08 August 2013

Overlawyered or simply misunderstood?

‘What does and should influence the number of lawyers?’ by Richard Abel in (2012) 19(2/3) International Journal of the Legal Profession 131 comments that
Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term ‘lawyer’, which English-speakers take for granted, has no obvious equivalent in many other languages. Civil law countries have the category of ‘jurist’, including everyone with a law degree; but a very large proportion of law graduates would not be recognized as lawyers in common law countries. Terms like ‘avocet’, ‘avvocato’,  ‘abogado’ or ‘anwalt’ refer to lawyers with rights of audience in court – but this criterion would exclude jurists employed by corporations and civil servants, who are considered lawyers in common law countries. Notaries in civil law countries perform many of the functions of common law lawyers. Japan is famous for having few bengoshi compared with its population; but many of the functions of lawyers in other countries are performed by tax accountants, patent attorneys, and judicial and administrative scriveners in Japan.
Abel notes that "At a moment like the present, when legal professions in many countries worry that their numbers are increasing in the face of great uncertainty about the future of the global economy, it is essential to review the ways in which lawyers have regulated their numbers in the past". He goes on to critique mechanisms such as -
  • Numerus clausus 
  • State monopolies 
  • Ascribed characteristics
  • Formal education
  • Examinations
  • Apprenticeship
  • Employment
  •  Market Influences
Abel concludes
Social constructivist theory urges us to ask who is defining the social problem and why they are doing so. Temporary imbalances between supply and demand are a cost of every profession. Legal professions emerged and matured by aggressively restricting supply, thereby increasing the monopoly rents they were able to extract and produce rising – some would say excessive – lawyer incomes. Recent increases in the production of lawyers were the response. They may have overshot the mark. Certainly law school enrolments failed to respond quickly to the global recession. But rather than rush to impose ‘solutions’ that once again restrict the production of lawyers, we should reflect on the historical and comparative experience of supply control by lawyers. The legal profession exists to serve the public, not its own members. Entry barriers can be justified only if they are demonstrably necessary to ensure a minimum level of competence. Advocates of restrictive practices must show they are essential to protect clients against lawyer overreaching or misconduct. Efforts to expand access to justice should be applauded, not stigmatized.
In R v Stoneman [2013] QCA 209 - one of those puzzling 'sovereign citizen' or 'freemen' cases - the self-represented applicant was convicted in March 2012 after a summary trial in the Kingaroy Magistrates Court of two offences of driving without a licence under Transport Operations (Road Use Management) Act 1995 (Qld) s 78 and for an offence of breaching his bail undertaking. He appealed against each of those convictions and the sentence imposed in relation to the second driving offence under Justices Act 1886 (Qld)  s 222 to the District Court. In November of that year the primary judge dismissed the applicant's appeals. The applicant filed an extension of time to apply for leave to appeal from those orders under District Court of Queensland Act 1967 (Qld) s 118(3). His application was almost four months out of time.

In this instance the Court states
The applicant has not filed a proposed notice of appeal but in his outline of argument he raised many issues. His primary contention was that the District Court judge demonstrated bias by failing to address his arguments and by ignoring crucial facts. He asserted that the judge erred in not accepting his claim that he had "an unalienable right (no licence required) of the private individual to use the common ways to travel as per the right to life, liberty and the pursuit of happiness". He also emphasised his contention that s 78 of the Act prohibited only the use of a motor vehicle for commercial purposes. In light of his allegations of bias, his rehearsal in this application of many of the arguments raised before the District Court judge, I will briefly discuss the District Court judge's reasons for refusing his appeal. 
Her Honour rejected the applicant's argument that the Act did not apply to him because he was a freeman on the land and had not consented to membership of the legal fiction known as the State of Queensland, which enacted s 78. Her Honour also dismissed as senseless and unmeritorious his distinction between travelling on the public road in the exercise of a common law right and driving on a public road. Her Honour rightly identified that any common law right of freedom of movement on public roads would not be offended by a requirement for a driver to be licensed when operating a motor vehicle on a public road. 
Her Honour found the applicant's claim that there was a permanent and irrevocable estoppel against the Queensland Crown to be without foundation. As the relevant facts placed before the acting magistrate were not disputed and the applicant raised no lawful defence, her Honour rightly found that the charges under s 78 of the Act were proved and that his appeal against conviction in relation to them must fail. 
Her Honour also determined that the Magistrates Court registrar, in refusing to issue a subpoena to the former local State Member of Parliament to attend the hearing so that the applicant could question her about whether he had given his consent to her representing or governing him, was of no assistance in his appeal.
I turn now to his allegation in his written material that the District Court judge was biased in ignoring crucial facts and failing to address his arguments. The applicant's outline of argument in this respect was not easy to comprehend. Her Honour was certainly not bound to answer every incomprehensible contention raised by him when the unremarkable proposition that he was bound by the statutory law of Queensland was a complete answer to all his claims. Her Honour, however, made a commendable effort to answer all his remarkable contentions. No fair-minded lay observer could reasonably apprehend that her Honour did not bring an impartial and unprejudiced mind to the resolution of the matters before her. The fact that her Honour received some support in her conclusions from decisions in other cases and jurisdictions is the application of the doctrine of precedent and not an indication of bias. This ground of appeal is not made out. 
He claimed that the District Court judge did not deal with his assertion that he was acting under a mistake of fact. He had, he stated, an honest and reasonable belief that he did not need to ask for permission to drive his vehicle and did not knowingly and intentionally contravene any law. This belief provides no defence. Any such mistake was a mistake of law and not a mistake of fact, and does not undermine the correctness of any of his these convictions. 
The applicant next contends that the District Court judge did not deal with his submission that the acting magistrate did not read his submissions. This probably refers to the acting magistrate's statement in his reasons that the applicant had raised issues that he did not propose to address as they were irrelevant to the charges, and that he raised many matters but not in a way that one could attempt to address them all and comments of that ilk. The applicant has not demonstrated that the magistrate was wrong in that assessment or that any of the applicant's incomprehensible submissions before the magistrate could have resulted in different orders. The evidence against him in respect of all three convictions was overwhelming.

07 August 2013


'Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions' by Rebecca Tushnet in Intellectual Property At the Edge edited by Rochelle Dreyfuss & Jane Ginsburg comments that
 Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards such overlapping claims. In order to ensure that their combined scope is no greater than the sum of their parts, both trademark and copyright defenses ought to be considered together. The Barbie cases highlight the problem that overlaps between the two regimes can challenge the very idea of IP boundaries, unless robust defenses exist against overclaiming.

Animals as rights containers

'Nonhuman Rights to Personhood' by Steven M. Wise in (2013) 30 Pace Environmental Law Review 1278 comments
To help explain the importance of legal personhood to my classes on “Animal Rights Jurisprudence,” I draw an “Animal Rights Pyramid” with four horizontal lines. It sets out four requirements necessary for any plaintiff to vindicate a legal right. The first and lowest level is literally and figuratively foundational. Does a nonhuman animal or any being have the capacity to possess any legal right at all? This is what the Nonhuman Rights Project is initially focusing on. What arguments might persuade a common law appellate court that a nonhuman animal plaintiff is a legal person, that is, a being with the capacity for possessing any legal right? 
Imagine a legal person as an empty “rights container.” The Nonhuman Rights Project is preparing litigation intended to persuade a common law high court that a nonhuman animal, like a human, is a legal person–a “rights container”–an entity with the capacity for legal rights. In a few minutes, I will get to the arguments that support a finding of Level One legal capacity. Once a court agrees with them, we move up to Level Two legal rights.  
As Level One asks whether a plaintiff has the capacity to possess any legal right, Level Two asks to what rights is she then entitled? I ask my students to imagine they are holding a pitcher filled with rights, ready to be dripped into the “rights container”– our nonhuman animal plaintiff–and which was determined in Level One. We must justify each right we drip into our “container” to a court. 
Once we have dripped in as many rights as a court will agree with, the Third Level asks: does our plaintiff have the private right to assert her cause of action? The cases the Nonhuman Rights Project is considering will assert common law causes of action that do give private rights of action. We reach Level Four, the top of the pyramid. Level Four “standing” requires the defendant to have committed the act that injured the plaintiff and can be redressed by the court. “Standing” is an issue so unusual that lawyers who represent human beings and other legal persons rarely consider it, for it automatically exists. 
What are the arguments for Level One legal capacity and Level Two legal rights? ... I had long asked myself: what is it that entitles us humans to legal personhood? Why do we have certain fundamental rights? Where do they come from? I had no preconceptions; I wanted to know. I spent six years pouring through books at the Boston University library. They took me past Hammurabi’s Code, to the Hebrews, Greeks, and Romans, through the dawn of English common law, all the way to now. These were not easy books and few people ever checked them out of the library. I would leave them protruding an inch from the stacks. When I returned in a year or three, they would be still be sticking out that inch. Those books helped me realize that one’s most fundamental rights are intended to protect one’s most fundamental interests and that, in human beings, these were bodily liberty and bodily integrity. Bodily liberty is so important that, if you are a very bad person, you may be punished by having your bodily liberty taken away. Bodily integrity may even be more important. We may not touch other humans without their consent. 
Courts recognize that bodily liberty and bodily integrity are fundamental human interests protected by fundamental human rights. What is a sufficient condition for having fundamental rights? Not a necessary condition, a sufficient condition? I kept bumping into the idea of dignity. Dignity has many meanings. But dignity in the sense of being a quality imbued with intrinsic and incomparable value was something courts, legislators, and international treaties embraced. As I tried to understand what courts meant by dignity, I kept encountering the idea of autonomy. 
We humans are, to some important extent, autonomous and self-directed. Judges repeatedly emphasize this. If autonomy is sufficient for fundamental human rights–and if it is not, then what is?–it ought to be sufficient for fundamental rights of nonhuman beings who possess it. I wrestled with defining the minimum level of autonomy sufficient for legal personhood and came up with what I called in Drawing the Line, “practical autonomy.” 
Practical autonomy has three elements. First, one must be cognitively complex enough to want something. Second, one must be able to act intentionally to achieve one’s desires. Third, one must have a sense of self complex enough so that it matters to whether one’s achieves one’s own goals. 
Consciousness is implied in “practical autonomy.” One who is not conscious cannot be autonomous. It is easy for me to realize I am conscious. It is harder to prove someone else is. Indeed I cannot prove that anyone else is conscious. But it should be sufficient to show that the other being, whether mom or mom’s dog, acts as I do when I am conscious. And from an evolutionary point of view, the closer the common ancestry is between any two beings, the more likely it is that their similar behaviors have similar mental causes. I am conscious. I engage in activities that require consciousness. If a chimpanzee acts the same way, I can reasonably conclude she is conscious too. After all, our last common ancestor lived about six million years ago–not long in evolutionary time–and we have remarkably similar brains and genes. 
What are the arguments that–for example–a chimpanzee should have Level Two rights? Two broad categories of common law rights exist, noncomparative rights and comparative rights. Noncomparative rights are rights to which one is entitled because of who one is or how one is put together, without comparing her to someone else. A liberty right is a noncomparative right, and liberty rights are what I have been talking about today.

AGIMO Big Data Strategy

AGIMO has released its Big Data Strategy [PDF], foreshadowed elsewhere in this blog

The section on Privacy states that -
The Australian Government is committed to protecting the privacy rights of individuals. Big data raises new challenges in respect to the privacy and security of data. The data management policies of government agencies will always be guided by the applicable legislative controls that already regulate government’s use and release of data sets and information. Agencies will continue to need to comply with these controls for any big data related activities. Maintaining the public’s trust in the government’s ability to ensure the privacy and security of the data stores that it has control over is paramount. This Strategy aims to ensure that this issue remains at the forefront of agency deliberations when they consider developing business cases for big data projects. A number of specific issues around privacy need to be managed if agencies are to realise the benefits that big data can potentially provide, including:
  • better practice in linking together cross-agency data sets; 
  • better practice use of third party data sets; 
  • de-identification and the “mosaic effect”; 
  • the necessary considerations to make before releasing open data; and 
  • data retention and cross-border flows.
Forthcoming guidance will be produced to increase agencies understanding of these issues and provide advice and best practice for addressing these. The use of big data, like any other form of data or information, is subject to a number of legislative controls including the Freedom of Information Act 1982, the Archives Act 1983, the Telecommunications Act 1997 and the Electronic Transactions Act 1999. Agencies also need to comply with the Data-matching Program (Assistance and Tax) Act 1990 wherever Tax File Numbers are used. The use of big data is also regulated by the Privacy Act 1988 which regulates the handling of personal information throughout the information lifecycle, including collection, storage and security, use, disclosure, and destruction.
In an expression of the bland leading the blind AGIMO's vision is -
The Australian Government will use big data analytics to enhance services, deliver new services and provide better policy advice, while incorporating best practice privacy protections and leveraging existing ICT investments. The Australian Government will be a world leader in the use of big data analytics to drive efficiency, collaboration and innovation in the public sector.
The vision supports the following capabilities:
Enhanced services
  • provide better information about service delivery outcomes and inform future models for the provision of these services as well as identifying where gaps exist under current service delivery arrangements; 
  • allow government agencies to better target services to those that need them, thus allowing more efficient and effective delivery of services; and 
  • enable agencies to improve services by tailoring service delivery based on the individual needs of businesses and communities.
New services and business partnership opportunities
  • the analysis of big data is expected to lead to the development of new services based on insights derived from the analytics process; and 
  • industry developments and the maturity of tools and services that utilise big data analytics will create entirely new business opportunities and industries based on using open government data.
Improved policy development
  • support better policy development by strengthening evidence-based decision making and provide more immediate information about policy settings and their impacts.
Protection of privacy
  • incorporate ”privacy by design” into big data analytics projects, and proactively ensure the privacy of the individual’s data and information; and 
  • adopt better practice methodologies that address the potential risk to privacy posed by big data analytics and “the mosaic effect”.
Leveraging the Government’s investments in ICT technologies
  • leverage the Government’s investments in technology such as the National Broadband Network; and 
  • help to lower the cost of entry for big data analytics projects through use of the National Broadband Network in conjunction with cloud technologies.
The Australian Public Service is expected to be guided by Principles "in their approach to big data" -
Principle 1: Data is a National asset
Data sets that government holds are a national asset and should be used for public good.
  • Sharing this data, in accordance with the Declaration of Open Government, and other legislative requirements, will enhance the culture of engagement.
Principle 2: Privacy by design
Big data projects will incorporate ‘privacy by design’.
  • This means that privacy and data protection is considered throughout the entire life cycle of a big data project. 
  • All data sharing will conform to the relevant legislative and business requirements.
Principle 3: Data integrity and the transparency of processes
  • Agencies embarking on the use of big data analytics to deliver improved service delivery are encouraged to seek peer review and conduct public consultation on these projects where appropriate. 
  • Agencies are encouraged to conduct Privacy Impact Assessments (PIA) for any new big data projects and publish these PIAs (or modified versions if necessary). 
  • Each party to a big data analytics project must be aware of, and abide by their responsibilities regarding: the provision of source data and the obligation to establish and maintain adequate controls over the use of personal or other sensitive data they are entrusted with; and/or the management of the project from start to finish and the obligation for its sound conduct, in line with the agreed requirements of the responsible agencies. 
  • These processes will help to strengthen the integrity of big data analytics projects and help to maintain the public’s confidence in the Government’s stewardship of data.
Principle 4: Skills, resources and capabilities will be shared
Skills and expertise in data analytics will be shared amongst government agencies and industry where appropriate.
  • Resources such as data sets and the analytical models used to interrogate them, as well as the infrastructure necessary to perform these computations, will be shared amongst agencies where appropriate and possible to do so. 
  • Big data analytics capability will be strengthened by a Whole-of-Government approach through efforts such as the DACoE.
Principle 5: Collaboration with industry and academia
The industry, research and academic sectors have been working on big data analytics projects for some time and continue to invest heavily in the skills, technologies and techniques involved with big data analysis.
  • Government agencies recognise the research sector as a key partner in delivering insight from big data analytics as well as a key producer and custodian of valuable data collections. 
  • Government agencies will collaborate with industry, academia, non-government organisations and other relevant parties locally and internationally on big data analytics. This engagement will be encouraged by the Big Data Working Group, the Australian Government Chief Technology Officer and the whole-of-government DACoE. 
  • These engagements will leverage private and public sector experience and expertise in big data analytics and increase government agency knowledge and skills in this area.
Principle 6: Enhancing open data
Open data will continue to be enhanced as agencies are encouraged to release information with the objective of outsourcing and encouraging innovation. Government agencies will approach big data analytics projects under the principles on open PSI. These principles rest on the Gov 2.0 premise that PSI is a national resource that should be available and discoverable for community access and use. Government agencies will need to balance these considerations with any conflicting legal obligations (such as those relating to security and privacy).
  • Where appropriate, the results of any government big data projects will be made public and the data sets used or created in the analytical process will be released onto data.gov.au, under open licences, for public consideration and consumption. 
  • Big data analytics will build on the implementation of Gov 2.0. The data.gov.au portal will be enhanced and will continue to serve as the central data repository for discoverable and useable government information.

06 August 2013


'The Trans-Pacific Partnership: Japanese Strategic Diplomacy or Chinese Containment' by Larry Catá Backer in (2013) 13(1) Washington University Global Studies Law Review argues
 The role and shape of international trade agreements is changing. No longer simple devices for easing the movement of goods across borders, it is becoming both an instrument of integrated economic regulation at the supra national level and a tool of international relations within the emerging global economic order. The recently expanded scope of negotiations over the Trans Pacific Partnership (TPP) serves as a case in point, one that focuses both on the trilateral relations between Japan, the United States and China, and on the form of competition for control of the language of supra national economic regulation. The focus of this paper is on one critical new aspect of Japanese trade relationships that is likely to have significant economic and geo-political effects — the decision by Japan to join the U.S. led negotiations for a Trans Pacific Partnership (TPP), even as it pushes ahead with a Free Trade Agreement with China and Korea. 
I will first describe the TPP from its genesis as an effort by Brunei, Chile, New Zealand and Singapore to better integrate their economic relationships into current efforts to create a powerful free trade area of the Pacific that excludes China. I will then suggest some important strategic considerations that may follow from this important decision in the relationships between Japan, the U.S. and China, with emphasis on the way in which this affects contests for control of international rulemaking within the structures of economic globalization. 
For Japan TPP may represent containment within complex networks of multi lateral arrangements that protects its sizeable investment in China, at least temporarily, and permit it to leverage its power to influence global trade rules. For the U.S. TPP presents an opportunity to leverage power as well, by creating an alternative to WTO for moving trade talks forward in ways that serve U.S. governance interests in a more comprehensive way. For China, TPP represents an additional layer of containment, meant to constrain its economic power and to limit the value of its form of state capitalism. TPP represents the next wave of plurilateral comprehensive agreement that will shape the framework of global economic governance. It also suggests the growing importance of international agreements as the space within which the structures of economic regulation will be determined, to the detriment of state power. Within these structures TPP also reaffirms that Japan stands uncomfortably close to the fissure that separates U.S. from Chinese interests, and must continue to rely on the internationalization of rulemaking to protect its interests. An independent path for Japan is unlikely to be an option worth considering.
The TPP (aka TPPA) has been described as 'son of ACTA'. A perspective on ACTA is provided in 'Covert International Intellectual Property Legislation: The Ignoble Origins of the Anti-Counterfeiting Trade Agreement (ACTA)' by Michael Blakeney in (2013) 21(1) Michigan State International Law Review.

Blakeney comments that
Considerable controversy was generated in the United States by the introduction into the Senate in May 2011 of the Protect IP Act (PIPA) and by the Stop Online Piracy Act (SOPA) which was introduced into the House of Representatives in October 2011. Both pieces of legislation sought to facilitate the capacity of the IP enforcement authorities in the U.S. to combat the online trade in pirated copyright works and counterfeit trademarked goods. Provisions included court orders to take down websites which made infringing products available and payment facilities from conducting business with infringing websites, search engines from linking to the sites, and court orders requiring Internet service providers to block access to the sites. Existing criminal laws were to be extended to penalise the unauthorized streaming of copyrighted content.
Characterizing SOPA and PIPA as attempts to introduce censorship of the Internet, notable companies such as “Tumblr, Mozilla, Techdirt, and the Center for Democracy and Technology were among many Internet companies who protested by participating in ‘American Censorship Day’ on November 16, 2011.” They displayed black banners over their site logos with the words “STOP CENSORSHIP.”
On January 18, 2012, Wikipedia’s English language site and an estimated 7,000 other smaller websites coordinated a service blackout to raise awareness. Over 160 million people viewed Wikipedia’s banner. “Other protests against SOPA and PIPA included petition drives, with Google stating that it had collected over seven million signatures, as well as boycotts of companies and organizations that supported the legislation.” Paradoxically, in a protest about censorship, the web sites of organizations that were considered supporters of the legislation, such as the United States Justice Department, Federal Bureau of Investigation (FBI), Universal Music Group, the Recording Industry Association of America (RIAA), and the Motion Picture Association of America (MPAA) were slowed or shut down with denial of service attacks.
On January 18, 2012, Senate Majority Leader Harry Reid announced that a vote on PIPA would be postponed until the issues raised about the bill were resolved, and on January 20, 2012, House Judiciary Committee Chairman Lamar Smith announced that the Committee would postpone consideration of SOPA until there was wider agreement. Although lauded as a triumph for the Internet community, the apparent demise of SOPA and PIPA was paralleled by the covert triumph of the Anti-Counterfeiting Trade Agreement (ACTA), was described on Internet blogs as being “SOPA’s Pimp Daddy,” as “SOPA and PIPA on Steroids,” and as being “more dangerous than SOPA”  and “worse than SOPA.”
ACTA was adopted by the negotiating parties, including the U.S., on April 15, 2011. On October 1, 2011, a special signing ceremony was held in Tokyo, with the United States, Australia, Canada, Japan, Morocco, New  Zealand, Singapore, and South Korea all signing ACTA. This article explores how ACTA was negotiated without the scale of the protests which accompanied SOPA and PIPA.

Overseas Privacy Frameworks

Two interesting articles by Graham Greenleaf -

'Indonesia's Data Protection Regulation 2012: A Brief Code with Data Breach Notification' in (2013)  122 Privacy Laws & Business International Report 24 (with Sinta Dewi) comments that
 Indonesia is usually ignored in discussions of data protection, but as an Asian democracy with a population of over 250 million (exceeded only by China and India) and a fast-developing economy with 6.2 % economic growth in 2012, its position is important to data privacy in Asia. Although it is the largest ASEAN state, it has moved slowly to provide comprehensive legal protection for personal information, and is now lagging behind its ASEAN neighbours, Singapore, Malaysia and the Philippines, all of which now have data protection laws covering much of their private sectors (and the public sector, in the case of the Philippines).
Although Indonesia has not yet gone down the path of comprehensive legislation, it has in late 2012 enacted a Regulation under its 2008 law on electronic transactions (previously dormant in relation to data protection but active in some areas such as cybercrime), adding more data protection elements, and a data breach notification requirement. This article analyses these new developments, and concludes that Article 15 of the Regulation, coupled with Article 26 of the 2008 law, and various other provisions in the Regulation, provides between them most of the elements of a brief data protection code, enforceable through court actions. However, there have as yet been no actions to enforce these rights, and Indonesia does not have a data protection authority or other enforcement body to do so.
The article also discusses the ongoing moves within various Ministries to develop a full data protection law, and various reasons for this in different Ministries, and the constitutional cases on telecommunications interception which have decided that there is an implied constitutional right of privacy, which may affect both the government’s obligations to enact data protection laws, and the interpretation of any laws so enacted.
'Uruguay Starts Convention 108's Global Journey with Accession: Toward a Global Privacy Treaty?' in the same journal at 20 comments
The Council of Europe has started in Uruguay data protection Convention 108’s long march toward becoming the world’s only data privacy treaty. On 12 April 2013 it announced that Uruguay's accession to Convention 108 (and to its Additional Protocol) was complete, and will enter into force in respect of Uruguay on 1 August 2013, making it the 45th state to become a party to the convention, and the first non-European party. Morocco has also been invited to accede.
This article analyses how much we know – and still do not know – about the accession process following the Uruguay accession, and the steps taken so far in the Morocco accession. It concludes that fourteen implications can be drawn to date, while the accession process is still evolving. Some problems are inherent in the lack of a complete fit between the Convention and its Additional Protocol, and ambiguities inherent in Article 23 dealing with non-European accessions. But no obviously faulty decisions have yet been made which would lower the standards of the Convention, and thus endanger its future.

05 August 2013

TEQSA and the Dow Report

Australian Government has released the report [PDF] of the Independent Review of Higher Education Regulation, meant "to ensure an optimal balance is reached that maximises the quality of higher education and transparency while minimising red tape burden".

The review was undertaken by Professor Kwong Lee Dow AO (former Vice Chancellor of the University of Melbourne) and Professor Valerie Braithwaite of the Regulatory Institutions Network at the ANU.

The Executive Summary states that -
Today, more Australians than ever, particularly those from lower socio-economic status backgrounds are participating in higher education. All the while, Australia continues to maintain its outstanding reputation for delivering quality education.
Our educational institutions, on the whole, comprise people at all levels committed to ensuring quality and striving for excellence for their students and in support of the Australian community and economy more generally. In an increasingly competitive and global education market, it is crucial that Australia continues to demonstrate and further develop the quality of its higher education sector. To ensure Australia’s ongoing competiveness, an effective regulator is a necessary and crucial component of the higher education regulatory architecture.
This review was established to address concerns raised by the sector about the effectiveness of Australia’s higher education regulatory framework. We have concluded that having one body responsible for compliance and monitoring such as the Tertiary Education Quality and Standards Agency (TEQSA) is crucial to maintaining the quality of Australia’s higher education sector. Moreover, we have found wide and continued support for the role of a national higher education regulator. However, TEQSA faces challenges which require action. Some of these challenges are a by-product of the higher education architecture and indeed the legislation underpinning regulation, while others are a result of TEQSA’s regulatory approach. To address these, a range of reforms are recommended that aim to improve both the broader regulatory architecture and the regulatory approach currently implemented by TEQSA.
The design of Australia’s regulatory architecture ensures that only quality providers are able to enter and remain in the system. Having a qualifications framework, higher education standards and a national regulator encompasses best practice principles of regulation. However, how they engage with each other will determine how well the ultimate aim of continuous quality improvement will eventuate.
TEQSA was established in an already crowded regulatory environment. The higher education regulatory community is multi-layered and diffused. Having placed TEQSA into this environment it appears that many legislative intersections do not support its mandate. TEQSA’s establishment has also identified that changes to other entities may be necessary to streamline the regulatory framework.
The regulatory principles of necessity, risk, and proportionality embedded in the TEQSA Act were included to ensure that the focus of TEQSA’s activities did not unnecessarily burden existing high quality providers. However, TEQSA’s legislation does not appear to be operating in the manner intended by Government or the sector. This is largely due to the lack of relationships in TEQSA’s governance and structure. Our recommendations therefore seek to build and improve relationships between the regulatory community.
Our recommendations are centred on what TEQSA should be delivering as a regulator in the current environment to build the future direction of Australia’s regulatory framework.
We believe that the aspects of quality assurance and best practice currently undertaken by TEQSA are better identified and delivered through other means already in place in the regulatory community.
There are many ways to make this happen. Therefore we recommend that to re-focus TEQSA’s effort and approach, its functions should be reduced so as to improve its timely delivery of its most important tasks – provider registration and course accreditation.
In a sector comprised of many self-accrediting institutions with high degrees of autonomy, the notion of ‘earned autonomy’ is an interesting one. We believe that the principles of regulatory necessity, risk and proportionality when applied in line with the Government’s intention, support a high degree of autonomy which supports the aspiration from the sector and government for light touch regulation across the sector.
We also considered to what extent the regulatory architecture was appropriately engaged and able to work together. It appears that often the legislative intersections are applied in isolation and underpin unnecessarily repetitive reporting requirements. The changing nature of tertiary education and the increasing number of multi-sector providers demands more effective and efficient application of regulatory requirements.
While work on aligning and restructuring legislative requirements should be commenced now, in the interim, the duplication of requirements could be compensated for by establishing transparent relationships between the respective entities. If responsibilities can be clarified and trust extended, then some activities could be reduced by one agency recognising the work of another. For this to happen, we need improved communication, consultation and collaboration. The Government must consider how these are implemented - whether through enforceable requirements or more informally. We recommend as an initial approach that non-statutory arrangements for advisory groups be enforced through clear and transparent memorandums of understanding.
Ultimately, our recommendations are to require wherever possible that consideration is actively given to aligning and streamlining regulatory activities and reporting. As the report identifies, the sector has been constantly at the behest of disruptions that steer the flow of events. And there are more to come. The respective reviews of standards, VET and higher education, have the capacity for further significant disruption and it is with these in mind, that we recommend that the Government align the work of individual entities to improve the efficiency of providers and ensure consistent protections for students.
This goal also applies to the Government and the work of its department/s. We acknowledge the initiatives already underway to reduce the reporting burden for providers. But these alone are not enough. The National Advisory Group for Higher Education Data and Information is a good start. To bring about the whole of architecture improvements required for the tertiary education sector, we recommend that greater impetus is given to further simplifying and, streamlining regulation towards one tertiary sector.
The report notes that
We began this review in late May 2013. Along the way through our conversations and the many thoughtful submissions, we gave serious consideration to whether Australia continues to need TEQSA. Looking back, we are of the view that TEQSA’s establishment came at a time in which a different future was imagined. This future was based on assumptions that there would be many more new providers entering the higher education sector and that the market would be responding to quite different forces such as student choices and the international market. Notwithstanding the many changes taking place in higher education including new forms of delivery and structural responses such as those planned for Central Queensland University or the University of Canberra, we nevertheless see less regulatory risks emerging in higher education that would be managed centrally, particularly among established providers.
Throughout the review we have also been reminded of the ambitions that the Government and stakeholders had for TEQSA and have come to the following key conclusions: there is support for a national regulator. No one suggested returning to eight systems of provider registration for the non self-accrediting sector. The consensus which we fully support is the unambiguous need for a national regulator.
The regulatory world that we imagine for the future is one in which providers are primarily self regulating. The regulator in this world has clear goals to manage the entry of new providers to the market and checks in on any difficulties emerging for the sector as identified by the regulatory community. This would be a regulator that ensures new entrants to the sector understand and meet the requirements to be an Australian higher education provider based on clear standards. It is not a regulator that stifles innovation or limits niche providers in preference for larger institutions and universities. It is a regulator that is responsive to its sector.
We have concluded that TEQSA plays an important national and international role in asserting and maintaining the quality of Australia’s higher education system which needs to be retained. We note TEQSA itself in reflecting on its regulatory practice in recent times has signalled some changes in direction and we welcome these. Nevertheless, the question for us has evolved to how to shape TEQSA’s mandate in a way which ensures its resilience and relevance in higher education into the future.
The recommendations are
1. The Government should reduce TEQSA’s functions to focus on its core activities as a regulator; to reduce the number of Commissioners over time and revise their roles and responsibilities to allow greater decision making-responsibilities to be assigned to case managers or other TEQSA staff as appropriate;
2. The Government should establish mechanisms for TEQSA to consult with stakeholders and receive sector advice; for example by creating an overarching advisory council with stakeholder representatives and subject experts. Such a council could also provide advice to the Minister on how TEQSA is progressing against its Strategic Plan;
3. TEQSA should detail how the principles of risk, necessity and proportionality apply to different types of providers, for example, publicly funded institutions, for profit providers and/or not-for-profit. This could be effected through a set of legislative guidelines.
4. TEQSA should identify how existing regulatory processes such as Mission-based Compacts, funding agreements and the Institutional Performance Portfolios could be used to streamline the re registration processes for established providers;
5. TEQSA should prioritise improved timeliness in delivering TEQSA’s key activities of initial provider registration and course accreditation. This could be effected through a Ministerial direction to the TEQSA CEO regarding allocation of resources.
6. The Government must reduce duplication across within the regulatory architecture by requiring specific consideration of how any matter in question, for example the ESOS National Code, aligns with its other regulatory components and partners. This could be enacted through structured MoU and letters of arrangements between TEQSA, the department and other regulatory bodies to cover such items as: o Financial viability assessments for providers approved under HESA; o Risk assessment priorities; o Consultation forums.
7. The Government must align better the work of existing players, such as the Higher Education Standards Panel and the Australian Qualifications Framework Council and how they are structured to support a quality tertiary education system. Government also needs to address and manage concerns for the sector regarding the role of the AQF and the outcomes of the review of higher education standards in a way which usefully guides their implementation by higher education providers in support of a quality system.
8. The Government must reduce duplication between the four Acts. This could be commenced by formalising, and extending the roles of information sharing / policy advisory groups, such as NAGHEDI, the tertiary education standards setting agencies and meetings of the regulators and the department. Any requirements related to the business nature of providers must be considered against the principle of ‘collect once, use multiple times’, such as: o Corporate governance; and o Financial reporting.
9. The Government must identify and agree the alignment of activities between the Acts with ASQA and TEQSA that can be undertaken (i) without legislative change; and (ii) with legislative change, such as: o Improving information sharing provisions through identifying what data and information is available and how constraints are applied o Aligning the registration periods; penalty processing, nature and format of national registers and fee structures; and o Assigning responsibility for registering dual sector providers, fit and proper persons, and financial viability assessments.
10. The Government engage with TEQSA to agree where duplication, reporting or otherwise, can be addressed immediately; and
11. The Government identify as soon as possible how NAGHEDI’s role can be formalised and strengthened with the aim of creating a single national higher education data collection agency; and include a role for NAGHEDI as the data clearinghouse / survey advisory body for TEQSA. 

Qld Privacy Regime

The Queensland Department of Justice and Attorney-General is seeking comment on a discussion paper [PDF] regarding the Information Privacy Act 2009 (Qld) as part of the statutory review of that enactment and associated Right To Information Act 2009 (Qld).

That review is to
  • decide whether the primary objects of the Acts remain valid; 
  • decide whether the Acts are meeting their primary object; 
  • decide whether the provisions of the Acts are appropriate for meeting their primary objects; and 
  • investigate any specific issues recommended by the Minister or the Information Commissioner.
The 22 page paper considers the Information Privacy Act’s privacy provisions, ie those that regulate the collection, storage, use and disclosure of personal information by the state government. It asks the following questions -
  • 1. What would be the advantages and disadvantages of aligning the state Information Privacy Principles (IPPs) with the Australian Privacy Principles (APPs), or adopting the APPs in Queensland? 
  • 2. Does the IP Act inappropriately restrict the sharing of information? If so, in what ways? Do the exceptions need to be modified? 
  • 3.  Should the definition of personal information in the IP Act be amended to bring it into line with the definition in the Commonwealth Privacy Amendment Act 2012
  • 4. Should government owned corporations in Queensland be subject to the Queensland’s IP Act, or should they continue to be bound by the Commonwealth Privacy Act? 
  • 5. Should s 33 be revised to ensure it accommodates the realities of working with personal information in the online environment? (Section 33 restricts the circumstances under which personal information can be transferred outside Australia by Queensland Government agencies - agencies are required to consider whether personal information will be transferred out of Australia and may only transfer personal information out of Australia where one of a number of exceptions applies, eg "the agency is satisfied on reasonable grounds that the transfer is necessary to lessen or prevent a serious threat to the life, health, safety or welfare of an individual, or to public health, safety or welfare")
  • 6. Does s 33 present problems for agencies in placing personal information online? 
  • 7. Should an ‘accountability’ approach be considered for Queensland? 
  • 8. Should the IP Act provide more detail about how complaints should be dealt with? 
  • 9. Should the IP Act provide more flexibility about the timeframe for complaints to the OIC to be lodged? 
  • 10. Are additional powers for the Information Commissioner to investigate matters potentially subject to a compliance notice necessary? 
  • 11. Should a parent’s ability to do things on behalf of a child be limited to Chapter 3 access and amendment applications? 
  • 12. Should the definition of ‘generally available publication’ be clarified? Is the Commonwealth provision a useful model? 
  • 13. Should the reference to ‘documents’ in the IPPs be removed; and if so how would this be regulated? 
  • 14. Should IPP 4 be amended to provide, in line with other IPPs, that an agency must take reasonable steps to ensure information is protected against loss and misuse? ("IPP 4 provides that an agency having control of a document containing personal information must ensure that the information is protected against loss and misuse etc. The strict requirement in IPP4 means that there is no element of reasonableness or a requirement to take reasonable steps as is the case in the other IPPs. In effect, an agency would be responsible for a breach of IPP 4 where, for example, an employee simply steals personal information, even where all possible measures have been taken to keep the information secure.")
  • 15. Should the words ‘ask for’ be replaced with ‘collect’ for the purposes of IPPs 2 and 3?

Qld FOI Regime

The Queensland Department of Justice and Attorney-General is seeking comment on a discussion paper [PDF] regarding the Right to Information Act 2009 (Qld) as part of the statutory review of that enactment.

The paper considers the RTI Act and the access and amendment provisions of the Information Privacy Act 2009 (Qld).

04 August 2013


'Apologies as a Legal Remedy' by Robyn Carroll in (2013) 35 Sydney Law Review 317 notes
An apology is an unorthodox legal remedy. Most likely it is also regarded as unsuitable as a remedy in the eyes of many lawyers. Yet we know that apologies are very important to many people, including complainants, litigants and victims of crime and that there has been increasing attention paid by the law to apologies in recent years. The reference to apology in a legal context inevitably raises questions about its meaning. What does an apology involve? What makes an apology meaningful? Is the law concerned whether an apology is given sincerely? Is an ordered apology an apology? This article addresses these and other questions, the role of apologies as a remedy for parties to a civil action, and court orders to apologise, and the grounds on which ordered apologies have been justified. It also refers to the apology as a remedy in litigation and other legal proceedings aimed at advancing public and professional interests by means of economic and professional regulation. The aim of the article is to demonstrate that apologies have an established remedial role in areas of Australian law and to identify some important issues and challenges that arise as a result.  
Carroll notes that
The article draws upon the author‘s published research relating to apology orders, provides an extended analysis of the remedial role of apologies and discusses recent developments. In work to date, the following propositions have been advanced, (sometimes with co-authors):
  • A court exercising equitable jurisdiction has the power to order a person to make an apology, spoken or in writing, in private or in public and to publish the apology in some manner. The order will be one for specific relief. In most cases it would be in the form of a mandatory injunction; if the purpose is to enforce a promise to apologise it will be an order akin to specific performance; 
  • When a plaintiff seeks an apology from the defendant a court should give consideration to the plaintiff‘s remedial choice in exercising its discretion and determining the appropriate remedial response to the defendant‘s wrongdoing; 
  • It is not appropriate for a court to order a defendant to apologise unless this is a remedy sought by the plaintiff; 
  • Aside from the usual discretionary factors that a court considers when deciding whether to grant specific relief, it needs to consider the remedial 'fit' between the aims and purposes of the cause of action and the remedy. Where the relief sought is statutory, a court will also be guided by statutory goals; 
  • An ordered apology, and other forms of specific relief, have the potential to strengthen the vindicatory function of the law and to meet the psychological needs of plaintiffs; 
  • An ordered apology has the potential to be 'good enough‘ to satisfy the purposes of a plaintiff and the law if an apology is understood as having multiple components that need not all be present in all circumstances.
She concludes
This article has identified a variety of circumstances in which an apology is available as a remedy in Australian law. Courts invested with equitable jurisdiction have the power to order an apology using some form of order for specific relief. It is suggested, however, that this is a power a court will be slow to exercise for a number of reasons.
First, common law jurisdictions have a marked preference for monetary remedies in the form of compensatory damages, with equitable remedies ranking second and declaratory relief 'a distant third'. Second, a court is likely to be reluctant to depart from remedies traditionally available for common law wrongs for fear of appeal and possible reprimand for unorthodox use of equitable relief. Third, in exercising its discretion to order equitable relief, a court will be concerned about interfering with the defendant‘s freedom of speech. Fourth, there may be indications of legislative intention that direct courts away from exercising their remedial discretion to develop the apology as an order An order to apologise is more likely to be made pursuant to a power conferred by statute. In this case, the remedy will usually serve remedial and statutory purposes that go beyond meeting the remedial needs of the individual plaintiff. 
Broadly stated, the arguments in favour of ordering an apology as a personal remedy are that it gives effect to a plaintiff‘s remedial preference and it serves remedial purposes beyond compensation. There has been little empirical research conducted to verify what remedial purposes are actually served by legal remedies generally and there is an absence in particular of research into the value attributed to an ordered apology by litigants, courts and lawyers. There is some support in the empirical research referred to in this paper for the conclusion that an ordered apology may be perceived to have psychological value to a person who has been wronged by another. This supports a theory that apology has many meanings and the value people attribute to each apology is highly circumstantial. Accordingly, the absence of willingness and sincerity will not necessarily mean that an ordered apology has no value to a plaintiff. Some of the circumstances identified in this paper in which apology orders can be made involve an order to apologise to the public or a section of the community rather than to an individual. In the absence of empirical research on the effectiveness of these remedial orders, arguably they will rely for their justification on regulatory theories and theories relating to collective apologies. 
There is evidence of growing legal interest in the apology as a means of redress for civil wrongdoing. This article provides an overview of the law on apologies as a remedy and identifies a number of the issues and challenges that need to be addressed if apologies are to play a greater and more formal remedial role than in the past. The potential identified in this article for ordering that apologies be made in circumstances other than when an individual has suffered harm as a result of wrongdoing calls for closer scrutiny and debate, as many of the precepts on which existing orders to apologise have been justified are not necessarily present. As a first step, by ensuring that lawmakers, lawyers, judges and the wider community are aware that orders of this nature can be made, careful consideration can be given to the circumstances in which this is appropriate and to the meaning of apology in the context of legal remedies.