30 March 2013

HK Directors

The New York Times reports that the Hong Kong government has deferred plans by the Financial Services and Treasury Bureau to block public access to residential address information and the identity card numbers or passport numbers of company directors.

Those plans have been criticised as potentially facilitating money laundering and eroding Hong Kong’s profile as a regional financial cenre. They also, of course, erode corporate transparency that is of interest to observers of increasing corruption by party officials and 'elite families' in other parts of China.

The NYT comments that
Hong Kong makes it extremely easy to set up companies, so many individuals create them, even simply to own their residences. Extensive data are available only from the Companies Registry, which has long been open to the public, including online, although fees are charged for documents.
Many wealthy mainland Chinese, including from prominent Communist Party families, own companies in Hong Kong and have provided personal information to the Companies Registry. Banks, law firms and accounting firms routinely check the registry and gather data on mainland Chinese citizens to verify identities and detect fraud in initial public offerings and other transactions.
The Financial Services and Treasury Bureau said it would proceed this year with a long-planned rewrite of the city’s Companies Ordinance, but the rewrite would not include the contested provision to limit public access.
“Given the complexity of the issues involved and very diverse views of different stakeholders, we believe that the community should be given more time to build consensus on the issue” of public access, the bureau said in a statement sent to the Foreign Correspondents’ Club of Hong Kong, which was one of the groups that had protested the proposed curbs on public access.
Bloomberg reports -
Trade unions have used the database to track down runaway employers who owed wages, and small businesses use the information to conduct background checks on trading partners.
“In the 14 years in which I was the Registrar of Companies, I never received any complaints about these provisions or suggestions that they infringed directors’ privacy,” Gordon Jones, Hong Kong’s registrar of companies from 1993 to 2007, said in an e-mail. “I would hope, however, that these misconceived and bad legislative proposals are not only deferred but also repealed.”
Hong Kong, a part of China with its own legal system, makes company filings available online. There were 3.5 million company searches done in 2012 in the database of more than 1 million directors. ...
Bloomberg News last year relied on Hong Kong and Chinese identity card numbers found in filings to chart the business ties and assets of the families of Chinese President Xi Jinping, ousted Politburo member Bo Xilai, and the descendants of veteran revolutionaries, known as the Eight Immortals, who ran China after the death of Mao Zedong in 1976.
Six companies controlled by Li Ka-shing, Hong Kong’s richest man, backed restricting access to the information and asked that details contained in old records also be expunged when the government held public consultations in 2009 and 2010.

Constitutional Recognition

The Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 (SA) amends the Constitution Act 1934 (SA) to formally recognise Indigenous peoples as part of the ongoing process of reconciliation.

That recognition is -
(1) The Parliament on behalf of the people of South Australia acknowledges that - 
(a) the Parliament of the United Kingdom in 1834 passed a Bill called An Act to empower His Majesty to erect South Australia into a British Province or Provinces and to provide for the Colonisation and Government thereof and that by Letters Patent dated 19 February 1836 His Majesty established the Province of South Australia; and
(b) the making of the above instruments and subsequent constitutional instruments providing for the governance of South Australia and for the making of laws for peace, order and good government occurred without proper and effective recognition, consultation or authorisation of Aboriginal peoples of South Australia.
(2) Following the Apology given on 28 May 1997, the Parliament, on behalf of the people of South Australia - 
(a) acknowledges and respects Aboriginal peoples as the State's first peoples and nations; and
(b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia and that -  (i) their spiritual, social, cultural and economic practices come from their traditional lands and waters; and (ii) they maintain their cultural and heritage beliefs, languages and laws which are of ongoing importance; and (iii) they have made and continue to make a unique and irreplaceable contribution to the State; and
(c) acknowledges that the Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters.
(3) The Parliament does not intend this section to have any legal force or effect.

Maritime Identity

The Maritime Powers Act 2013 (Cth), which gained assent last week,
  •  establishes a system of authorisations under which a maritime officer may exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on certain grounds;
  • provides for the enforcement powers available to maritime officers including boarding, obtaining information, searching, detaining, seizing and retaining things, and moving and detaining persons;
  • provides for processes for dealing with things seized, retained or detained and persons held; and 
  • creates offences for failure to comply.
The Ex Memo for the Bill last year indicated that the it
establishes a system of authorisations under which a maritime officer may exercise enforcement powers in the maritime domain. The comprehensive powers under the Bill will be available to enforce a diverse range of Australia's maritime laws, including in relation to illegal foreign fishing, customs, migration, quarantine and drug trafficking, as well as international agreements and arrangements at sea. The enforcement powers are framed in a manner specific to the maritime domain, an area which poses particular challenges to the effective enforcement of Australian laws. Enforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land-based operations and constrained by the practicalities involved in sea-based work. The unique aspects of the maritime environment merit a tailored approach to maritime powers, helping to ensure flexibility in their exercise and to assist maritime officers to deal with quickly changing circumstances and difficult and dangerous situations. The powers contained in the Bill are primarily based on powers currently available to operational agencies. The Bill does not alter operational roles, functions or responsibilities, nor reallocate existing resources, between agencies.
Part 1 of the Bill deals with preliminary matters, including commencement and definitions. It also provides a guide to the remainder of the Bill.
Part 2 of the Bill establishes a framework for the exercise of maritime powers. In particular, it provides for the `authorisation' of maritime powers. In most cases, an authorising officer is the most senior `maritime officer' available in a particular operational situation. A maritime officer is defined as a member of the Australian Defence Force, an officer of the Australian Customs and Border Protection Service, a member or special member of the Australian Federal Police, or other person appointed by the Minister for the purposes of enforcing particular domestic laws or international agreements.
This system of authorisations builds on existing operational practices, while providing a clear legislative framework for the authorisation of specific actions by maritime officers. An authorising officer can give an authorisation to a maritime officer to exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on a number of grounds. These include: where the authorising officer reasonably suspects that an Australian law has been contravened; to administer or ensure compliance with a monitoring law; or where the authorising officer reasonably suspects that an international agreement or decision applies.
An authorisation must be in force for the exercise of powers by a maritime officer to begin. The only exceptions are aircraft identification powers and the exercise of powers for the purposes of ensuring the safety of persons. Once an authorisation is in force, a maritime officer generally has access to the full range of powers set out in the Bill (described in Part 3). The maritime officer may exercise these powers as necessary for the purposes of the authorisation and for other purposes set out in the Bill. The exercise of maritime powers under an authorisation is subject to certain geographical limits. For example, maritime powers cannot be exercised in another country except in limited circumstances, such as with the agreement of that country. These provisions are consistent with limits under international and Australian law in relation to the exercise of maritime enforcement powers.
Part 3 of the Bill outlines the comprehensive set of maritime enforcement powers available to maritime officers. Enforcement powers are available with respect to: boarding vessels, installations and aircraft; interdiction; entering on land; obtaining information; searching things and people; examining and copying things; securing things, including weapons; seizing and taking possession of things; moving and detaining persons; detaining vessels, aircraft and other conveyances; arresting persons, and requiring persons to cease conduct that contravenes Australian law.
Part 4 establishes processes for dealing with things seized and retained, and detained vessels and aircraft, as a result of the exercise of maritime powers. The Bill imposes notification requirements and regulates the use and return of things.
Part 5 establishes processes for dealing with persons held in the exercise of maritime powers.
Part 6 of the Bill creates offences for failing to comply with particular requirements under the legislation.

NZ Media Regulation

The New Zealand Law Commission - counterpart of the ALRC - has today released a 394 page report [PDF] on The News Media Meets New Media: Rights, Responsibilities and Regulation in the Digital Age, building on the 2012 survey highlighted in a separate year's Public Perception of News Media Standards and Accountability in NZ report [PDF].

The report resembles those by Finkelstein and Leveson for Australia and the UK, highlighted in past posts in this blog. The Commission recommends establishment of a News Media Standards Authority (NMSA) to replace the New Zealand Press Council, the Broadcasting Standards Authority and the Online Media Standards Authority with a single independent standards body. The NMSA would serve as a one-stop shop for adjudicating complaints against all "news media" - broadcasters, newspapers, and online providers. Membership would be voluntary but would bring "significant benefits".

The Authority would be independent of both the state and the media industry in both its adjudication and governance structures, with no government or industry involvement in appointments. Membership of the NMSA would be voluntary. It would not be established by statute but would be indirectly recognised in statutory provisions that create news media privileges for publishers who chose to be accountable to the NMSA -
  • current legal exemptions and privileges regarding the Privacy Act 1993, provisions of the Electoral Act 1993 (NZ), the Human Rights Act 1993 (NZ), the Fair Trading Act 1986 (NZ) and other statutes, eg benefits relating to court reporting. (Available only to those publishers who belong to the standards body .)
  • Complaints resolution and mediation: the standards body would provide members with a quick and effective mechanism for dealing with privacy and defamation complaints that might otherwise end up in litigation;
  • Public funding: only publishers that join the NMSA would be eligible for public funding for the production of news and current affairs and other factual programming;
  • Reputational advantage: membership of the NMSA would provide a form of quality assurance and "brand advantage", with membership acting as the benchmark for determining other non-legal media privileges such as access to embargoed releases, access to the Parliamentary Press Gallery and admission to press conferences.
The Report addresses two questions:
  • Who should be eligible to access the news media’s legal privileges and exemptions in an era when anyone can break and disseminate news and opinion?
  • How should news media be held accountable for compliance with basic journalistic standards in the era of converged media?
The Commission identifies policy objectives as to -
  • recognise and protect the special status of the news media, ensuring all entities carrying out the legitimate functions of the fourth estate, regardless of their size or commercial status, are able to access the legal privileges and exemptions available to these publishers;
  • ensure that those entities accessing the news media’s special legal status are held accountable for exercising their power ethically and responsibly;
  • provide citizens with an effective and meaningful means of redress when those standards are breached;
  • signal to the public which publishers they can rely on as sources of news and information.
The Report concludes that -
we conclude that there is a strong public interest in adopting a broad-church definition of “news media” reflecting the need to nurture a diverse and robust fourth estate during a time of unprecedented commercial and technological disruption. This conclusion is based on an acknowledgment that the commercial model which has funded primary news gathering is under threat and that the institutional news media may not survive the paradigm shift brought about by the internet. At the same time the virtual elimination of barriers to publishing now makes it possible for any individual or organisation to undertake the core democratic functions assigned to the news media. This has the potential to strengthen democracy and increase the accountability of Parliament and the courts, and other powerful public and private institutions.
For this reason we conclude it is important to extend the news media’s special legal status to other publishers who are engaged in generating and disseminating news and commentary and in performing the other functions of the fourth estate – provided these entities are willing to be accountable to an independent standards body to ensure these privileges are exercised responsibly.
Second, from a consumer’s point of view we see no justification for retaining the current format-based news media complaints bodies which are largely based on outmoded distinctions between print and broadcast media. Within the next decade it is conceivable that there will be few if any printed daily newspapers. Over the same time period there is likely to be an exponential increase in the amount of audio-visual content accessed on-demand via mobile and other devices. In this converged environment consumers must be confident that consistent standards apply to similar types of content irrespective of the format or platform by which it is accessed.
It is significant in our view that many of New Zealand’s mainstream media, including Television New Zealand, Radio New Zealand and the Newspaper Publishers’ Association, accept that a single standards body for all news media is the logical consequence of convergence. As Fairfax Media stated in its submission to this review: “[n]ew technologies and convergence mean all major companies have multi-media operations and adjudicating complaints separately would be a nonsense”.
Independent research commissioned for this review also indicates that the New Zealand public sees merit in a single media complaints body: 52% of respondents to an online survey said they would “definitely support” the establishment of such a body and a further 36% said they were open to the idea.
The final question we address is whether this new converged standards body should have statutory jurisdiction over all New Zealand news media, as the Broadcasting Standards Authority currently has over broadcasters, or whether instead it should be a non-statutory body, like the Press Council, OMSA and the Advertising Standards Authority, whose members choose to be subject to their authority.
Our review has not found any evidence to challenge the mainstream media’s own assertion that New Zealand has an ethical and trustworthy news media. Although the Big Picture Research indicates some concern over the accuracy of the New Zealand media, it did not reveal a wholesale loss of confidence.
For this and for other reasons we discuss in chapter 7, we conclude that it is not in the public interest to impose statutory regulation on the New Zealand news media. Instead, in line with the principles outlined above, we believe accountability to an external standards body should be entirely voluntary.
However, as we outline in the following section, membership of our proposed new body will bring with it advantages which in our view will be of considerable value to those willing to be subject to its jurisdiction.


'Pretrial Detention and the Right to Be Monitored' by Samuel Wiseman in (2013) Yale Law Journal argues that
The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.
This paper develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring – the intrusion on individual privacy and the threat of surveillance extending to new segments of society – have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.
Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.


'Is Data Speech?' by Jane Bambauer in (2013) 66 Stanford Law Review argues that
Privacy laws rely on the unexamined assumption that the collection of data is not speech. That assumption is incorrect. Privacy scholars, recognizing an imminent clash between this long-held assumption and First Amendment protections of information, argue that data is different from the sort of speech the Constitution intended to protect. But they fail to articulate a meaningful distinction between data and other, more traditional forms of expression. Meanwhile, First Amendment scholars have not paid sufficient attention to new technologies that automatically capture data. These technologies reopen challenging questions about what “speech” is.
This Article makes two bold and overdue contributions to the First Amendment literature. First, it argues that when the scope of First Amendment coverage is ambiguous, courts should analyze the government’s motive for regulating. Second, it highlights and strengthens the strands of First Amendment theory that protect the right to create knowledge. Whenever the state regulates in order to interfere with knowledge, that regulation should draw First Amendment scrutiny.
In combination, these theories show clearly why data must receive First Amendment protection. When the collection or distribution of data troubles lawmakers, it does so because data has the potential to inform, and to inspire new opinions. Data privacy laws regulate minds, not technology. Thus, for all practical purposes, and in every context relevant to the privacy debates, data is speech.
Bambauer concludes -
When privacy scholars argue that data should be treated differently from traditional forms of communication (utterances, journals, movies and the like), they often do so for entirely rational and admirable reasons. If the First Amendment is too strong, and obstructs regulations that target lowvalue and negative-value speech, then the First Amendment will pose massive inefficiencies in our self-governance. Skepticism about the Supreme Court’s maximalist approach to First Amendment law is completely logical: the First Amendment is quite literally getting in the way of regulations that might improve social welfare.
The authors of the Bill of Rights could not have foreseen an avalanche of data when they drafted the First Amendment. But however they would have felt about Big Data, the restraints that they created were expected to frustrate the government, even when speech regulations are wellintentioned. The First Amendment is, in many ways, an experiment that hinders the government from deciding what speech, and what thoughts, are good, even if most level-headed people could agree on the matter. After all, a benevolent dictator is still a dictator.
But there is another, less pessimistic, explanation of the First Amendment’s restrictions. Our predictions about the negative effects of speech and information are frequently proven to be wildly off the mark. Every new innovation provokes a flurry of fear and draft legislation, leaving behind the remnants of technopanic. To take just one example, Caller ID, a service that is now taken for granted, was once the center of such heated privacy debate that the Federal Communications Commission requires telephone companies to block any phone number if the caller requests it. The regulation was promulgated over the vocal objections of the Electronic Privacy Information Center, which urged the FCC to set the default blocking the reporting of telephone numbers, and requiring callers to opt-in if they were willing to let their phone numbers be displayed.
This FCC rule looks much less critical in hindsight than it did in foresight. This is why the First Amendment should, and does, create a strong presumption in favor of access to information. Very often the most sensible-seeming restrictions on information turn out to be flawed by status quo bias and fear. These biases and fears are over-represented among public intellectuals today. Jeffrey Rosen has predicted that the Internet will be an existential threat to our identities and individuality, and Viktor Mayor-Schoenberger argues that increased information will decrease our ability to learn, and to forgive. These theories have so little support from history of the written word and the printing press, both information technological shocks of their times, that they are best forgiven and forgotten.
Oliver Wendell Holmes’ dissents, which over time have become seminal to modern First Amendment law, show a desire to craft speech rights that will not bend to accommodate a deceptively bad idea. According to David Rabban’s excellent historical account, Holmes may have been motivated to push for a robust speech rights because of his own, very personal realization that some of his strongly held beliefs were wrong.
In 1919, over the course of four opinions, Schenck, Sugarman, Frohwerk, and Debs, the Supreme Court upheld the convictions of socialists for antiwar speech under the Espionage Act. Ironically, Holmes and Brandeis were responsible for the majority opinions in all four of these cases, decisions that Holmes described as cruel, but correct. But after these prosecutions, as the dreary negotiations of the Treaty to Versailles were playing out, many Americans began to question whether World War I had achieved the goals that had justified American intervention in Europe. Holmes was among them.  During this time of reflection, the justifications for quashing anti-war speech began to look hollow, and the government’s increased use of the Espionage Act to prosecute socialists looked equally wrong-headed.
Before the year 1919 came to a close, Holmes wrote the first of his many famous dissents, for the case Abrams v. U.S. The other justices continued to write opinions, as they had when Holmes was among them, that accused the anti-war radicals of manipulating, even abusing, the First Amendment by invoking it “to justify the activities of anarchy or of the enemies of the United States.” Holmes, on the other hand, used his dissent to walk back some of the exceptions to free speech that he had himself created. Though he never admitted to having a change of heart about his earlier opinions, the stance he took in Abrams shows unequivocally that he had.
Holmes may not have come to the defense of the persecuted Bolshevik pamphleteers if he had continued to believe that their message was wrong. That is, Holmes’ metamorphosis was not entirely driven by sympathy for political minorities. Equally important was the fact that his previously-held assumptions about the Great War conflicted with the raw evidence he came to perceive as the war wrapped up. So when Holmes wrote “Persecution for the expression of opinions seems to me perfectly logical,” he was not conceding that an expansive First Amendment is illogical. Rather, the persecution of disfavored expressions only seems logical. Time and the flushing out of conflicting evidence may wind up proving otherwise. Information about the war led Holmes to have a special, powerful experience: the changing of the mind. The sanctity of a freely made mind requires protection not only for speech, but also for the digestion of raw facts.

25 March 2013


In AA v BB [2013] VSC 120  the Supreme Court of Victoria considers questions about privacy, the implied freedom of political communication, suppression orders and the interaction of state and Commonwealth law.

Bell J held that an intervention order made under the Family Violence Protection Act 2008 (Vic), which restricted the former spouse of a candidate for election to the Australian Parliament from providing information in relation to the candidate to a third party (eg the mass media), was not contrary to the implied constitutional freedom of political communication.

The Court found that the terms of the intervention order were reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government.

Bell J states that
184 It follows from general principles that, before determining whether non-publication orders should be made, there must be cogent evidence before the court reasonably justifying the conclusion that it is necessary to make such orders; the onus is on the applicant for the orders to demonstrate that they should be made.
185 Any orders of the court under ss 18 and 19 of the Supreme Court Act should be case-sensitive. Without intending to be exhaustive, the proceeding may be conducted in camera (closed to the public) in whole or in part, the names of some or all of the parties or witnesses may be suppressed or the use of pseudonyms may be ordered, publication of the evidence (including the oral and documentary evidence and the exhibits) and any transcript may be prohibited in whole or in part and the judgment may be published or suppressed wholly or in part, with or without the use of pseudonyms or other appropriate non-identifying (for example, gender neutral) terms. Any non-publication order must be justified by reference to the considerations specified in s 19 and that course which is most compatible, and involves least interference, with the open justice principle should be adopted.
186 Applying these principles to the present case, orders for partial but not complete suppression should be made.
187 I accept that it is necessary to avoid prejudicing the administration of justice for orders to be made prohibiting the publication of any account of the proceeding which identifies the appellant, the respondent, the protected person or the child and which contains any particulars likely to lead to the identification of those persons. That consideration does not require the suppression of a judgment in which the parties are identified by pseudonyms and which is expressed in anonymous and gender neutral terms, as is the case with this judgment. The pseudonyms will be ‘AA’ (the appellant) and ‘BB’ (the respondent).
188 It is necessary to adopt this course because this is an appeal from a proceeding under the Family Violence Protection Act in which the persons involved had statutory privacy protection. In my view, that protection which the persons involved had in the substantive proceeding under the Family Violence Protection Act should also be provided in this appeal proceeding under the Criminal Procedure Act. It would defeat the purpose of the statutory privacy protections which were applicable in the proceeding in the Magistrates’ Court if those protections were not to be applicable in the appeal proceeding in this court.
189 The rationale for the publication restrictions in the substantive proceeding in the Magistrates’ Court apply equally in an appeal proceeding in this court. People needing protection from family violence should not fear the loss of their privacy in an appeal. It would deter people from seeking that protection if privacy protection was not to be provided in a subsequent appeal proceeding. The same consideration applies to the other persons involved in a substantive proceeding in the Magistrates’ Court, such as respondents, witnesses and children. They should not be discouraged from participation in such proceedings by a fear of being identified in an appeal to this court.
190 The family privacy protections in the Family Law Act should also be taken into account. The evidence in this proceeding and the analysis in the judgment frequently refer to the proceeding between the appellant and the protected person in the Family Court in relation to their child. That protection which they had under the Family Law Act in the substantive proceeding in the Family Court should also be provided in the appeal proceeding in this court. Due to the relationship between the Magistrates’ Court and the Family Court in the discharge of their overlapping functions, it would not be unusual, as in the present case, for issues dealt with in a proceeding in the Family Court to later arise in a proceeding in the Magistrates’ Court and later again in an appeal proceeding in this court. A common approach to protecting privacy is necessary to avoid prejudicing the administration of justice.
191 This case falls into categories in which it is acknowledged that non-publication orders might be made. Unless orders were to be made, people – especially vulnerable women and children – would be deterred from seeking legal protection which they need and to which they are entitled. Others would be discouraged from becoming involved in proceedings. Unless orders were to be made, the subject matter of the proceeding would be destroyed. The subject matter of a family violence proceeding is the protection of the safety and wellbeing of the protected person, children and other family members. It would be destroyed or imperilled by loss of privacy in an appeal. Unless orders were to be made, the privacy protections in the Family Violence Protection Act and the Family Law Act would be undermined or lost. It would prejudice the administration of justice in all of these respects for orders not to be made.
192 This court has an independent discretion to exercise under ss 18 and 19 of the Supreme Court Act. When exercising this discretion, the court must consider whether making an order under s 18 would be justified (in this case) under s 19(b). In forming the view in this case that the exercise of the discretion is necessary in order to avoid prejudicing the administration of justice, I take into the account the privacy protections in the Family Violence Protection Act and the Family Law Act. I am not suggesting that consideration of these protections leads me automatically to conclude that orders should be made under the Supreme Court Act. In a particular case there may be reasons why orders should not be made. But nothing said in the submissions in the present case suggests that the privacy protections under the Family Violence Protection Act and the Family Law Act in the Magistrates’ Court and the Family Court respectively should not be equally provided in the appeal proceeding in this court.
193 I reject the application for complete suppression of the proceeding and the judgment because it goes beyond what is necessary for the avoidance of prejudice to the administration of justice. Adequate protection of the privacy of the appellant, the protected person and the child is provided by prohibiting the publication of their identities or of identifying particulars. Complete suppression would involve a high degree of departure from the open court principle in circumstances where this was not necessary to avoid prejudicing the administration of justice. An order for complete suppression would not be the most compatible, and would not involve the least interference, with the principle of open justice.
194 In the interests of protecting the identities of the protected person and the child, the identities of the appellant and the respondent should not be revealed and they should be known by pseudonyms. The appellant is not really seeking privacy protection, but on the principles I have discussed should have it. It would undermine the operation of the non-publication order with respect to the protected person and the child if the appellant or the respondent were to be identified or identifiable. Also in the interests of achieving adequate privacy protection for the protected person and the child, I have expressed the judgment in gender neutral terms. Place names, dates and other identifying particulars are not referred to in the judgment. The status of the protected person as an endorsed candidate for election to federal Parliament in the upcoming election is referred to as this is a material fact. But that fact, taken alone or with the other matters considered in the judgment, would not lead to the identification of the protected person, the respondent or the child.
195 The appellant was convicted and sentenced in the Magistrates’ Court of Victoria to imprisonment for 19 days for contravening an intervention order under the Family Violence Protection Act 2008 (Vic). The appellant pleaded guilty to the 15 charges concerned.
196 The intervention order prohibited the appellant from publishing material about the protected person (who is the appellant’s former spouse) or providing information to third parties about the protected person’s personal, family or professional interests. The order also prohibited the appellant form contacting, or communicating with, the protected person except through a lawyer to arrange mediation or discuss family law matters (including matters concerning their child). The appellant was charged with contravening the order by publishing information about the protected person and contacting that person directly.
197 In this appeal, the appellant contended that, despite the pleas of guilty to the charges, the magistrate committed errors of law and jurisdiction in convicting and sentencing the appellant. It was contended that the intervention order was invalid for being inconsistent with a parenting order made in respect of the appellant, the protected person and their child in the Family Court of Australia under the Family Law Act 1975 (Cth). It was alternatively contended that the provisions of the Family Violence Protection Act under which the intervention order was made were invalid under s 109 of the Constitution for being inconsistent with the provisions of the Family Law Act. It was also contended that the intervention order and those provisions were invalid by reason of the implied constitutional freedom of communication about government and political matters. I have rejected these contentions.
198 The intervention order under the Victorian Family Violence Protection Act which the appellant contravened is not invalid for being inconsistent with the parenting order under the federal Family Law Act. The State intervention order and the federal parenting order sit side by side and harmoniously deal, on the one hand, with the protection of the protected person from family violence of the appellant and, on the other hand, with the relationship between the appellant and the protected person in relation to their child. Further, the Family Violence Protection Act and the Family Law Act have been carefully designed to operate compatibly together according to a common plan. There is no inconsistency between the State and federal Acts and the provisions of the State Act are not invalid under s 109 of the Constitution.
199 Applying the tests stated by the High Court of Australia in cases to which I refer in the judgment, the intervention order and the provisions of the Family Violence Protection Act under which it was made are not invalid by reason of the implied constitutional freedom of communication about governmental and political matters.
200 Contrary to the submissions of the respondent, I have accepted that the intervention order limits the appellant’s capacity to communicate about government and political matters. The protected person is a candidate for election to the Australian Parliament in the upcoming federal election. Because the intervention orders prohibit the appellant from publishing any material about the protected person and from providing information about that person’s personal, family or professional interests to third persons, the order prevents the appellant from commenting on the suitability of the protected person for election to federal Parliament. Public discussion of the suitability of a candidate for election to federal Parliament is a central feature of the democratically representative political system which is enshrined in the Constitution.
201 However, the intervention order was made for the legitimate purpose of protecting the protected person from family violence of the appellant. In limiting the appellant’s capacity to publish material about the protected person and provide information about that person’s personal, family and professional interests to third parties, the order is reasonably appropriate and adapted, and proportionate, to the achievement of that purpose. In making the order, it was necessary for the magistrate to balance, on the one hand, the appellant’s right to free speech in the context of the upcoming federal election as protected by the implied constitutional freedom of communication about government or political matters and, on the other hand, the protected person’s right to be protected from family violence of the appellant, which the protected person did not lose by reason of being a parliamentary candidate in that election. The magistrate properly carried out that balancing judgement and the appellant has not shown that his Honour erred in law in doing so. I note that, in making the order, the magistrate did not inhibit the capacity of the appellant publically to discuss issues of policy or political matters not concerning the protected person or to provide information about such issues or matters to third parties.
202 I have also rejected the appellant’s contention that the intervention order was invalid for being inimical to public policy and for uncertainty.
203 In conclusion, the magistrate did not err in law or jurisdiction in convicting and sentencing the appellant for contravening the intervention order. The appellant’s appeal will be dismissed.
204 I have rejected the application of the respondent and the protected person, supported by the appellant, for complete suppression of the proceeding and this judgment as that would be contrary to the principle of open justice. However, it is appropriate to protect the identities of the appellant, the protected person and their child, as was the case under the Family Violence Protection Act in the substantive proceeding in the Magistrates’ Court and under the Family Law Act in the related proceeding in the Family Court. Therefore this judgment has been produced in gender neutral and anonymous terms and the appellant and the respondent have been given pseudonyms. Under s 18 of the Supreme Court Act 1986 (Vic), and consistently with s 166 of the Family Violence Protection Act and s 121 of the Family Law Act, I have made orders prohibiting the publication of any account of the proceeding, or any part of the proceeding, that identifies the appellant, the respondent, the protected person or the child or of any particulars likely to lead to the identification of those persons.

24 March 2013


Last year's Cambridge Declaration on Consciousness in Non-Human Animals [PDF] -
On this day of July 7, 2012, a prominent international group of cognitive neuroscientists, neuropharmacologists, neurophysiologists, neuroanatomists and computational neuroscientists gathered at The University of Cambridge to reassess the neurobiological substrates of conscious experience and related behaviors in human and non-human animals. While comparative research on this topic is naturally hampered by the inability of non-human animals, and often humans, to clearly and readily communicate about their internal states, the following observations can be stated unequivocally:
  • The field of Consciousness research is rapidly evolving. Abundant new techniques and strategies for human and non-human animal research have been developed. Consequently, more data is becoming readily available, and this calls for a periodic reevaluation of previously held preconceptions in this field. Studies of non-human animals have shown that homologous brain circuits correlated with conscious experience and perception can be selectively facilitated and disrupted to assess whether they are in fact necessary for those experiences. Moreover, in humans, new non-invasive techniques are readily available to survey the correlates of consciousness. 
  • The neural substrates of emotions do not appear to be confined to cortical structures. In fact, subcortical neural networks aroused during affective states in humans are also critically important for generating emotional behaviors in animals. Artificial arousal of the same brain regions generates corresponding behavior and feeling states in both humans and non-human animals. Wherever in the brain one evokes instinctual emotional behaviors in non-human animals, many of the ensuing behaviors are consistent with experienced feeling states, including those internal states that are rewarding and punishing. Deep brain stimulation of these systems in humans can also generate similar affective states. Systems associated with affect are concentrated in subcortical regions where neural homologies abound. Young human and nonhuman animals without neocortices retain these brain-mind functions. Furthermore, neural circuits supporting behavioral/electrophysiological states of attentiveness, sleep and decision making appear to have arisen in evolution as early as the invertebrate radiation, being evident in insects and cephalopod mollusks (e.g., octopus). 
  • Birds appear to offer, in their behavior, neurophysiology, and neuroanatomy a striking case of parallel evolution of consciousness. Evidence of near human-like levels of consciousness has been most dramatically observed in African grey parrots. Mammalian and avian emotional networks and cognitive microcircuitries appear to be far more homologous than previously thought. Moreover, certain species of birds have been found to exhibit neural sleep patterns similar to those of mammals, including REM sleep and, as was demonstrated in zebra finches, neurophysiological patterns, previously thought to require a mammalian neocortex. Magpies in particular have been shown to exhibit striking similarities to humans, great apes, dolphins, and elephants in studies of mirror self-recognition. 
  • In humans, the effect of certain hallucinogens appears to be associated with a disruption in cortical feedforward and feedback processing. Pharmacological interventions in non-human animals with compounds known to affect conscious behavior in humans can lead to similar perturbations in behavior in non-human animals. In humans, there is evidence to suggest that awareness is correlated with cortical activity, which does not exclude possible contributions by subcortical or early cortical processing, as in visual awareness. Evidence that human and nonhuman animal emotional feelings arise from homologous subcortical brain networks provide compelling evidence for evolutionarily shared primal affective qualia.
 We declare the following:
“The absence of a neocortex does not appear to preclude an organism from experiencing affective states. Convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. Nonhuman animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.”