18 May 2013

Glass, Darkly

Members of the US Congress Privacy Caucus have addressed a 'please explain' letter to Google [PDF] regarding Google Glass, with a formal reply expected no later than 14 June.

Criminal Intelligence Sharing

The Australian Parliamentary Joint Committee on Law Enforcement has released the 122 page report of its Inquiry into the gathering and use of criminal intelligence.

The report states that -
As serious and organised crime in Australia exploits the legislative, structural and resource gaps in law enforcement, it demands a nationally consistent approach. It also requires strategic investigative methodologies focused on intelligence-led investigations as well as identifying sector vulnerabilities open to exploitation in order to prevent and disrupt serious and organised crime rather than relying on reactive policing.
As the national criminal intelligence body, the central function of the Australian Crime Commission (ACC) is to collect, analysis and disseminate criminal intelligence in relation to nationally significant organised crime. Its modus operandi is to work in partnership with law enforcement, national security agencies, government and industry to deliver advanced criminal intelligence. Recent amendments to the Australian Crime Commission Act 2002 have allowed for greater dissemination of ACC information to partner agencies, government and the private sector.
No warnings from the Committee about the problematics of sharing with the private sector.

The report goes on  to comment that -
However, evidence to the committee suggests that the intention behind these new arrangements, which is to provide for a more comprehensive response to organised crime, cannot be fully realised until existing limitations, challenges and hurdles within the current criminal intelligence framework are addressed.
This inquiry has brought to light serious legislative, technological, resource and cultural impediments to the flow of intelligence which produce unequal intelligence holdings, an incomplete picture of criminal threats and undermine stakeholder confidence. Some law enforcement agencies hold reservations about sharing their own information and seem not to recognise the value added to that information when converted into intelligence and returned to them. Such concerns are exacerbated by the absence of a common approach to collecting, collating, analysing and disseminating criminal intelligence underpinning a common ethos. Efforts to establish an interoperable criminal intelligence system capable of producing a comprehensive national picture of organised crime are hindered for these reasons.
The report goes on to state that the Australian Criminal Intelligence Model (ACIM) views "criminal intelligence as a national asset which can be collected once and used often", seeking "to establish an interoperable system for the free flow of criminal intelligence based on consistent standards, processes and protocols".
The ACIM brings together for the first time the siloed domains of serious and organised crime, national security, and policing and community safety. By bringing all agencies involved in each of the respective domains under the one model and enabling them to draw on intelligence across all three domains, the initiative seeks to provide for a safer Australia. The efficacy of a centralised multi-sector criminal intelligence system was most recently highlighted in relation to the ongoing investigation into the Boston explosions of 16 April 2013. Investigations into criminal acts of this nature extend beyond any single domain or agency as they encompass matters of national security and counter-terrorism, organised crime as well as policing and community safety. As contemporary crimes can traverse the three domains, contemporary law enforcement must also be able to traverse available intelligence across the respective domains.
The ACIM envisages an intelligence partnership whereby law enforcement agencies collect and contribute intelligence to the national holdings. This partnership is complemented by various national strategic frameworks and plans including the Commonwealth Organised Crime Strategic Framework which underscore the importance of an intelligence-led multi-agency response to organised crime. In this report, the committee considers some of the key challenges to establishing the ACIM. It examines the current criminal intelligence context and stakeholders. It explores the vision and principles that underpin the ACIM and highlights some of the key considerations before the ACC in establishing an interoperable system that all Commonwealth, state and territory law enforcement agencies contribute to and benefit from. Conceptualising intelligence as a national asset raised questions regarding controls on information sharing and access, including overall responsibility for and ownership of the intelligence. In this report, the committee makes a number of recommendations to ensure that all agencies are accountable for information and intelligence contributed to the national holding while ensuring that there are strong accountability and oversight arrangements as well as standards in relation to intelligence gathering and sharing.
The Committee's recommendations are as follows -
R 1 The committee recommends that the Australian Crime Commission and the Australian Federal Police provide it with a detailed report on the findings and recommendations of the Australian Criminal Intelligence Database (ACID) and Australian Law Enforcement Intelligence Network (ALEIN) scoping study, National Information and Intelligence Needs Analysis, and assessment of the AFP's Project Spectrum. The report should provide details on:
• the recommendations regarding ACID and ALEIN and how they will be implemented including a timeframe;
• the outcome of the National Information and Intelligence Needs Analysis;
• the assessment of the AFP's Spectrum Program; and
• how the recommendations of each respective review and assessment will inform the development of the Australian Criminal Intelligence Model and maximise interoperability between existing databases and systems.
R 2   ... that the Australian Crime Commission (ACC) as the lead agency on criminal intelligence and the ACIM provide it with a report on how the ACC will ensure that all current information technology systems are fully utilised and accessible under the ACIM.
R 3 ... that the Australian Criminal Intelligence Forum (ACIF) develop for the endorsement of all 17 ACIM agencies an information management strategy. As a first step in developing the strategy, the ACIF should define key terms including a clear, working definition of criminal intelligence and provide descriptions of relevant concepts and processes.
R 4 ... that the Attorney-General's Department conduct a review of disclosure of information procedures under Freedom of Information (FOI). The review should provide recommendations on any legislative, administrative or policy reforms required to achieve a consistent approach to FOI requests for information under the ACIM.
R 5 ... that the Attorney-General's Department review law enforcement data security management practices, standards, principles and safeguards. The review should provide recommendations on:
• standards and uniform principles for the security and integrity of information contributed to the ACIM. These standards should detail how ACIM agencies are to hold, protect, secure and manage ACIM intelligence; and
• an accountability and oversight mechanism to monitor compliance with the uniform standards and principles.
R 6  ... the establishment of a national repository for criminal intelligence as part of the Australian Criminal Intelligence Model.
R 7 ... that a cost-benefit analysis be undertaken in relation to the options for a national repository. This analysis should take into consideration:
• the determining factors detailed in Chapter 6 of this report;
• the need to complement existing information technology initiatives such as the AFP's Spectrum Program;
• the need for interoperability and complementarity with current databases including the National Criminal Investigation DNA Database and the National Automated Fingerprint Identification System; and
• the intelligence sharing model used by the Australian intelligence community.
R 8  ... the standardisation of security clearance processes. To this end, the committee strongly encourages all state and territory jurisdictions to align their security clearance processes with that of the Australian Government Security Vetting Agency.
R 9 ... that the Australian Crime Commission in collaboration with the Attorney-General's Department establish as part of a licencing requirement to the national repository or other administrative arrangement, a formal agreement which requires signatory agencies to declare a commitment to contribute information and intelligence to the national holdings.
R 10  ... the establishment of an accountability and oversight regime to ensure that agencies are accountable for their contribution to the national holdings. As part of this regime, the Senior Officers' Group on Organised Crime (SOG on OC) should provide an annual oversight report to the Ministerial Council for Police and Emergency Management—Police and Standing Committee of Attorneys-General on the contribution of each respective agency for review and remedial action where required.
R 11  ... that the feasibility of extending the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) to include oversight of the Australian Securities & Investments Commission, the Attorney-General's Department and the Australian Taxation Office be referred to the Parliamentary Joint Committee on ACLEI for inquiry and report.
R 12   ... that the ACC provide a detailed account of progress towards the ACIM in its annual reports.

17 May 2013


In National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 the Federal Court has warned academic employers against using sham redundancies to get "rid of an undesired employee".

Justice Gray found that RMIT took unlawful adverse action when it dismissed Professor Judith Bessant who fell out with her head of school - an increasingly common experience. The Court rejected RMIT's argument that the Youth Studies & Sociology professor was made her redundant for financial reasons. The Court fined RMIT $37,000 and ordered it to reinstate Bessant. Gray J did not order damages, saying the judgment would vindicate her.

In finding RMIT breached  Fair Work Act 2009 (Cth) s340(1)(a)(ii)  the Court held that the university had failed to prove that the reasons for Bessant's dismissal did not include those alleged by the NTEU - that she had exercised, or planned to exercise, workplace rights, including by making bullying and intimidation complaints against her new head of school to various people within RMIT and to WorkSafe Victoria.

RMIT maintained that Vice-Chancellor Professor Margaret Gardner made the redundancy decision. She told the court that she was motivated primarily by financial considerations, as the "charismatic" Bessant's area was running at a loss. The Court noted that the Vice-Chancellor indicated that she had "reasons other than those to which she referred explicitly" and that she failed to give explicit evidence that none of the reasons the NTEU alleged were behind the sacking "was operative in her decision". There was an absence of "any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Bessant as the one who should be made redundant". "This includes the absence of the expression, or the application, of any criteria by reference to which the making of that choice occurred."

The Court also took into consideration Professor Gardner's "unconvincing insistence" that although Bessant's connections with the Youth Work discipline had been severed, her salary was "irrevocably attached" to its budget. Justice Gray was influenced by the Vice-Chancellor's determination to "ignore her knowledge" of animosity by Professor Hayward (the new head of school) towards Bessant
which was based on Professor Hayward’s views as to Professor Bessant’s conduct, which included the making of various complaints against him, and to attempt to confine herself to the financial case. It is based in part on Professor Gardner’s apparent determination to retain control of the process and to minimise the impact of the defects in that process to which the report of the Redundancy Review Committee drew attention, so that she could ensure that her own decision prevailed.
RMIT was held to have seriously breached its enterprise agreement with the NTEU, which required the university to offer employees whose position had an "uncertain future" the option of participating in a voluntary redeployment process.

In setting penalties, Justice Gray noted that RMIT, particularly the Vice-Chancellor, had displayed no contrition. He commented that
Unless the effect of a penalty is felt, RMIT might again succumb to the temptation to make use of its redundancy processes to rid itself of an employee when it desires to do so for reasons that would be prohibited by the Fair Work Act.
employers must understand that making use of redundancy as a pretext for getting rid of an undesired employee is not an option, if the reasons for wishing to get rid of that employee would be proscribed by the Fair Work Act. Both RMIT and employers generally must understand that obligations entered into pursuant to enterprise bargaining agreements that involve making efforts to avoid redundancies, by the use of such devices as voluntary redeployment programs, are real and substantive obligations, and must be met whenever the occasion for making an employee redundant has become a real prospect.
Importantly Justice Gray said his choice was between putting the academic "back into a situation in which, if she should have dealings with Professor Hayward, those dealings are likely to be unworkable", and forcing the university to "pay out a very large such of money" (estimated at $1.9 million), or "significantly in excess of $1m" even discounting for contingencies. "In the circumstances, it seems to me that the first of these courses is the preferable one."

Ordering Bessant's reinstatement to the position she held immediately before her dismissal took effect (which was a three-year non-teaching position, negotiated in a dispute settlement process after she lodged her complaints) would return her to a research position in a separate building to the head of school, and where should would be "insulated" from directly reporting to him. She would be "able to engage in productive research, which would benefit both her and RMIT".

Justice Gray said that at the end of the three-year non-teaching period, it would not be "outside the range of reasonable management skills to expect that a viable way will be found to ensure that Professor Bessant is able to return to teaching duties, whilst avoiding contact with Professor Hayward so far as possible, to ensure that the School continues to run smoothly".

Justice Gray noted that Bessant was paid a "substantial sum" on her redundancy. Because he was ordering reinstatement with recognition of continuity of employment, he did not propose to order that RMIT pay any further compensation for reputational damage. "By the judgment, she will be vindicated. She will suffer no economic harm arising from any damage to reputation."

RMIT is reportedly considering an appeal and - unsurprisingly - commented "The university takes very seriously its obligations under the Fair Work Act and the university's enterprise agreement".


'Performance Anxiety: Copyright Embodied and Disembodied' by Rebecca Tushnet in Journal of the Copyright Society of the U.S.A (Forthcoming) comments
The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.
One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.

Blasphemy in Canada

Noting The Curious Persistence of Blasphemy: Canada and Beyond, the 268 pp PhD dissertation [PDF] by Jeremy Patrick
The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined: (1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy? 
Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today. 
Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form. 
Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?

Self Disclosure

'An Ethical Duty to Protect One's Own Information Privacy?' by Anita Allen in (2013) 65 Alabama Law Review argues that
People freely disclose vast quantities of personal and personally identifiable information. The central question of this Meador Lecture in Morality is whether they have a moral (or ethical) obligation (or duty) to withhold information about themselves or otherwise to protect information about themselves from disclosure. Moreover, could protecting one’s own information privacy be called for by important moral virtues, as well as obligations or duties? Safeguarding others’ privacy is widely understood to be a responsibility of government, business, and individuals. The “virtue” of fairness and the “duty” or “obligation” of respect for persons arguably ground other-regarding responsibilities of confidentiality and data security. But is anyone ethically required — not just prudentially advised — to protect his or her own privacy? If so, how might a requirement to protect one’s own privacy and to display ethical virtues of reserve, modesty and temperance properly influence everyday choices, public policy, or the law? I test the idea of an ethical mandate to protect one’s own privacy, while identifying the practical and philosophical problems that bear adversely on the case. I consider “conceptual” and “libertarian” objections to the view that each individual indeed has a moral obligation to safeguard his or her own privacy. Government and industry are not off the hook if privacy is a duty of self-care and self-respect: they have responsibilities and are freshly viewed as partners in moral agents’ quest for ethical goodness.
Allen comments that
As we can see from the foregoing discussion, there are several negative positions one might take respecting whether information privacy protection is a duty to oneself, including these:
(1) No moral duty to or regarding oneself. There are no moral duties to oneself or regarding oneself, and therefore, no duty to protect one’s own privacy. We may (or may not) have reasons of prudence and self-interest to protect our own privacy.
(2) No moral privacy protection duty. There are moral duties to oneself, but they do not include a duty to protect one’s own informational privacy. We may (or may not) have reasons of prudence and self-interest to protect our own privacy.
(3) No first-order moral duty to or regarding oneself. There are no first-order moral duties to oneself, and therefore no such duty to protect one’s own privacy, but there are first-order duties to others that may entail derivative second-order duties to protect one’s own privacy.
(4) Prudence Only. We may have reasons of prudence and selfinterest to protect our own privacy, and commonly do. There are no moral duties to oneself, and therefore no duty to protect one’s own privacy. Nor is there any primary duty to others that entails a derivative duty to protect one’s own privacy.
(5) No Reason to Protect. There are no general reasons of prudence and self-interest to protect one’s own privacy. There are no moral duties to oneself, and therefore no duty to protect one’s own privacy. Nor is there any primary duty to others that entails a derivative duty to protect one’s own privacy.
I reject 1–5 above and subscribe to duties to oneself as an obligation to act in ways that protect one’s welfare and promote self-respect. Moreover, I believe that among our duties to ourselves are duties of privacy protection. ...
We should make a habit and virtue of protecting our own privacy. Duties to protect one’s own privacy can be articulated in admixtures of deontological, utilitarian, and aretaic frameworks, to name the most routinely discussed. The duty to protect one’s own privacy is akin to a duty to promote the happiness, autonomy, and character of one’s current and future self. (I note that Kant himself did not maintain that individuals have a duty to promote their own happiness, as I would.) A modern deontological morality might understand privacies of modesty and reserve as modes of self-esteem, self-respect, or spirituality. An aretaic or perfectionist morality might treat a degree of modesty and reserve as favorable character traits conducive to the best life. Imagine a man with colon cancer who tells his coworkers in a limited distribution e-mail that he has colon cancer and is about to take some time off from work to begin treatment. Such a sensitive disclosure is not one that I would characterize as unethical. But now imagine that this same man e-mails, unsolicited, to his same coworkers a detailed electronic diary about his cancer that includes photographs of his surgical wounds, MRIs, and X rays, along with emotional accounts of his feeling before, during, and after months of chemotherapy, radiation, and recovery. Now we have “oversharing” that raises ethical concerns. Why? Because of the discomfort he causes others, but also, critically, for the damage to his own reputation, his loss of dignity, and his departure from good judgment and temperate character.

15 May 2013

National Security Legislation Review

The declassified 191 page Annual Report [PDF] to December 2012 of Australia's Independent National Security Legislation Monitor
reviews the appropriateness and effectiveness of Australia's national security legislation, focusing on the legal definition of terrorism and on controversial powers such as control orders, preventative detention and coercive questioning. 
 Key findings are -
  • control orders [CO] in their present form are not effective, not appropriate and not necessary. It suggests that they may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown. Chapter II
  •  the preventative detention orders are not effective, not appropriate and not necessary. They should simply be abolished. Chapter III
  • questioning warrants [QW] are sufficiently effective to be appropriate, and in a relevant sense necessary. They might be more readily available than the legislation currently provides. The Monitor rejects the criticism that questioning warrants are an unjustified infringement of liberty. Chapter IV
  • questioning and detention warrants are an unnecessary extension of questioning warrants. But the reasoning for that conclusion does not suggest detention for the purposes of questioning is wrong. Rather, it is appropriately and proportionately comprehended within the counter-terrorism laws provisions for questioning warrants. Chapter V
  • Chapter VI proposes improvements to Australia’s definition of terrorism. The current requirement for the separate proof of a political, religious or ideological motivation in order that a person be guilty of a terrorist offence is not effective, not appropriate and not necessary. Indeed, it may be counter-productive.
Specific recommendations are
R II/1: If COs are to be retained in general, the onus of showing that grounds exist and, if challenged, that they existed when a CO was first made, should clearly be imposed on the authorities applying for confirmation of an interim CO. 
R II/2: If COs are to be retained in general, the prerequisites for making an interim CO, including on an urgent basis, should include satisfaction that proceeding ex parte is reasonably necessary in order to avoid an unacceptable risk of a terrorist offence being committed were the respondent to be notified before a CO is granted.
R II/3: If COs are to be retained in general, the provisions governing confirmation hearings should expressly impose, perhaps by a presumption, the onus on the AFP to show the CO should continue in force.
R II/4: The provisions of Div 104 of Part 5.3 of the Code should be repealed. Consideration should be given to replacing them with Fardon type provisions authorizing COs against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness.  
III/1: If PDOs are to be retained in general, the threshold tests for them should require both the AFP applicant and issuing authority to hold an actual belief as to the prerequisite matters as well as the grounds for that belief being reasonable. 
R III/2: If PDOs are to be retained in general, the imminence test should be replaced with a requirement that the AFP applicant and issuing authority   are each satisfied that there is a sufficient possibility of the terrorist act occurring sufficiently soon so as to justify the restraints imposed by the PDO.
R III/3: If PDOs are to be retained in general, the necessity requirement in para 105.4(6)(b) should be amended to require that it be “reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act”.
R III/4: The provisions of Div 105 of Part 5.3 of the Code should be repealed.  
R IV/1: The issuing authority as well as the Attorney-General should be required to consider all the prerequisites for the issue of QWs, rather than the issuing authority taking the consent of the Attorney-General as conclusive of some of them.
R IV/2: The QW provisions should be amended to include a requirement that the prescribed authority must be satisfied on reasonable grounds that any extension of time granted on account of the use of an interpreter is no more than could reasonably be attributable to the use of the interpreter during questioning given the circumstances of the individual case.
R IV/3: The requirement in subpara 34V(3)(b)(ii) of the ASIO Act that there be no alternative way of taking a person into custody should be removed.
R IV/4: The length of imprisonment for offences of deliberate contravention of safeguards in relation to QWs should be amended to be at parity with the length of imprisonment for offences against secrecy obligations in relation to QWs.
R IV/5: The length of imprisonment for offences against secrecy obligations in relation to QWs should be reduced to 2 years.
R IV/6: The offence of failing to produce a record or thing should be amended to include the wilful destruction of a record or thing as well as tampering with a record or thing with the intent to prevent it from being produced, or from being produced in a legible form.
R IV/7: The QW provisions should be amended to make clear that a person who has been charged with a criminal offence cannot be subject to questioning until the end of their criminal trial.
R IV/8: ASIO should provide additional guidance and information to those officers involved in the preparation of QW reports to ensure the reports include a full assessment of the overall intelligence value of the information obtained through the use of QWs.
R V/1: The provisions of Subdiv C in Div 3 of Part III of the ASIO Act should be repealed.
R V/2: The QW provisions should be amended to permit arrest if the police officer serving the warrant believes on reasonable grounds from anything said or done by the person served that there is a serious possibility that he or she intends not to comply with the warrant, and also to permit the prescribed authority to direct detention after service of a QW but before the time specified in it for attendance if it appears on reasonable grounds that there is an unacceptable risk of the person tipping off another involved in terrorism, failing to attend or destroying or tampering with evidence.
R VI/1: Motivation should be removed as an element of the defined term “terrorist act” in the Code.
R VI/2: Hostage taking should be expressly included in Australia’s definition of “terrorist act” in the Code.
R VI.3: Acts committed during an armed conflict governed by international law should be excluded from the definition of “terrorist act” in the Code.
The 218 page final report of the Council of Australian Governments (COAG) review of Counter-Terrorism Legislation meanwhile recommends
R 1: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘threat of action’
The Committee recommends that ‘threat of action’ be removed from the definition and a separate offence of ‘threatening to commit a terrorist act’ be created.
R 2: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘hoax threat’
The Committee recommends that an additional offence be inserted into Part 5.3 of the Criminal Code to provide for a ‘hoax threat’ to commit an act of terrorism.
R 3: Criminal Code – Section 100.1 – Definition of a terrorist act – meaning of ‘harm’
The Committee recommends that ‘harm’ in subsection 100.1(2) be amended to allow the harm contemplated by the Act to extend to psychological harm, together with any consequential amendment, for example, to subsection 100.1(3)(b)(i).
R 4: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘hostage taking’
The Committee recommends that ‘hostage-taking’ be included in subsection 100.1(2).
R 5: Criminal Code – Section 100.1 – Definition of a terrorist act – United Nations and its agencies
The Committee recommends that subsection 100.1(1)(c)(i) extend to include reference to the United Nations, a body of the United Nations, or a specialised agency of the United Nations.
R 6: Criminal Code – Section 100.1 – Definition of a terrorist act – Interaction with the law of armed conflict
The Committee recommends that consideration be given to incorporating in the legislation an amendment to the effect that Part 5.3 of the Criminal Code will not apply to acts committed by parties regulated by the law of armed conflict.
R 7: Criminal Code – Section 100.1 – Definition of a terrorist act – Exemption for Australian forces
The Committee recommends that consideration be given to excluding from the definition an act done by a person in the course of, and as part of, his or her service in any capacity with the Australian armed forces.
R 8: Criminal Code – Section 101.2 – Providing or receiving training connected with terrorist acts
The Committee does not recommend any change to this section.
R 9: Criminal Code – Section 101.4 – Possessing things connected with terrorist acts
The Committee recommends that section 101.4 be amended to make it clear that ‘a thing’, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
R 10: Criminal Code – Section 101.5 – Collecting or making documents
The Committee recommends that section 101.5 be amended to make it clear that ‘a document’, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.
R 11: Criminal Code – Section 101.6 – Doing an act in preparation for, or planning, a terrorist act
The Committee does not recommend any change to this section.
R 12: Criminal Code – Section 102.1 – Proscription of terrorist organisations
The Committee does not recommend that the present method of proscription of a terrorist organisation be changed.
R 13: Criminal Code – Subsection 102.1(1A) – Definition of ‘advocates’
The Committee recommends that subsection 102.1(1A) be amended to omit (c). This subsection deals with a situation where an organisation directly praises the doing of a terrorist act.
R 14: Criminal Code – Section 102.1A – Commencement of listing a terrorist organisation
The Committee recommends that the Government give consideration to postponing commencement of a listing until after the Parliamentary disallowance period has expired.
R 15: Criminal Code – Communication of proscription decisions
The Committee recommends that the Attorney-General’s Department should consider whether it is able to enhance its communication methods to ensure that communities are more effectively notified when an organisation has been proscribed. Such methods should be effectively responsive and personal to the specific information needs of ethnic and religious communities.
R 16: Criminal Code – Section 102.5 – Training unconnected with terrorist activities
The Committee recommends that section 102.5 be amended to include specific exemptions for providing training to or receiving training from a terrorist organisation for purposes unconnected with the commission of a terrorist act.
R 17: Criminal Code – Section 102.5 – ‘Participation’ in training
The Committee recommends the offence in section 102.5 be amended to include ‘participation’ in training.
R 18: Criminal Code – Section 102.5 – Strict liability in respect of proscribed terrorist organisations
The Committee recommends the repeal of subsections 102.5(2) – (4).
R 19: Criminal Code – Subsection 102.6(3) – Reduction of the burden on the defendant
The Committee recommends that the legal burden in the note in subsection 102.6(3) be reduced to an evidential one.
R 20: Criminal Code – Subsection 102.6(3) – Exception for lawyers’ receipt of funds from a terrorist organisation
(i) The Committee recommends subsection 102.6(3)(a) be amended to exempt the receipt of funds from a terrorist organisation for the purpose of legal advice or legal representation in connection with criminal proceedings or proceedings relating to criminal proceedings (including possible criminal proceedings in the future) and in connection with civil proceedings of the following kind: (ii) Proceedings relating to whether the organisation in question is a terrorist organisation, including the proscription of an organisation, a review of any proscription, or the de-listing of an organisation; or (iii) A decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth), or proceedings relating to such a decision or proposed decision; or (iv) A listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 (Cth) or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or (v) Proceedings conducted by a military commission of the United States of America or any proceedings relating to or arising from such a proceeding; or (vi) Proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).
R 21: Criminal Code – Section 102.6 – Penalty for knowingly funding a terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(1) be reduced to 15 years.
R 22: Criminal Code – Section 102.6 – Penalty for recklessly funding a terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(2) be reduced to 10 years.
R 23: Criminal Code – Section 102.8 – Associating with terrorist organisations
The Committee, by majority, recommends the repeal of this section.
R 24: Criminal Code – Section 103.1– Financing terrorism
The Committee recommends that this section be repealed and replaced by a graded continuum of offences, capturing both higher and lower culpability situations. The gradation should be: (i) Providing or collecting funds with the intention or knowledge that they be used to facilitate or to allow engagement in a terrorist act. The Committee recommends this offence attract a maximum penalty of life imprisonment. (ii) Providing or collecting funds reckless to their use in facilitating or allowing engagement in a terrorist act. ‘Recklessness’ for this purpose is defined in section 5.4 of the Criminal Code. The Committee recommends this offence attract a maximum penalty of 25 years.
R 25: Criminal Code – Section 103.2 – Financing a terrorist
The Committee recommends that consideration be given to the repeal of this section.
R 26: Criminal Code – Retention of control orders
The Committee considers that the control order regime should be retained with additional safeguards and protections included.
R 27: Criminal Code – Control orders – Basis for seeking Attorney-General’s consent
The Committee recommends the amendment of subsection 104.2(2) (b) to require that the second basis on which a senior member of the Australian Federal Police seeks the Attorney-General’s written consent to request an interim control order be that he or she “considers on reasonable grounds that the person has provided training, or received training from, a listed terrorist organisation”.
R 28: Criminal Code – Control orders – Definition of ‘issuing court’
The Committee recommends that the definition of ‘issuing court’ in section 100.1 be amended to read ‘the Federal Court of Australia’.
R 29: Criminal Code – Control orders as a last resort – Cooperation and information sharing between the Australian Federal Police and the Commonwealth Director of Public Prosecutions
The Committee recommends that investigating agencies, prior to the Australian Federal Police requesting consent from the Attorney-General to seek an interim control order, should provide the Commonwealth Director of Public Prosecutions with the material in their possession so that the Director may, in light of the Prosecution Policy of the Commonwealth, consider or reconsider the question of prosecution in the criminal courts. This recommendation does not necessarily require that it be incorporated in the legislation at this stage. It does, however, emphasise that criminal prosecution is the preferable approach. Control orders should always be sought as a last resort.
R 30: Criminal Code – Control orders – Special Advocates
The Committee recommends that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘Special Advocates’ to participate in control order proceedings. The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order, any revocation or variation application, or in any appeal or review application to a superior court relating to or concerning a control order.
R 31: Criminal Code – Control orders – Minimum standard of disclosure of information to controllee
The Committee recommends that the legislation provide for a minimum standard concerning the extent of the information to be given to a person the subject of an application for the confirmation of a control order, or an application for a variation or revocation of a control order. This requirement is quite separate from the Special Advocates system. It is intended to enable the person and his or her ordinary legal representatives of choice to insist on a minimum level of disclosure to them. The minimum standard should be: “the applicant must be given sufficient information about the allegations against him or her to enable effective instructions to be given in relation to those allegations.” This protection should be enshrined in Division 104 wherever necessary.
R 32: Criminal Code – Control orders – Information concerning appeal rights
The Committee recommends that section 104.12 should be amended to provide that the information to be given to a person the subject of an interim control order include information as to all appeal and review rights available to that person or to the applicant in the event that an interim order is confirmed, varied or revoked.
R 33: Criminal Code – Control orders – Relocation condition
The Committee recommends that subsection 104.5(3)(a) be amended to ensure that a prohibition or restriction not constitute – in any circumstances – a relocation order.
R 34: Criminal Code – Control orders – Curfew condition
The Committee recommends that a prohibition or restriction under subsection 104.5(3)(c) – a curfew order – be generally no greater in any case than 10 hours in one day.
R 35: Criminal Code – Control orders – Communication restrictions
The Committee recommends that, other than in any exceptional case, the prohibitions or restrictions under subsection 104.5(3)(f) permit the controlled person to have access to one mobile phone, one landline, and one computer with access to the internet.
R 36: Criminal Code – Control orders – Limit on duration
The Committee recommends that, for the present time, there be no change to the maximum duration of a control order, namely a period of 12 months.
R 37: Criminal Code – Control orders – Terms of an interim control order
The Committee recommends that section 104.5 should be amended to ensure that, whenever a control order is imposed, any obligations, prohibitions and restrictions to be imposed constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances.
R 38: Criminal Code – Control orders – Oversight by the Commonwealth Ombudsman
The Committee recommends that the Commonwealth Ombudsman be empowered specifically to provide general oversight of interim and confirmed control orders.
R 39: Criminal Code – Preventative Detention
The Committee recommends, by majority, that the Commonwealth, State and Territory ‘preventative detention’ legislation be repealed. If any form of preventive detention were to be retained, it would require a complete restructuring of the legislation at Commonwealth and State/Territory level, a process which, in the view of the majority of the Committee, may further reduce its operational effectiveness.
R 40: Administrative Decisions (Judicial Review) Act 1977 – Schedule 1 Exemptions from review
The Committee recommends that paragraph (dab) be retained. If preventative detention remains, the Committee recommends that paragraph (dac) be removed.
R 41: Section 6 Crimes (Foreign Incursions and Recruitment) Act 1978 – Hostile activities in foreign States
The Committee recommends an amendment to subsection 6(1)(a) to remove the need to prove an intention to engage in hostile activity in a particular foreign State.
R 42: Section 16 Financial Transaction Reports Act 1988
The Committee does not recommend any change to this provision.
R 43: Crimes Act 1914 – Federal stop, search and seizure powers – Emergency entry without a warrant
The Committee recommends that the legislation be amended to require the police authorities exercising power under section 3UEA to report annually to the Commonwealth Parliament on the use of this power.


In Fishlock v Campaign Palace Pty Ltd [2013] NSWSC 531 the Supreme Court of New South Wales has held that Paul Fishlock, former executive creative director of advertising agency The Campaign Palace, was entitled to damages for repudiation of contract as well as long service leave.

The defendant initially asserted that Fishlock, by reason of his possession, custody and control of certain templates and presentations, had taken confidential information or intellectual property belonging to the agency and "by reason thereof engaged in what was described as serious misconduct". It was further alleged that had the defendant known of these matters it would have had a right to summarily terminate the plaintiff's employment. As a result the defendant asserted he was not entitled to any compensation for redundancy or other matters. By reason of his possession of the templates and presentations he had not come to equity with clean hands. Further, the plaintiff's assertion that the contract was repudiated amounted to unconscionable conduct on the part of the plaintiff.

On the second day of the trial, the agency abandoned any claim based on an alleged misuse by Fishlock of templates and presentations belonging to the defendant.

 The defendant also asserted that the plaintiff had failed to mitigate his losses and was obliged to bring to account any earnings from other sources which he had made after leaving the employment of the defendant.

Fishlock was successful in his application for damages over the agency's repudiation of his employment contract.

The Court accepted that the agency's decision to appoint another person as National Chief Creative Officer and reduce Fishlock's standing and status amongst the agency staff amounted to repudiation of the employment contract.