an offence if: 
(a) the defendant takes a flight using an air passenger ticket; and  
(b) identification information was used (whether by the defendant or another person) to obtain the ticket; and  
(c) the information resulted in the identification of a person as a passenger on the flight; and  
(d) the information is false in relation to the defendant; and   
(e) a carriage service was used (whether by the defendant or another person) to obtain the ticket; and  
(f) the flight starts or ends within Australia.  
Penalty: Imprisonment for 12 months. 
(3) In a prosecution for an offence against subsection (1) or (2), if the prosecution proves beyond reasonable doubt that an air passenger ticket was obtained, then it is presumed, unless the defendant proves to the contrary, that a carriage service was used to obtain the ticket. 
Under the proposed s 376.4 ('False identification information--air passenger tickets for constitutional flights') ….
Constitutional flight offence--using information to obtain an air passenger ticket 
(1) A person (the defendant) commits an offence if: 
(a) the defendant uses information; and  
(b) the defendant does so: (i) with the result that an air passenger ticket for a flight is obtained (whether by the defendant or another person); and (ii) reckless as to whether the information is used to identify  the defendant, or another person, as a passenger on the flight; and   
(c) the information is identification information; and  
(d) the information is false in relation to the person who takes, or intends to take, the flight using the ticket; and  
(e) the flight is a constitutional flight.  
Penalty: Imprisonment for 12 months

11 October 2012

US Genes and Privacy report

The US Presidential Commission for the Study of Bioethical Issues has released Privacy and Progress in Whole Genome Sequencing.

The 154 page report concludes that
to realize the enormous promise that whole genome sequencing holds for advancing clinical care and the greater public good, individual interests in privacy must be respected and secured. As the scientific community works to bring the cost of whole genome sequencing down from millions per test to less than the cost of many standard diagnostic tests today, the Commission recognizes that whole genome sequencing and its increased use in research and the clinic could yield major advances in health care. However it could also raise ethical dilemmas. The Commission offers a dozen timely proactive recommendations that will help craft policies that are flexible enough to ensure progress and responsive enough to protect privacy. 
The Commission has aimed to
find the most feasible ways of reconciling the enormous medical potential of whole genome sequencing with the pressing privacy and data access issues raised by the rapid emergence of low-cost whole genome sequencing. The life-saving potential of genome sequencing depends on gathering genetic information from many thousands (perhaps millions) of individuals, most of whom will not directly benefit from the research. Those who are willing to share some of the most intimate information about themselves for the sake of medical progress should be assured appropriate confidentiality, for example, about any discovered genetic variations that link to increased likelihood of certain diseases, such as Alzheimer’s, diabetes, heart disease and schizophrenia. Without such assurance in place, individuals are less likely to voluntarily supply the data that have the potential to benefit us all with life-saving treatments for genetic diseases. Everyone stands to gain immensely from our society taking the necessary steps to protect privacy in order to facilitate progress in this era of whole genome sequencing.
The Commission reports that
Realizing the promise of whole genome sequencing requires widespread public participation and individual willingness to share genomic data and relevant medical information. In other words, scientists and clinicians must have access to data from large numbers of people who are willing to share their private information. This in turn requires public trust that any whole genome sequence data shared by individuals with clinicians and researchers will be adequately protected
It indicates that 
Large-scale collections of genomic data raise serious concerns for the individuals participating. One of the greatest of these concerns centers around privacy: whether and how personal, sensitive, or intimate knowledge and use of that knowledge about an individual can be limited or restricted (by means that include guarantees of confidentiality, anonymity, or secure data protection). Because whole genome sequence data provide important insights into the medical and related life prospects of individuals as well as their relatives— who most likely did not consent to the sequencing procedure—these privacy concerns extend beyond those of the individual participating in whole genome sequencing. These concerns are compounded by the fact that whole genome sequence data gathered now may well reveal important information, entirely unanticipated and unplanned for, only after years of scientific progress.
Another privacy concern associated with whole genome sequencing is the potential for unauthorized access to and misuse of information. For example, in many states someone could legally pick up a discarded coffee cup and send a saliva sample to a commercial sequencing entity in an attempt to discover an individual’s predisposition to neurodegenerative disease. The information might then be misused, for example, by a contentious spouse as evidence of unfitness to parent in a custody case. Or, the information might be publicized by a malicious stranger or acquaintance without the individual’s knowledge or consent in a social networking space, which could adversely affect that individual’s chance of finding a spouse, achieving standing in a community, or pursuing a desired career path.
Realizing the promise of whole genome sequencing requires widespread public participation and individual willingness to share genomic data and relevant medical information. This, in turn, requires public trust that any whole genome sequence data shared by individuals with clinicians and researchers will be adequately protected. Current U.S. governance and oversight of genetic and genomic data, however, do not fully protect individuals from the risks associated with sharing their whole genome sequence data and information. In particular, a great degree of variation exists in what protections states afford to their citizens regarding the collection and use of genetic data. Only about half of the states, for example, offer protections against surreptitious commercial genetic testing. Currently, the majority of the benefits anticipated from whole genome sequencing research will accrue to society, while associated risks fall to the individuals sharing their data. This report focuses on reconciling the enormous public benefits anticipated from whole genome sequencing research with the potential risks to privacy of individuals, and the protections that must be foremost in our minds as we focus our policies to facilitate such privacy and progress.
Basic Ethical Principles for Assessing Whole Genome Sequencing
Laws and regulations cannot do all of the work necessary to provide sufficient privacy protections for whole genome sequence data. The Commission has been mindful of how the five ethical principles set out in its first report, New Directions: The Ethics of Synthetic Biology and Emerging Technologies, apply to the ethics of whole genome sequencing. These principles—which flow from the ideal of respect for persons—are public beneficence, responsible stewardship, intellectual freedom and responsibility, democratic deliberation, and justice and fairness. This report ... enlists these principles along with those set forth in the Belmont Report (a landmark statement of ethics for research involving human participants). Privacy and Progress focuses on recommendations aimed at pursuing and securing the public benefits anticipated from whole genome sequencing while minimizing the potential privacy risks to individuals.
These principles suggest ethically important and practically useful guidelines for whole genome sequencing. Chief among these is the principle of respect for persons, which requires strong baseline protections for privacy and security of data, while public beneficence requires facilitating ample opportunities for data sharing and access to data by clinicians, researchers, and other authorized users. Respect for persons further requires that any collection and sharing of individual data be based on a robust process of informed consent. Responsible stewardship calls for oversight and management of whole genome sequence information by funders, managers, professional organizations, and others. The principle of intellectual freedom and responsibility provides further support for pursuing whole genome sequencing and seeking models for broad data sharing by promoting regulatory parsimony. Democratic deliberation urges all parties to consider changes to policies and practices in light of the evolving science and its implications for enduring ethical values. Finally, justice and fairness requires that we seek to channel the benefits of whole genome sequencing to all who can potentially benefit, and to ensure that the risks are not disproportionately borne by any subset of the population, including vulnerable or marginalized groups.
The report offers several recommendations as follows
Currently we are in a period of intense transition with respect to integrating whole genome sequencing into clinical care, as well as facilitating access to and use of whole genome sequence data for research purposes. Moreover, the challenges we face today are not precisely the same challenges we will face in one, five, or ten years, as genomic technologies continue to develop and mature. Due to the rapid development of technology, we need to craft policies that are flexible and agile enough to ensure that we do not constrain our ability to adapt to evolving technology and social norms related to privacy and access.
Recognizing that ethical obligations reach beyond what is legally enforceable, the Commission examines both the relevant ethical principles and the relevant legal requirements to offer guidance as to what (ethically) ought to be done and what (legally) must be done. This is the foundation on which the Commission builds its Privacy and Progress recommendations.
 Strong Baseline Protections While Promoting Data Access and Sharing
Presently, many national and state policies are in place to guard personally identifiable health information and records of participation in research. These policies should apply to all handlers of the data, from those who collect the data, to researchers who use them, to third-party storage and analysis providers (e.g., hosts of cloud computing services). Privacy protections should guard against unauthorized access to, and illegitimate uses of, whole genome sequence data and information while allowing for authorized users of these data to advance individual and public health.
Recommendation 1.1
Funders of whole genome sequencing research; managers of research, clinical, and commercial databases; and policy makers should maintain or establish clear policies defining acceptable access to and permissible uses of whole genome sequence data. These policies should promote opportunities for models of data sharing by individuals who want to share their whole genome sequence data with clinicians, researchers, or others.
Strong baseline privacy protections require a spectrum of policies starting with data handling through the protection of persons from future disadvantage and discrimination arising from misuse of their whole genome sequence data. It is critical, however, to ensure that privacy regulations allow individuals to share their own whole genome sequence data with clinicians, researchers, and others in ways that they choose.
Recommendation 1.2
The Commission urges federal and state governments to ensure a consistent floor of privacy protections covering whole genome sequence data regardless of how they were obtained. These policies should protect individual privacy by prohibiting unauthorized whole genome sequencing without the consent of the individual from whom the sample came.
Treating like data alike is crucial to ensuring consistent protections for whole genome sequence information across the United States. Although states should enact genomic policies that are most relevant and important to their constituents, bringing such protections to a minimum standard that addresses privacy—while still allowing individuals to share their own data—would provide just and fair protections regardless of where one happens to reside.
 Data Security and Access to Databases
Data privacy requires data security. Data security requires ethical responsibility and accountability from all those who handle whole genome sequence data. It must further be supported by policies and infrastructure to protect safe sharing of data.
Recommendation 2.1
Funders of whole genome sequencing research; managers of research, clinical, and commercial databases; and policy makers should ensure the security of whole genome sequence data. All persons who work with whole genome sequence data, whether in clinical or research settings, public or private, must be: 1) guided by professional ethical standards related to the privacy and confidentiality of whole genome sequence data and not intentionally, recklessly, or negligently access or misuse these data; and 2) held accountable to state and federal laws and regulations that require specific remedial or penal measures in the case of lapses in whole genome sequence data security, such as breaches due to the loss of portable data storage devices or hacking. Many observe that absolute privacy is not possible in this, or many other realms. The greater potential for harm is not by virtue of authorized others knowing about one’s whole genome make-up, but rather through the misuse of data that have been legally accessed.
Recommendation 2.2
Funders of whole genome sequencing research; managers of research, clinical, and commercial databases; and policy makers must outline to donors or suppliers of specimens acceptable access to and permissible use of identifiable whole genome sequence data. Accessible whole genome sequence data should be stripped of traditional identifiers whenever possible to inhibit recognition or re-identification. Only in exceptional circumstances should entities such as law enforcement or defense and security have access to biospecimens or whole genome sequence data for non health-related purposes without consent.
The consent process should communicate limits on access to and use of genomic data to those having their whole genome sequenced in clinical care, research, and consumer-initiated contexts. These policies should apply to the original recipient of the data as well as to all parties who work with the data, from those who collect the sample or data through third-party storage and analysis service providers. Those who work with whole genome sequence data should remain current on regulations regarding data privacy and security.
Recommendation 2.3
Relevant federal agencies should continue to invest in initiatives to ensure that third-party entrustment of whole genome sequence data, particularly when these data are interpreted to generate health-related information, complies with relevant regulatory schemes such as the Health Insurance Portability and Accountability Act and other data privacy and security requirements. Best practices for keeping data secure should be shared across the industry to create a solid foundation of knowledge upon which to maximize public trust. Whole genome sequence data not stripped of traditional identifiers are considered “protected health information” and are covered under the Health Insurance Portability and Accountability Act’s Privacy, Security, and Enforcement Rules and the federal Common Rule for protecting human research participants. The same regulations, policies, and ethical guidelines that protect such health information should also be in place to govern the sharing of whole genome sequence data with third-party storage and analysis service providers. Public and the private sector parties should share their lessons learned to promote efficiency and avoid duplicating efforts.
Not unique to whole genome sequencing, a well-developed, understandable, informed consent process is essential to ethical clinical care and research. To educate patients and participants thoroughly about the potential risks associated with whole genome sequencing, the consent process must include information about what whole genome sequencing is; how data will be analyzed, stored, and shared; the types of results the patient and participant can expect to receive, if relevant; and the likelihood that the implications of some of these results might currently be unknown, but could be discovered in the future. Respect for persons requires obtaining fully informed consent at the outset of diagnostic testing or research.
Recommendation 3.1
Researchers and clinicians should evaluate and adopt robust and workable consent processes that allow research participants, patients, and others to understand who has access to their whole genome sequences and other data generated in the course of research, clinical, or commercial sequencing, and to know how these data might be used in the future. Consent processes should ascertain participant or patient preferences at the time the samples are obtained.
Recommendation 3.2
The federal Office for Human Research Protections or a designated central organizing federal agency should establish clear and consistent guidelines for informed consent forms for research conducted by those under the purview of the Common Rule that involves whole genome sequencing. Informed consent forms should: 1) briefly describe whole genome sequencing and analysis; 2) state how the data will be used in the present study, and state, to the extent feasible, how the data might be used in the future; 3) explain the extent to which the individual will have control over future data use; 4) define benefits, potential risks, and state that there might be unknown future risks; and 5) state what data and information, if any, might be returned to the individual. Each Common Rule agency has its own enforcement authorities to protect research participants. All agencies should work together as they develop clear and consistent guidelines for their informed consent forms. Clinical consent documents for whole genome sequencing will have to address a number of issues specific to whole genome sequencing: an explanation of the science, whether whole genome sequence data collected for clinical applications will be made available for research purposes, and what types of results will be produced through whole genome sequencing. For example, an important unsettled issue is the ethics of reporting incidental findings to individuals— that is, information gleaned from whole genome sequencing research or clinical practice that was not its intended or expected object.
Recommendation 3.3
Researchers, clinicians, and commercial whole genome sequencing entities must make individuals aware that incidental findings are likely to be discovered in the course of whole genome sequencing. The consent process should convey whether these findings will be communicated, the scope of communicated findings, and to whom the findings will be communicated.
Recommendation 3.4
Funders of whole genome sequencing research should support studies to evaluate proposed frameworks for offering return of incidental findings and other research results derived from whole genome sequencing. Funders should also investigate the related preferences and expectations of the individuals contributing samples and data to genomic research and undergoing whole genome sequencing in clinical care, research, or commercial contexts. Individuals undergoing whole genome sequencing in research, clinical, and commercial contexts must be provided with sufficient information in informed consent documents to understand what incidental findings are, and to know if they will or will not be notified of incidental findings discovered as a result of whole genome sequencing.
 Facilitating Progress in Whole Genome Sequencing
Currently, large amounts of patient data are being collected in the health care setting, stripped of traditional identifiers, analyzed, and fed into research that might one day improve clinical care. This “learning health system” model both translates advances in health services research into clinical applications and collects data during clinical care to facilitate further advances in research. Learning health system advocates and others support standardized electronic health record systems and infrastructure to facilitate health information exchange so that data can be easily aggregated and studied. Integrating whole genome sequence data into health records in the learning health system model can provide researchers with more data to perform genome-wide analyses, which in turn can advance clinical care.
Recommendation 4.1
Funders of whole genome sequencing research, relevant clinical entities, and the commercial sector should facilitate explicit exchange of information between genomic researchers and clinicians, while maintaining robust data protection safeguards, so that whole genome sequence and health data can be shared to advance genomic medicine.
Current sequencing technologies and those in development are diverse and evolving, and standardization is a substantial challenge. Ongoing efforts are critical to achieving standards for ensuring the reliability of whole genome sequencing results, and facilitating the exchange and use of these data.
Recommendation 4.2
Policy makers should promote opportunities for the public to benefit from whole genome sequencing research. Further, policy makers and the research community should promote opportunities for the exploration of alternative models of the relationship between researchers and research participants, including participatory models that promote collaborative relationships. Respect for persons implies not only respecting individual privacy, but also respecting research participants as autonomous persons who might choose to share their own data. Public beneficence is advanced by giving researchers access to plentiful data from which they can work to advance health care. Regulatory parsimony recommends only as much oversight as is truly necessary and effective in ensuring an adequate degree of privacy, justice and fairness, and security and safety while pursuing the public benefits of whole genome sequencing. Therefore, existing privacy protections and those being contemplated should be parsimonious and not impose high barriers to data sharing. While the Commission supports the intellectual freedom this access will encourage, clinicians and researchers must also act responsibly to earn public trust for the research enterprise.
 Public Benefit
Thousands of citizens have participated in whole genome sequencing research personally, and all citizens help to support government investment in whole genome sequencing through their general participation in and support of our political system. Therefore, all citizens should have the opportunity to benefit from medical advances that result from whole genome sequencing.
Special caution should be taken on the part of researchers to ensure that their participants accurately reflect as much as possible the rich diversity of our population. Different groups have genomic variants at different frequencies within their populations, and sufficiently diverse data must be collected so that advances arising from whole genome sequencing can be used for the benefit of all groups.
Recommendation 5
The Commission encourages the federal government to facilitate access to the numerous scientific advances generated through its investments in whole genome sequencing to the broadest group of persons possible to ensure that all persons who could benefit from these developments have the opportunity to do so.
Government investment in genomic research has resulted in public benefit through improved health care and in economic return on investment. The principle of justice and fairness requires that the benefits and risks of whole genome sequencing be distributed equitably across society. Research funded with taxpayer contributions should benefit all members of society. To these ends, researchers should be vigilant about including individuals from all sectors of society in their studies, so that research findings can be translated widely into improved clinical care. The federal government should follow through on its investment in research and assure that the discoveries of whole genome sequencing are integrated with clinical care to benefit the health of all.


'If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law' by Jan Smits, Andrei Ernst, Steven Iseger & Nida Riaz considers how the law is perceived in hip-hop music.
Lawyers solve concrete legal problems on basis of certain presuppositions about morality, legality and justice that are not always shared by non-lawyers. This is why a thriving part of academic scholarship deals with what we can learn about laymen’s perceptions of law from studying novels (law and literature) or other types of popular culture. This article offers an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics from fiveUS artists (Eminem, 50 Cent, Dr. Dre, Ludacris and Jay-Z) and 6 UK artists (Ms Dynamite, Dizzee Rascal, Plan B, Tinie Tempah, Professor Green and N-Dubz).
After a methodological part, the article identifies four principles of hip-hop law. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for a presumably inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect others within the hip-hop community: any form of ‘dissing’ will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage where possible, and to be ignored if not useful. All four principles can be related to a view of the law as a way to survive in the urban jungle.
 The authors comment that
There is a growing interest in the relationship between popular music and the law. Building upon the success of the law and literature-movement, an increasing number of authors investigate how law and popular culture, including music, interrelate. Articles were already written on references to the law in lyrics by musicians as diverse as Bob Dylan, Tina Turner and Bruce Springsteen. It is in this respect surprising that the interest in the interrelationship between hip-hop music and the law is lagging behind. Although hip-hop has become one of the most popular types of popular music, and its lyrics contain frequent references to the law, there has never been a systematic cross-country study of law and hip-hop. This article intends to fill this vacuum by offering an inventory and analysis of how the law is perceived in lyrics of a number of important American and British hip-hop artists.
There are at least four ways in which hip-hop and the law can be related to each other. First, and most important in our view, hip-hop lyrics can inform us about an alternative perception of the law. While official institutions such as legislatures and courts express a mainstream view of the law, hip-hop lyrics convey how the law is understood in an influential subculture. In much the same way as the law and literature-movement claims that reading novels can provide us with a narrative that is missed in a traditional account of the law, listening to hip-hop lyrics helps us to understand how law can be seen differently. Thousands of available lyrics inform us about life in the urban ghettos of today and thus provide information about law in a bottom up way that is otherwise very difficult to access. Put differently: lyrics provide insights that could otherwise only become available through time-consuming sociological or anthropological research.
Second, knowledge about how the law is represented in hip-hop music can be important to understand the behaviour of an individual claimant or defendant. Popular culture in the form of literature, films, television series and music affects a layperson’s perception of the law. It thus often adds to the emancipation of the layperson’s legal mind in a much better way than the official institutions could ever do. The general audience is for example well aware of the rights it has when being arrested as a result of the many television series and films in which the police actually reads the defendant his or her rights. A better understanding of where individuals derive their legal knowledge from – even if based on false information – can be useful to the judiciary when making decisions.
Third, reading hip-hop lyrics can also be relevant for a view of what the law ought to be like. Butler rightly remarks for the area of criminal justice that if we adopt the perspective of John Rawls’ philosophy of law, the ‘hip-hop nation’ is best situated to design a regime for the punishment of criminals. If law is the most just if it is designed by people who do not know in advance what their place in society will be – as Rawls claims – minority groups such as rappers surviving in the urban ghetto (or those associating themselves with them) are much better able to imagine a fair criminal system than well-educated members of parliament or high ranking judges who are themselves less likely to be affected by the justice system. Hip-hop artists are in the best position to narrate about the thin line between being a victim and an offender, suggesting that their ideal legal system would value both positions.
Finally, hip-hop and the law are related when the question needs to be answered whether lyrics can be admitted as criminal evidence. If lyrics are seen as autobiographical, and thus depict real life events, they can play a role in revealing the criminal intent of the defendant. This use of hip-hop lyrics is commonly accepted in the United States courts. For example, in the case of United States v Foster, the defendant was caught carrying two suitcases full of drugs. The police found a handwritten rap lyric in his bag containing the sentence "Key for Key, Pound for Pound, I’m the biggest Dope Dealer and I serve all over town". This line was accepted as evidence for the defendant’s intention to distribute drugs. The focus in this article is on the first and third aspect. Our aim is to investigate whether it is possible to find legal principles immanent in hip-hop lyrics. If the creation of a legal system were left to rappers, what would this system look like and in what way would it differ from existing legal systems? We do not assume a coherent and largely uniform view of the law in all varieties of hip-hop produced around the world, but we do believe that the artists we selected are representative for the hip-hop movement. After an explanation of our methodology (section 2), we proceed with an identification of the principles we were able to identify in the reviewed lyrics (section 3).Section 4 concludes.
They conclude -
The aim of this article is to offer an inventory and analysis of how the law is perceived in a representative sample of hip-hop lyrics. Our analysis shows that four main principles would be part of a legal system designed by hip-hop artists. First, criminal justice is based on the age-old adage of an eye for an eye, reflecting the desire to retaliate proportionately against any offense. Second, self-justice and self-government reign supreme in a hip-hop version of the law: instead of waiting for an inaccurate community response, it is allowed to take the law into one’s own hands. Third, there is an overriding obligation to respect anyone else within the hip-hop community, meaning that any ‘dissing’ is not allowed and will be severely punished. Finally, the law is seen as an instrument to be used to one’s advantage wherever possible and to be ignored if not considered useful.
The question remains what overall view of justice the lyrics reflect. We believe that Professor Green is a keen observer of the philosophy underlying the four principles. In his song ‘Jungle’ (2010), he raps that there is no point in being a law-abiding citizen in a city in which it is all about the survival of the fittest by preying on the weak. He sings that particularly on council estates people act like animals and stab, shoot and beat each other. "I see no point in living life that right, so I just take what I can find (…) Welcome to Hackney, a place where I think somebody’s been playing Jumanji58 / A Manor where man are like animals, an’ they'll yam on you like they yam on food / Cats with claws that’ll stab a yout’, act bad an’ catch a slap or two". His American colleague 50 Cent also refers to a jungle-like society: "So chances are, I’ma have to blast me a nigga / I’m on that kevlar vest shit, that wild wild west shit". If we look at the law as a way to survive, setting and enforcing norms that allow people to make a living and to be protected against crime, the absence of this type of protection prompts the need to survive in another way. The four principles reflect this: they come to the surface in the absence of laws that are State enforced and regarded as fair by the community. In this respect, hip-hop law shows an interesting parallel with societies in which there is no effective government control to be relied upon by the citizens. The norms prevailing in the American Wild West offer an example. This ‘Code of the West’ entailed that one could violate any State laws as long as one upheld the unwritten Code among cowmen. Violation led to the grave sanction of becoming an outcast and, as a consequence, a lesser chance to survive.
Seen from this perspective, each of the identified principles contributes to survival in a lawless community (or one that is experienced as such by its inhabitants). This needs little explanation for the principles of an eye for an eye and of self-justice, but also the high degree of respect due to fellow community members adds to one’s survival: it helps to create a closer community of people one can unconditionally trust. In a society without enforced State law, there is a need to replace the law with clear indicia of a person’s good will: not dissing anyone can be seen as such. The fourth principle is not consistent with a mainstream view of the law, but it can also be readily explained out of the need to survive in the urban jungle: the use of the law to one’s advantage is not based on some moral consideration, but simply on the fact that one profits from it.


'The End of the Work as We Know It' by Michael Madison in 19(1) Journal of Intellectual Property Law (2012) 1-31 -
takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.
Madison concludes -
The goal of this brief Article has been primarily descriptive. The idea of the work in copyright law has been incompletely understood and therefore ineffective because courts, scholars, litigants, and others have spent too much time trying to define the boundaries of the work and not enough time trying to understand the work as boundary. Over the course of the nineteenth century, copyright law evolved the idea of the work as a thing abstracted from material form. That development pressed courts and legislatures to understand the relationship between the work and its boundaries. Modern statutory text is formally unhelpful on that point. Courts have fared little better. The cases described above show that they have used the idea of the work as a boundary, but in inconsistent and sometimes ineffective ways. In this conclusion, I note a handful of possibly prescriptive implications. 
First, I start with Kelley itself and with the idea of gardens - and processes. Kelley’s dicta suggests that gardens cannot be copyrighted. But why not? Think of “garden” and “gardening” as metaphors as well as literal things and practices. Treat a creator as a gardener and a creation as a garden, or as something that has a dynamic existence for a time after its initial production, in the hands of the creator as well as in the hands of third-parties—readers, viewers, interpreters, and archivists. The contours of that follow-on life of the work, both static and dynamic in different parts, are clearly creative in their own right, or at least are of significant interest to the copyright system because of their critical roles in preserving knowledge and creativity for access and use by later generations. I have referred to these processes in their collective sense as “curation.” 
A gardener, too, is a kind of curator. In the contemporary sense, copyright interests in curation are only likely to grow, because no knowledge or creativity curates itself, and digital forms of knowledge require at least as much curation, and perhaps more, than forms that originated on more robust, tangible media. Moreover, when it comes to intersections between the natural and the made, the court in Kelley is clearly unaware of copyright history. Thepolitical movement of the eighteenth and nineteenth centuries that supported recognition of the independent author as a legal character and the intangible work as a legal thing were grounded in a specific conception of the work as an independent, autonomous, and natural product. I do not advocate a repeal of copyright’s prohibition on legal protection for processes or systems. There is no need to recognize a process copyright akin to a process or method patent— though the idea, and the abandonment of the idea of the work, tempts. But the idea of the work should not be used to police a firm boundary between creation and curation. That boundary is much more porous than the court in Kelley is prepared to acknowledge. 
Second, by implication I have critiqued the law’s shift from a more contextual approach to what authors create, linking content and particular forms, to a more abstract, universalized approach that foregrounds content alone. One remedy might be to work the law back toward context, either by recommending that courts interpret the idea of the work with greater sensitivity to the particulars of artistic practice in a given community or by making the definitional characteristics of the work in a particular case, its so-called metes and bounds, more robust. Or both. These strategies have their respective costs and benefits. They risk repeating the error that I identify above—exaggerating the fixity of the work as an abstract thing and under-appreciating the value of the changeable work. Instead, I suggest that further work in this area should pursue the meanings of boundaries themselves. It would be a mistake to invest the idea of boundaries, even as I have referred to them above, with an over- arching sense of rigidity or solidity. It is not only the boundary between the made and the natural that is or should be porous. All of the boundaries that I describe above, all the communicative, functional, and expressive uses to which the work is put in copyright practice, are and should be porous. Their porosity is the point. The work both can and should be flexible. 
Of particular interest here is the scholarship of Leigh Star, with different co-authors, identifying the concept of the boundary object:
This is an analytic concept of those scientific objects which both inhabit several intersecting social worlds (see the list of examples in the previous section) and satisfy the informational requirements of each of them. Boundary objects are objects which are both plastic enough to adapt to local needs and the constraints of the several parties employing them, yet robust enough to maintain a common identity across sites. They are weakly structured in common use, and become strongly structured in individual-site use. These objects may be abstract or concrete. They have different meanings in different social worlds but their structure is common enough to more than one world to make them recognizable, a means of translation. The creation and management of boundary objects is a key process in developing and maintaining coherence across intersecting social worlds. 
It is possible, likely even, that the idea of the work in copyright practice is a boundary object within the above definition: things that bridge communities weakly in abstract terms, that permit adjacent communities to collaborate or cooperate, and whose flexibility allows a degree of coordinated but independent action within each community. Courts’ treatment of the work in different factual and legal settings suggests strongly that the work has a weak abstract character that permits it to translate relationships between nearby communities or practices. I leave further investigation of the performance of works as boundary objects for later research. If that approach is fruitful, then the boundary object analysis may be applied to the patentable invention and to the mark or the sign in trademark law, and beyond that, to the idea of objects and subjects of the law more broadly. 
Third, and finally, if that proposed re-casting of the work bears fruit, then we may see, as my title proposes, the end of the work as we know it. That is, the end of the work as an independent, autonomous, static thing and its rebirth as a fluid, dynamic thing embedded in multiple communities and practices. 
Copyright in action is largely a question of institutional design and operation,  and understanding the work as a boundary object offers one potentially powerful tool for managing both relationships between institutions and relationships between institutions and individuals. Here is an example: I am in many ways a critic of interpretations of copyright law that foreground a romanticized version of the author, but I agree with criticism of the current statutory damages provision that bases damages on the number of works infringed. Courts that apply an “independent economic value” standard to the definition of a work in that context are trying to restore some sense to the logic of markets for copyrighted works—key institutions of copyright law—and not, as some might suggest, trying to protect the author’s perspective on distribution of their works. A preferred solution might be to delete the concept of the work from that part of the statute, and perhaps from others. But for practical reasons the work cannot be deleted entirely. That being the case, in this specific context and in copyright law more broadly, the idea of the work deserves a new beginning.

09 October 2012


Australia's proscription of terrorist organisations was updated by the Security Legislation Amendment (Terrorism) Act 2002 (Cth), which amended the Commonwealth Criminal Code and other statutes.

An organisation may be found to be a terrorist organisation under the Criminal Code through a finding by a court as part of the prosecution of a terrorist organisation offence or by being ‘listed’ by the Commonwealth Government under the Criminal Code Regulations. Courts can only consider whether an organisation is a terrorist organisation during a prosecution for a terrorist organisation offence. It is not the role of the courts to consider this as a stand-alone matter. In contrast the listing process enables identification of terrorist organisations as a separate matter to any offences.

That process provides "a mechanism for the Government to identify terrorist organisations and put the organisation and members of the public on notice that the organisation is a terrorist organisation under Australian law". The expectation is that such notification will assist people to "avoid engaging in activities such as becoming a member of or providing support or money to a terrorist organisation". That avoidance is important because Division 102 of the Criminal Code features an offence of directing the activities of, being a member of, recruiting for, providing training to, receiving training from, providing funds to, receiving funds from or providing support to a terrorist organisation. It is an offence to associate with a member of a listed terrorist organisation in certain circumstances where such association intentionally provides support to that organisation. Listing can also provide the basis for establishing the fact that an organisation is a terrorist organisation in a criminal proceeding.

'Proscription of Organisations in UK Counter-Terrorism Law' by Sofia Marques da Silva & Cian Murphy in Legal Aspects of EU Sanctions (Intersentia 2012) comments that
The UK has a history of proscribing organisations in the name of national security – with Irish Republican organisations the most well known example. The Terrorism Act 2000 provided new powers of proscription. Since the attacks on September 11 2001 the focus of proscription has been on organisations related to Islamist extremism. This paper will examine the legal framework for the proscription of organisations in the UK and how it has been used. It will consider the process by which proscription is imposed and the means by which it can be challenged. The most common use of proscription today is against organisations that, though dangerous, do not necessarily pose a threat to UK national security. The paper argues that proscription can enshrine in criminal law foreign policy choices of the UK government so as to criminalise support for causes whose illegitimacy is, at the very least, open to contest.
The authors conclude -
Although proscription is indeed a blunt tool it suits the toolbox of a militant democracy.Such a tool may have made sense when faced with paramilitary groups such as the IRA which, at times, represented a real and significant challenge to the state’s effective territorial control. In ‘Free Derry’, for example, neither the Royal Ulster Constabulary nor the British Army could exercise effective control between 1969 and 1972. The threat to British control of parts of Northern Ireland was very much a real one. It is merely unhelpful hyperbole to suggest that the same threat exists today. Indeed the form of organisation against which proscription is said to be useful – those ‘that have some sort of formal organisation, that have bank accounts, that have offices’ - do not fit the images of the post-September 11 public enemies of the either a disparate network of terrorists or a self-radicalising lone wolf. Today’s threats do not come in uniform and their bank accounts are targeted by financial surveillance and asset-freezes rather than mere criminalisation.
Proscription also fits with the post-September 11 paradigm – but it need not do so. The parody of law in contemporary proscription is to be found in the absence of effective review of listing decisions and the restricted system of review of delisting decisions. Even if these aspects were improved proscription would remain the subversion of law for political ends. The system is potent and can effectively incapacitate domestic organisations that ‘glorify’ terrorism and overseas revolutionaries. Of course, the conclusion that proscription is political is neither original nor controversial - all law that seeks to afford special powers to the state because of the political motivation of suspects necessarily involves the legal system in politics. 
In the recent case of Maryam Rajavi the High Court conducted judicial review of the Home Secretary’s decision to refuse entry to the UK to Maryam Rajavi, a dissident Iranian politician invited to address Parliament. The High Court concluded, reluctantly, that the Home Secretary’s decision was lawful. Stanley Burnton LJ declared in closing that the Home Secretary ‘is accountable for her decisions legally and politically ... she has shown that her decisions are lawful. Her political accountability, for the wisdom or otherwise of her decisions, is to Parliament’.90 It is this joint review, by Parliament and the courts, that is necessary to examine decision of the Government which involve not only law, but also politics-as-law. The delisting of the People’s Mujahedin Organisation of Iran may have been brought about by judicial review but there was also a concerted political campaign involved. If a system of proscription is to be retained it must be reformed to ensure that organisations do not need the heirs of Cicero to ensure they are heard.