05 October 2013

Animals

'Animal Protection Laws of Singapore and Malaysia' by Alvin W-L See in (2013) Singapore Journal of Legal Studies 125 offers
an overview and assessment of the laws relating to the protection of animals in Singapore and Malaysia. The focus is on identifying the interpretations of the statutory offences of cruelty that will best promote their objectives and effectiveness.
See concludes
There is a clear need for legal reform of existing cruelty laws in Singapore and Malaysia. For this purpose, the Animal Welfare Act 2006 (U.K.),  which is drafted in a clear, simple and yet effective manner, serves as a good reference. 
A. Clarity, Simplicity and Coherence 
The offences under the AWA (U.K.) apply to “protected animals”, i.e. animals that are “commonly domesticated”, “under the control of man whether on a permanent or temporary basis”, or “not living in a wild state”.  Wild animals will continue to be protected under the Wild Mammals (Protection) Act 1996. The penalties for cruelty are harsher under the AWA (U.K.). The likely reasoning is that once an animal comes within close proximity to humans, or is under the control of a human, there is a greater duty not to cause it unnecessary suffering. 
The main cruelty offences are set out in s. 4. Under s. 4(1), it is an offence for any person to cause, through any act or omission, unnecessary suffering to a protected animal while knowing, or ought reasonably to have known, that his act or omission has or is likely to have such effect. It is also an offence, under s. 4(2), for a person responsible for an animal to permit, or to fail to take reason- able steps to prevent, the causing of unnecessary suffering to the animal by another person. It is therefore made plain that criminal liability could be found on negligence alone. This is important because, as demonstrated by cases such as Peterssen and Hussey, we cannot be certain that judges will adopt an objective test in the absence of clear statutory language.  Section 4(3) also sets out a non-exhaustive list of factors to be considered when determining whether the animal’s suffering is unnecessary: (a) whether the suffering could reasonably have been avoided or reduced; (b) whether the conduct which caused the suffering was in compliance with any relevant enactment or any relevant provisions of a licence or code of practice issued under an enactment; (c) whether the conduct which caused the suffering was for a legitimate purpose, such as— (i) the purpose of benefiting the animal, or (ii) the purpose of protecting a person, property or another animal; (d) whether the suffering was proportionate to the purpose of the conduct concerned; whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person. T(e)he influence of past case law is clearly noticeable. Paragraph (a) captures the meaning of unnecessary suffering explained in Hall and Isaacs.  Paragraph (e) adopts the test of objective reasonableness expounded in the same cases,  while paragraphs (c) and (d) codify the Ford v. Wiley test.
B. Improving Animal Welfare 
Professor Broom defines the welfare of an animal as “its state as regards its attempts to cope with its environment”.  The success (or failure) of the animal in so coping is to be measured in terms of degree. As Professor Radford expresses, “at any given time, the state of its welfare will be located on a point somewhere along a spectrum between very good at one end, indicating an excellent quality of life, and, at the other, so poor that it ultimately proves to be fatal”.  Numerous studies have been conducted to identify the measures of welfare, focusing on the animal’s physiological and behavioural responses to the environment.  In practical terms, one may say that the extent of an animal’s success in coping with the environment depends largely on the fulfillment of its 
Where an animal is brought into human possession or control, it is not unreasonable to require the person responsible for its care to maintain its welfare at an appropriate level by ensuring that its needs are fulfilled. As Professor Whitfort said, imposing a duty to this effect is “not unnecessarily burdensome” since “[t]he choice to keep animals is voluntarily assumed”.  The real breakthrough of the AWA (U.K.) lies in its imposition of such a duty. Section 9(1) of the AWA (U.K.) imposes a positive duty on a person responsible for an animal to “take such steps as are reasonable in all the circumstances to ensure that the needs of [the] animal... are met to the extent required by good practice”. Such “needs” would, according to s. 9(2), include: “(a) its need for a suitable environment, (b) its need for a suitable diet,  (c) its need to be able to exhibit normal behaviour patterns, (d) any need it has to be housed with, or apart from, other animals, and (e) its need to be protected from pain, suffering, injury and disease”. Experts may be called to give evidence on other needs, especially of a particular animal or type of animal, and whether or not they have been met in accordance to good practice. As Professor Broom said, “[w]e need to know what animals prefer if we are to treat them in a humane way”.  In many cases, however, the courts would be well qualified to determine the matter based on common knowledge. Good air, water, shelter, food and exercise (in the case of mammals) are obvious basic requirements. If a person who wishes to acquire an animal is unsure of what amounts to good practice, the onus is on him to seek professional advice before the acquisition. 
The most important difference between ss. 9 and 4 is that the former does not require proof of (unnecessary) suffering. Traditional cruelty laws only apply when an animal has (unnecessarily) suffered, i.e. the welfare of the animal has become very poor. Animal welfare laws, on the other hand, seek to improve the lives of animals by ordering persons responsible for them on how they ought to be properly cared for. This will have a considerable impact on the lives of many animals, particularly those that spend substantial portion of their lives confined. In practical terms, s. 9 would allow enforcement action to be taken to assist an animal without having to wait until it has actually suffered. While suffering is the clearest indicator of poor welfare, an animal need not have suffered for its welfare to be poor. The animal may have yet to experience the effects of its poor welfare. For instance, the welfare of an animal may be poor, leading to increased risk of harm, although the harm has yet to occur. Professor Broom provides an example:
If the housing conditions or management procedures result in impaired immune system function and consequently increase susceptibility to disease, then the state of the animal is clearly affected and welfare is poor. This poor welfare occurs before any suffering, although it may well become worse as disease and associated suffering develop.
Likewise, the welfare of an abandoned animal may be poor because of the increased risk of it experiencing starvation, falling ill, being run down by vehicles, etc., even if none of these has yet to occur when the animal is found. Thus, cases of abandonment are now mostly dealt with under s. 9. Other examples of poor welfare without suffering include reduced fitness (physical or biological) and frustration. 
In Singapore and Malaysia, there are presently piecemeal efforts (mainly through the requirement of licensing)  to improve the welfare of animals in specific contexts: zoos,  laboratories, farms, slaughterhouses, pet shops and exhibitions. 
It is illogical not to extend the same to all animals under human care and control. A general welfare law will go some way towards addressing the AVA’s tendency to classify alleged cruelty cases as concerned with welfare issues.  Like the cruelty laws, however, the welfare standards are susceptible to restrictive interpretations, often influenced by factors such as human benefits and established industry practices. Ensuring a minimum standard of welfare, while undeniably a step for- ward, is unlikely to do very much. It is therefore important that the courts and law enforcement personnel align their definition of good welfare with expert and public opinions, uninfluenced by industry biases. 
IX. Conclusion 
It is essential that animal protection laws be drafted in a way that is clear and intel- ligible to all persons having a role to play in their interpretation and enforcement. At the same time, such laws must remain flexible enough to reflect changes in public opinion. As society progresses and moral values change, what was previously regarded as lawful infliction of suffering may now be regarded as cruelty.  One way to achieve such balance is through the concept of unnecessary suffering, which has the obvious merit of flexibility. It is important, however, to not leave such a wide concept undefined. It is suggested in this paper that unnecessary suffering is best interpreted as imposing a test of objective reasonableness, relying on the hypothetical reasonable person to supply the acceptable standard of conduct. The attributes of this person will to some extent depend upon society’s attitude towards animal suffering and exploitation. Of course, such attitudes are not always collectively held. Industries that exploit animals for profit may not have the same attitude towards animal suffering as others, and may resist regulations which increase the costs of animal care. It is important that we give careful consideration to what best represents the moral values of our society and determine whether certain activities, although prof- itable and advantageous to humans, should nonetheless be outlawed. The extent to which we extend legal protection to animals may be seen as an indicator of our society’s moral progress towards a world of more kindness and respect, and less suffering.

03 October 2013

Risk and Refugees

'Queer cases make bad law' by James C. Hathaway and Jason Pobjoy in (2012) 44(2) New York University Journal of International Law and Politics 315 asks
Do “queer cases” - like proverbial “hard cases” - make bad law? 
In this article, we take a careful look at how common law courts have addressed the asylum claims of homosexuals fleeing anti-gay prosecutions and violence in their home countries. Two top courts - the High Court of Australia, and the Supreme Court of the United Kingdom - have now tackled the question in decisions hailed as major victories for both gay rights, and for the continuing vitality of the Refugee Convention itself. 
In these recent decisions, both courts struck down a doctrine under which gay claims to asylum had been rejected on the grounds that the applicants could - and should - “be discreet” about their sexuality, and thereby avoid the risk of being persecuted at home. In an extraordinary passage that has attracted significant public attention, Lord Rodger of the new UK Supreme Court asserted that “just as male heterosexuals are to be free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically colored cocktails and talking about boys with their straight female mates”. 
While these decisions are clearly liberating (indeed, exciting), this article provides the first critical assessment of their impact on international refugee law as a whole. We suggest that to reach their preferred result, the Australian and UK courts ran roughshod over the duty to find a “well-founded fear” of future persecution; that they failed clearly to understand the real human rights costs of the enforced concealment that so-called “discreet” homosexuals face; and that by finding that the Convention’s requirement to show that risk “for reasons of” a form of protected status was met when risk follows only from going to concerts, drinking cocktails, or engaging in “boy talk” the courts severed the established - and critically important - link between refugee law and non-discrimination norms. 
We offer an alternative theory of how international refugee law can and should embrace the claims of sexual minorities who can avoid serious harm only by accepting self-repression. We believe that such claims should be assessed on the basis of the real, forward-looking risk of serious psychological harm that ensues in such circumstances. We also seek to open a discussion about just when risks that follow not from sexual orientation as such, but rather from actions vaguely (perhaps even stereotypically) associated with homosexuality can honestly be said to be threats “for reasons of” one’s sexuality.
The authors conclude
“Hard cases, it has frequently been observed, are apt to introduce bad law.” In formulating what has become a legal adage, Judge Rolfe expressed his concern that the faithful application of legal rules — in that case, rules on privity of contract — would require him to deny relief to a deserving litigant, an injured coachman who had no direct contractual relationship with the negligent repair firm. The circumstances of S395 and HJ and HT are, of course, quite different. Despite what we view as the courts’ misapplication of the “well-founded fear” test, failure accurately to identify the relevant risk of being persecuted, and disregard of the principled limits set by the refugee definition’s nexus requirement, the courts ultimately ruled in favor of granting asylum to the applicants. As such—and in stark contrast to the disabled coachman of concern to Judge Rolfe who would receive no relief—the misapplication of legal rules in S395 and HJ and HT meant that gay men seeking relief from the misery of a life of perpetual enforced concealment in Bangladesh, Cameroon, and Iran would be able “to live freely and openly . . . to be as free as their straight equivalents . . . to live their lives in the way that is natural to them as gay men, without fear of persecution.” 
In the face of such a clearly correct result, we may appear churlish to insist that the basis for recognition of refugee status in such cases be revisited. We wish to be absolutely clear that, like nearly everyone else in the human rights community, we deeply admire both the Australian and British courts’ rejection of a “duty of discretion” to avert persecution, and more generally their commitment to the context-sensitive application of refugee law to gay applicants. 
But it would in our view be a serious error to allow our instincts simply to celebrate the cases to override our intellectual responsibility to ensure that refugee law evolves in a way that is both principled and sustainable. While there is no question that S395 and HJ and HT are watershed decisions, Oliver Wendell Holmes famously cautioned that “[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their importance . . . but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” 
As we have been at pains to show, the courts’ errors are not without real and detrimental consequences, both for gay claimants (at least in the medium term) and for persons seeking refugee status on the basis of other Convention grounds (as decisions have already shown). Most important, the correction of these errors in line with the framework advocated here will in no sense compromise the ability of gay applicants and others to access asylum when faced with the prospect of indefinite self-repression to avert clear threats to their safety. 
No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases. 
And no, it is not the case that refugee status is owed whenever serious harm is threatened by reason only of an applicant having engaged in some activity that is vaguely or stereotypically associated with homosexuality (or any other protected ground). Drawing on norms of non-discrimination law, the “for reasons of” criterion in the Convention definition was conceived as a principled delimitation of the beneficiary class. This means that it is ordinarily a form of immutable identity — whether actual or imputed — that is the lynchpin to refugee status. In general terms, refugee status is owed only where risk ensues because of who the applicant is or what he believes. Where risk is the product not of identity per se but rather of having engaged in a particular activity, the nexus requirement can still be met. But this is so only when the activity engendering the risk is fairly deemed to be intrinsic to the protected identity. 
Refugee law is not an all-embracing remedy for every circumstance in which full freedom is not made available. This realization should not, however, blind us to the dominant reality: refugee law fairly interpreted may be imperfect, but is nonetheless a powerful means by which human rights commitments can be made real in the lives of those fundamentally disfranchised in their home states. It is a sign of strength that refugee law encompasses not just gay applicants facing the clear risk of prosecution under anti-gay laws or rabid vigilante violence, but also persons who would opt for the prisoner’s dilemma of sacrificing their own psychological well-being to avert such harms. Similarly, the commitment of refugee law to deny states the right to circumscribe the beneficiary class on any basis other than by reference to principles of non-discrimination law, including both forms of fundamental identity and engagement in activities at the core of such protected identities, is a critical bulwark against self-interested retrogression. 
We will, however, occasionally have to acknowledge that some persons whose aspirations for freedom pull at our heart-strings may not be able to meet even these progressively interpreted tests. Law is imperfect, and international law — subject to the need to secure the consent of an extraordinarily diverse community of states — is perhaps more imperfect than most law. It is nonetheless clear that the context-sensitive application of norms already agreed by states can yield powerful results, including the liberation of sexual minorities from ongoing self-repression.

Organisational Law

'The Organizational Premises of Administrative Law' by William H. Simon in Law and Contemporary Problems (Forthcoming) argues that
Administrative law is out of touch with forms of public administration developed since the Progressive and New Deal eras. It is strongly influenced by bureaucratic conceptions of administration that see (1) legitimacy in terms of prior authorization; (2) organization as a balance of stable rules and unaccountable discretion, and (3) error detection as a reactive, complaint-driven process. Yet, many public programs developed since the 1970s strive to establish post-bureaucratic or performance-based forms of administration that view (1) legitimacy in terms of exposure to public oversight; (2) administration as a matter of comprehensive but flexible planning, and (3) error detection as proactive. I illustrate the dominance of the latter style of organization in major contemporary regulatory and social welfare regimes. I also show that, while the administrative law of the casebooks and treatises ineffectively addresses key issues of accountability presented by the newer regimes, a parallel law of public administration has emerged in recurring provisions of modern regulatory and welfare statutes, in executive-branch initiatives, and in the activities of courts in institutional reform cases. This “noncanonical” administrative law is more attuned to performance-based organization. Canonical doctrine could improve by accommodating this alternative conception of organization.
Simon concludes
The pre-occupation of the canon with judicial control of administrative action now seems anachronistic and parochial. As scholarship and teaching acknowledge increasingly, many of the most important legal determinants of administrative action arise from statutes other than the APA, executive initiatives only tenuously connected to rule- making and adjudication, and judicial practice in institutional reform cases. These initiatives tend to have a structure quite different from that of canonical doctrine. The differences in structure reflect differences in organizational premises. Canonical doctrine tends to pre-suppose bureaucratic organization. Noncanonical doctrine often arises from performance-based organization. Updating the canon thus requires broadening its 
It also requires reconsideration of the canonical approach to the issue with which it has been most concerned – judicial review of discrete administrative action. As Edward Rubin says, the Administrative Procedure Act needs re-drafting.  But significant re-orientation could occur without new legislation. Most of the canonical doctrine reviewed here arises from judicial interpretation of the Constitution and the general clauses of the APA (notably the “arbitrary, capricious” standard) and a half-acknowledged exercise of common law powers. The argument above supports suggestions for re-orientation along three broad lines. 
First, judicial doctrine should be more attentive to oversight accountability.It is not controversial that courts should enforce legislative decisions where there are legislative decisions to enforce. However, contemporary legislation increasingly addresses situations where neither the dimensions of the problems nor their solutions can be known in advance of intervention. Legislation thus becomes procedural and involves fewer decisions of the kind that generate substantive “law to apply”. Courts should not try to squeeze determinate guidance out of texts that do not reflect any determinate understanding. At the same time, they should be more willing in situations of statutory ambiguity to intervene to require measures that reinforce political accountability. Chevron suggests the right sequence – first, consider whether the statute gives the agency discretion and then, whether the agency has acted reasonably. But the second step should be less interpretive and more procedural. It bears on reasonableness whether the agency has acted coherently, reflectively, and transparently.
Second, doctrine should be less intensely focused on rule-making and less deferential to non-rule-governed activity (in APA-speak, to informal adjudication). The burden of rule-focused review should be lessened, perhaps by eliminating pre-enforcement review or by more deference to procedurally adequate decisions. At the same time, the court should not leave non-rule-governed administration immune from “arbitrary-and-capricious” review. Recent judicial practice in structural reform cases shows that courts can intervene to enforce accountability without dictating the substantive terms of administrative practice. It also shows that courts can explicitly take into account the level of administrative dysfunction in deciding when intervention is appropriate. Canonical doctrine purports to rely on categorical indicators as to when intervention is appropriate. Structural reform doctrine, more plausibly, often insists on a showing of major dysfunction. 
Third, appropriate error-detection efforts should not be framed exclusively in terms of duties of individual fairness to complainants. Responsible administration requires proactive efforts to identify and remedy errors, and it often also requires a diagnostic approach to error that seeks the systemic implications of particular problems.

02 October 2013

Sentencing, Individualised Justice and Identity

Two HCA judgments today regarding sentencing and identity, emphasising individualised justice.

In Bugmy v The Queen [2013] HCA 37 the High Court has unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had increased the sentence imposed on William David Bugmy.

Bugmy is an Indigenous person who "grew up in circumstances of social deprivation".
He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. He started drinking alcohol and taking prohibited drugs when he was 13 years old. He reports having witnessed his father stabbing his mother 15 times. He and his siblings all have records for violence. The appellant's record of juvenile offending commenced when he was 12 years old. From that age he was regularly detained in juvenile detention centres. When he turned 18 he was transferred to an adult prison. He has a long record of convictions including for offences of violence. He was 29 years old at the date of the present offences. He has spent much of his adult life in prison. He gives a history of repeated suicide attempts. He has maintained a long-term relationship with a woman by whom he has a daughter. He and his partner are both alcoholics. The child has been placed in the care of her maternal grandmother. The appellant also has a history of head injury and of auditory hallucinations 
Bugmy had been convicted in the District Court of New South Wales for intentionally causing grievous bodily harm to a correctional services officer while incarcerated at Broken Hill. Bugmy was sentenced to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years. The DPP appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.

The Supreme Court in R v Bugmy [2012] NSWCCA 223 allowed that  appeal, re-sentencing Bugmy to a non-parole period of five years with a balance of term of two years and six months.

Bugmy argued in the High Court that the Court of Criminal Appeal erred in allowing the DPP appeal without having held that the original sentence was manifestly inadequate and without having considered the exercise of its residual discretion to dismiss an appeal by the DPP. Bugmy also argued that it erred in holding that the extent to which his deprived background as an Indigenous person could be taken into account in sentencing diminished with time and repeat offending.

The High Court unanimously allowed his appeal, holding that as the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate and had not considered its residual discretion to dismiss the DPP appeal, its authority to re-sentence Bugmy had not been enlivened. The High Court accordingly set aside the Court of Criminal Appeal order relating to the offence and remitted the DPP appeal.

The High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or that person's membership of an ethnic or other group, something that's likely to be missed in coming mass media coverage.

The majority commented that
... the propositions stated in [R v Fernando (1992) 76 A Crim R 58] are particularly directed to the circumstances of offenders living in Aboriginal communities. Aboriginal Australians who live in an urban environment do not lose their Aboriginal identity and they, too, may be subject to the grave social difficulties discussed in Fernando. Nonetheless, the appellant's submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background. 
It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult[66]. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
The Court held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. Importantly, those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of imprisonment (such as rehabilitation and personal and general deterrence) that must be balanced in each specific case.

That is consistent with Munda v The State of Western Australia [2013] HCA 38, with the High Court, by majority, dismissed an appeal from State of Western Australia v Ernest Munda [2012] WASCA 164, a decision of the Court of Appeal of the Supreme Court of Western Australia. The latter had allowed an appeal against the original sentence imposed on Munda (for the manslaughter of his de facto partner) on the basis that it was manifestly inadequate.

Munda had pleaded guilty to manslaughter, being sentenced in the WA Supreme Court to a term of imprisonment of five years and three months, with a non-parole period of three years and three months. The sentencing judge took Munda's personal circumstances into consideration as a mitigating factor, noting that he was a "traditional Aboriginal man" who had been exposed to the negative influences of alcohol and family violence from a young age.

The Court of Appeal allowed the State's appeal against the sentence, resentencing Munda to seven years and nine months imprisonment (with Munda remaining eligible for parole).

Munda by special leave appealed to the High Court on the grounds that the Court of Appeal failed to correctly apply the principles concerning State appeals against sentence and that it failed to give proper regard to his antecedents and personal circumstances. A majority of the High Court upheld the Court of Appeal's decision that the original sentence was manifestly inadequate, holding that the same sentencing principles must be applied in every case, irrespective of an offender's identity or membership of an ethnic or other group. The Court indicated that it was relevant to take into consideration an offender's circumstances of severe social disadvantage.

It also held that the Court of Appeal did not err in not exercising residual discretion to refuse to allow the State's appeal.

A perspective on Bugmy is provided by 'Indigenising Sentencing? Bugmy v The Queen' by Thalia Anthony in (2013) 35(2) Sydney Law Review 451, with the Fernando Principles being discussed in the NSW Sentencing Council's 2009 'Fernando principles: the sentencing of Indigenous offenders in NSW' [PDF].

Practitioner Duty of Care

Kenny J in Carey v Freehills [2013] FCA 954 at [310-317] offers a summary of Australian law regarding circumstances in which a solicitor will be found to have a duty of care to a person who has not retained that practitioner -
310 Generally speaking, solicitors do not owe a duty of care to persons who are not their clients: see, for example, Hill v van Erp (1997) 188 CLR 159 at 167 (Brennan CJ). A solicitor owes a duty of care to a client who has retained that solicitor. Freehills owed a duty of care to WPC and WPM, who had retained Mr Shearwood; but neither company is a cross-claimant. In Hill v van Erp at 167, Brennan CJ said:
Generally speaking, … a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession. That is because the solicitor’s duty is to exercise professional knowledge and skill in the lawful protection and advancement of the client’s interests in the transaction in which the solicitor is retained and that duty cannot be tempered by the existence of a duty to any third person whose interests in the transactions are not coincident with the interests of the client.
311 Where a solicitor’s conduct demonstrates an assumption of responsibility, with known reliance by the plaintiff, a duty of care may arise by reason of an implied professional retainer agreement: see, for example, IGA Distribution Pty Ltd v King and Taylor Pty Ltd [2002] VSC 440 at [231] (Nettle J); Pegrum v Fatharly (1996) 14 WAR 92 at 95 (Ipp J), 101-102 (Anderson J, Kennedy J agreeing); and Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 62 (Charles JA, Callaway and Batt JJA agreeing). 
312 There are, however, circumstances in which a duty of care on the part of a solicitor may arise independently of a retainer. Thus, a duty of care has been said to arise in the context of negligent misstatement causing loss: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, at 252 (Brennan CJ). A duty of care has also been recognised as being owed by a solicitor to a beneficiary of a client’s will, in the absence of reliance by the third party beneficiaries: see Hill v van Erp at 166-168 (Brennan CJ), 172-173 (Dawson J), 234 (Gummow J). Significantly, however, there the High Court emphasised the coincidence of interest between the client and the beneficiaries. In Blackwell v Barroille Pty Ltd (1994) 51 FCR 347 a Full Court of this Court held that a solicitor owed a duty of care to the client’s trustee in bankruptcy as a result of the reliance by the trustee on the solicitor. See further, Beach Petroleum NL v Kennedy and Others (1999) 48 NSWLR 1 at 45-48 [188]-[205] and Hawkins v Clayton (1988) 164 CLR 539 at 578 (although Deane J’s analysis there depended on treating proximity as a determinative factor, an approach that has since been rejected: see below).
313 Where a duty of care is claimed to have a risen in a new circumstance or with respect to a new category of relationships, Australian law now requires a multi-factorial approach in assessing whether a duty of care has indeed arisen. As the New South Wales Court of Appeal noted in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 675 [101], the High Court has rejected the doctrine of proximity as a determinative factor in deciding whether a duty of care existed, as well as “the two stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonabl[e] foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 and any reformulation of the latter two”. See, for example, Hill v van Erp at 210 (McHugh J), 237-239 (Gummow J), Perre v Apand Pty Ltd (1999) 198 CLR 180 at 193-194 [9]-[10] (Gleeson CJ), 197-198 [25]-[27] (Gaudron J), 208-213 [70]-[83], 216 [93] (McHugh J), 268 [245]-[247], 273 [255], 285 [280]-[287] (Kirby J), 303 [330]-[335] (Hayne J), 319 [389], 324 [398]-[400], 326 [406] (Callinan J); Sullivan v Moody (2001) 207 CLR 562 at 577-580 [43]-[53] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 583 [99] (McHugh J), 625 [234]-[236] (Kirby J); and Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at 260 [132] (Crennan and Kiefel JJ).  
314 Caltex v Stavar has become an exemplar of the multi-factorial approach, partly because Allsop P helpfully set out, in a non-exhaustive list (at 676 [103]), the “salient features” in the evaluative task of imputing a duty of care in novel circumstances, including its scope and content. In Caltex v Stavar Allsop P said (at 675 [100]) that the current approach:
recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.
His Honour continued (at 676 [102]):
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. 
315 In connection with the “foreseeability” factor, Allsop P specifically said (at 677 [106]) that:
In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as “proximity” or “fairness” do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility. 
316 The list of “salient factors”, which Allsop P identified, was not intended to be exhaustive: Caltex v Stavar at 676 [104]. See also Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412 at [17], [92]-[94]; Hoffmann v Boland [2013] NSWCA 158 at [31] (Basten JA), [127]-[130] (Sackville AJA, Barrett JA agreeing). It is unnecessary to make findings about all the factors in the list. This point was reiterated in Hoffmann v Boland at [31], where Basten JA said that Allsop P’s “salient features”:
… provide a valuable checklist of the kinds of factors which can be of assistance. They do not constitute mandatory considerations, failure to address which will constitute error of law; nor do they lead to a formula which will provide a result in a particular case. Each involves considerations of varying weight; some will be entirely irrelevant. What is necessary is to focus upon the considerations which are relevant in the circumstances of the particular case. 
 317 By reference to the factors mentioned in Caltex v Stavar and other relevant factors in this case, the Court must assess the circumstances in order to determine whether or not the law will impute a duty of care and, if so, its scope and content. I interpolate that, generally speaking, where the alleged duty of care owed by a solicitor to a non-client conflicts with a duty of care towards the client, a duty of care to the non-client is unlikely to be established. See, for example, Maronis Holdings Ltd v Nippon Credit Australia Pty Ltd [2001] NSWSC 448 at [338].

01 October 2013

EU Intellectual Property Economy

The European Patent Office and EU Office for Harmonization in the Internal Market have released a 142 page Intellectual Property Rights Intensive Industries: Contribution to Economic Performance and Employment in the European Union study [PDF], promoted as the
first EU-wide study on the overall contribution made by intellectual property intensive industries to the EU economy, in terms of Gross Domestic Product (GDP), employment, wages and trade. 
The study includes information on the main IPR-intensive industries and their contribution to economic performance and trade at EU level and an analysis at Member State level. It contains a section on number of patents, trade marks and designs which originate from each Member State, focusing also on job creation in the internal market.
The data is intended to be comparable with that for the US economy. The methodology is accordingly similar to that used in the March 2012 study by the Economics & Statistics Administration of the US Department of Commerce and the United States Patent & Trademark Office noted here.

The report claims that -
  • around 50% of EU industries are IPR intensive, defined as "those having an above average use of IPR per employee"
  • IPR-intensive industries account directly for 26% of all jobs in the EU – around 56 million direct jobs. 
  • With the addition of 20 million indirect jobs, 1 in 3 of all EU jobs rely on IPR intensive industries. 
  • These industries generated almost 39% of total economic activity (GDP) in the EU, worth €4.7 trillion 
  • IPR-intensive industries pay higher remuneration than non-IPR intensive industries, with a wage premium of more than 40%. 
  • The average weekly remuneration in IPR-intensive industries is €715, compared with €507 in non-IPR intensive industries 
  • IPR-intensive industries account for 90% of the EU’s trade with the rest of the world. IPR-intensive industries generated almost 39% of total economic activity in the EU, worth €4.7 trillion, and accounted for most of the EU’s trade with the rest of the world with design- intensive, copyright-intensive and GI-intensive industries generating a trade surplus.
The claimed "Direct contribution of IPR-intensive industries to employment" is
  • Trade mark-intensive industries - 45,508,046 people (20.8% of Total EU Economy)
  • Design-intensive industries - 26,657,617 (12.2%)
  •  Patent-intensive industries - 22,446,133 (10.3%)
  • Copyright-intensive industries - 7,049,405 (3.2%)
  • GI-intensive industries - 374,345 (0.2%)
  • All IPR-intensive industries - 56,493,661

Antiquities and Exports

'Quantifying and describing the South and South East Asian illicit antiquities trade: Australia as an overlooked destination?' [PDF] by Duncan Chappell and Damien Huffer considers the nature and scope of the Australian antiquities market, commenting
 The illicit antiquities trade, especially concerning smaller, portable artefacts deliberately stolen from archaeological sites, temples and museums, remains the greatest threat to the global archaeological record. To date, documenting and interdicting this trade has been severely restricted, primarily due to lax or conflicting enforcement practices, national and international laws, and an incomplete understanding of the size and scope of the market in both ‘supply’ and ‘demand’ countries. Asia, and especially South East Asia, is “on Australia’s doorstep.” Recent events suggest that Australia is an overlooked destination for illicitly obtained Asian-region antiquities. The overarching and immediate goals of this project, therefore, are to begin quantifying and describing the licit and illicit Australian antiquities market associated with the South East Asian region, as well as to collect preliminary data on the trade from one specific country -Vietnam.   
In this Briefing Paper, the reasons for selecting Vietnam as a detailed study are noted, together with proposed plans for ‘in country’ field research. Following this, a preliminary analysis of the nature and scope of the Australian antiquities market is undertaken, including an examination of a recent case, that of BC Galleries (Vic) Pty Ltd v Commonwealth of Australia [noted here], to illustrate deficiencies in the existing cultural heritage protection laws in Australia, and especially the current limited capacity to repatriate looted objects to their country of origin. The paper concludes with observations on the need for reform in both the area of legislation and enforcement policy to ensure Australia fulfils its national and international cultural heritage protection obligations.
'Controls on the Export of Cultural Objects and Human Rights' by Ana Filipa Vrdoljak and Kevin Chamberlain in J.A.R. Nafziger and R.K. Paterson (eds) Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar, in press) comments that
Specialist instruments for the protection of cultural heritage have made oblique and overt reference to respecting established human rights norms since the adoption of the Universal Declaration of Human Rights. Explicit references to human rights and fundamental freedoms have become pronounced in instruments finalised in the last two decades. 
This chapter considers the relevance of human rights for the control on export of cultural objects. It is divided in two parts. The first part details how human rights norms have been referenced in multilateral instruments for the protection of cultural heritage. The second part examines the relationship between controls on the export of cultural material and specific human rights, namely, the right to property, the right to self-determination, the right to participate in cultural life, and minority protection.

Health Data

'Pathways to Success for Multi-Site Clinical Data Research' by Deven McGraw and Alice Leiter in (2013) 1(1) eGEMs (Generating Evidence & Methods to improve patient outcomes) comments that
There are numerous and significant challenges associated with leveraging electronic clinical data for purposes beyond treating an individual patient and getting paid for that care. Optimizing this secondary use of clinical data is a key underpinning of many health reform goals and triggers numerous issues related to data stewardship and, more broadly, data governance. These challenges often involve legal, policy and procedural issues related to the access, use and disclosure of electronic health record (EHR) data for quality improvement and research. 
This paper contributes to the ongoing discussion of health data governance by detailing the experiences of nine multi-site research initiatives across the country The rich set of experiences from these initiatives, as well as a number of resources used by project participants to work through various challenges, are documented and collected here for others wishing to learn from their collective efforts. The paper does not attempt to catalogue the full spectrum of governance issues that could potentially surface in the course of multi-site research projects using electronic clinical data. Rather, the goal was to provide a snapshot in time of data-sharing challenges and navigation strategies, as well as validation that privacy-protective, legally compliant clinical data-sharing across sites is currently possible. 
Finally, the paper also provides a foundation and framing for a broader community resource on governance – a “governance toolkit” – that will create a virtual space for the further discussion and sharing of promising practices.

Conceptualising personally identifiable information

'Reconciling Personal Information in the United States and European Union' by Paul M. Schwartz and Daniel J. Solove in (2014) 102 California Law Review comments that
U.S. and EU privacy law diverge greatly. At the foundational level, they differ in their underlying philosophy: In the United States, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions. In the European Union, privacy is hailed as a fundamental right that can trump other interests. Even at the threshold level — determining what information is covered by the regulation — the United States and European Union differ significantly. The existence of personal information — commonly referred to as “personally identifiable information” (PII) — is the trigger for when privacy laws apply. PII is defined quite differently in U.S. and EU privacy law. The U.S. approach involves multiple and inconsistent definitions of PII that are often quite narrow. The EU approach defines PII to encompass all information identifiable to a person, a definition that can be quite broad and vague. This divergence is so basic that it threatens the stability of existing policy mechanisms for permitting international data flows.    
In this Essay, we argue that there is a way to bridge these differences regarding PII. We contend that a tiered approach to the concept of PII (which we call “PII 2.0”) represents a superior way of defining PII than the current approaches in the United States and European Union. We also argue that PII 2.0 is consistent with the different underlying philosophies of the U.S. and EU privacy law regimes. Under PII 2.0, all of the Fair Information Practices (FIPs) should apply when data refers to an identified person or where there is a significant risk of the data being identified. Only some of the FIPs should apply when data is merely identifiable, and no FIPs should apply when there is a minimal risk that the data is identifiable. We demonstrate how PII 2.0 advances the goals of both U.S. and EU privacy law and how PII 2.0 is consistent with their different underlying philosophies. PII 2.0 thus advances the process of bridging the current gap between U.S. and EU privacy law.

30 September 2013

TRIPS+, Health and Human Rights

'A Human Rights Approach to Intellectual Property and Access to Medicines' (Yale Law School and Yale School of Public Health Global Health Justice Partnership Policy Paper No. 1) by Hannah Brennan, Rebecca Distler, Miriam Hinman and Alix Rogers addresses -
whether and how human rights norms and frameworks can be used to improve access to medicines (A2M) by reducing the barriers that intellectual property (IP) laws create to such access. We evaluate the feasibility and usefulness of four human rights based strategies that our contacts in the A2M community suggested might be particularly productive:
(1) the use of human rights arguments in domestic court cases that deal with intellectual property laws,
(2) the articulation of norms in the United Nations (UN) human rights system,
(3) the use of human rights arguments and frameworks to secure greater pharmaceutical corporate accountability, and
(4) the use of health-related rights to build multilateral and regional alliances that can more effectively oppose free trade agreements (FTAs) with TRIPS-plus provisions (TRIPS being Trade-Related Aspects of Intellectual Property Rights).
We offer insights and specific short- and long-term action steps for each strategy, including recommendations for further research. ...
In the first section, we address how, in the past few years, domestic courts have displayed a growing willingness to use human rights laws to reinterpret and even strike down IP laws that impede access to medications. For example, a court in India concluded that it could not issue injunctions in patent cases where the result would be a substantial increase in the price of medicines, relying in part on the right to life in the Indian constitution. A court in Kenya struck down an “anti-counterfeiting” law as a violation of the right to health in the Kenyan constitution. And a court in Colombia concluded that local health rights required it to enforce price control requirements (if not issue a compulsory license, as activists argued). If the logic of these cases were successfully extended to other countries and other areas of doctrine, domestic human rights protections could serve as a powerful fulcrum to help dislodge harmful intellectual property laws. Judicial articulation of the relationship between the right to health and intellectual property law might also legitimize broader political actions that prioritize the right to health over intellectual property protection. Although such court cases have not always succeeded, and gains have been incremental thus far, this strategy appears to be gaining momentum. We recommend that activists prioritize the pursuit of human rights arguments in IP-related court cases at the national level. We consider this to be the most promising of the four approaches we have considered, with the greatest likelihood of providing real results for access in the near future.
The second section considers how a number of international human rights treaties contain rights that bear on access to medicines. A variety of UN human rights bodies have already begun to develop law at the intersection of health-related rights and IP. An important general comment, for example, makes it clear that access to medicines is a component of the right to health. Human rights bodies have also recognized that TRIPS can negatively impact access and have urged states to utilize TRIPS flexibilities and avoid TRIPS-plus provisions in FTAs. But existing articulations of these obligations remain somewhat underspecified and are often couched in terms that leave much discretion to states. At least one recent human rights document, however, suggests that states “must” use TRIPS flexibilities, at least in certain circumstances. There is potential to build upon this work, to enunciate more specific obligations, and to stimulate more focused reviews of state practice. However, processes for achieving these results within the UN system are challenging. Pursuing a system-wide strategy that incorporates all of the political and expert bodies would require tremendous resources with uncertain rewards. We recommend that A2M activists assess and pursue selected human rights mechanisms that are likely to be the most feasible and productive, especially as applied in specific, strategic moments and country contexts. This may be particularly valuable to help support and disseminate successes at the national level.
The third section engages with the question of corporate accountability. Pharmaceutical corporations have traditionally rejected the notion that they have obligations under the right to health, in part because the international human rights system has not historically considered corporate actors to be directly governed by human rights law. Recent developments, including the emergence of the Working Group on Business & Human Rights, may give A2M activists new tools for campaigns against companies. Some, however, have concerns about the limits of the norms that are being developed in this process, which tend to be modest, for example focusing on transparency. In campaigns, however, human rights language continues to be an important moral resource for targeting corporate conduct. We recommend further discussion by activists of the benefits and limits of formal human rights work on corporate liability, and that “informal” human rights language be invoked in campaigning to help concretize norms on pharmaceutical companies’ moral and legal obligations.
The fourth section notes that activists already utilize human rights arguments to oppose TRIPS-plus provisions in FTAs. Human rights arguments could be additionally employed at all political levels by activists to generate political will and foster solidarity for the formation of multilateral alliances. Heightened negotiating power resulting from south-south alliances framed around human rights could provide developing countries with the opportunity and strength to oppose TRIPS-plus FTA provisions and stem the proliferation of IP norms that threaten access to medicines. Human rights arguments may provide a useful set of norms to help ensure that resulting alliances remain committed to protecting the right to health. We recommend that activists continue to invoke human rights as a political tool to encourage south-south alliances, particularly informal ones, and to help generate leverage against regressive FTAs.
Finally, the paper concludes with several appendices that we hope will be of use to activists working on these issues. Appendix A gathers the most important recent domestic court cases in the area and describes their key holdings. Appendix B collects and describes the most important international human rights documents and standards relevant to IP and A2M. Appendix C offers clarification on the evolution of principles of corporate obligations to respect human rights. (Access to a Dropbox that includes all of the listed resources is also available on request.)

29 September 2013

Control Orders

'What Future for Australia's Control Order Regime?' by Lisa Burton and George Williams in (2013) 24 Public Law Review 182 comments that
Control orders restrict the liberty of an individual in order to protect the community from future terrorist acts. Australia introduced control orders following the example of the United Kingdom, the first and only other nation to enact such measures. Yet in 2011 the UK abolished its control order regime, and replaced it with a more targeted system of Terrorism Prevention and Investigation Measures (TPIMs). In light of these reforms, what future is there for the Australian control order regime? This article compares the design and use of the Australian control order regime with the UK regime on which it was based, and the new system of TPIMs. The authors question whether there was, or is now, any adequate justification for the Australian control order regime.
The authors conclude
The future of the Australian control order regime has recently been considered by the Monitor, in his 2012 annual report, and by the COAG Review. In its written submissions to the COAG Review, the AFP asserted that control orders were a necessary “alternative measure” to the criminal justice system. The AFP argued that the repeal of the control order regime “would create a substantial vacuum in counter-terrorism options” and compromise its ability to protect the Australian community from terrorism and “respond to extraordinary events, such as terrorism on the scale of September 11 and the Anders Breivik attacks”. In response, the COAG Review reported that numerous other submissions had criticised the control order regime, called for its repeal and suggested it should never have come into existence in the first place. Nevertheless, it concluded (with very little elaboration or explanation) that: The clear purpose of protecting the community and preventing a terrorist attack in Australia presently warrants the continuance of [the control order regime]. There remains a genuine risk of terrorist activity in this country, although its level should not be exaggerated. On that basis, control orders are, for the time being, necessary and justified in the counter-terrorism legislative scheme. We consider however that the present safeguards are inadequate and that substantial change should be made to provide greater safeguards against abuse and, in particular, to ensure that a fair hearing is held.
The Monitor expressed in stronger terms grave doubts about the necessity and efficacy of the control order and its impact on individual liberties. He recommended that the control order regime should be repealed, but replaced with a more targeted system of “Fardon-type provisions authorizing [control orders] against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness”.
Are these recommendations justified and sufficient, or ought the Australian control order regime be repealed altogether? Charting out the ‘parallel lives’ of the Australian and UK control order regimes has revealed three important points relevant to answering this question. First, as the COAG review acknowledged, the UK control order regime was enacted to deal with terrorism-related activity in a way which mediated the constraints imposed by the ECHR and the UK criminal law. Secondly, the Australian control order regime was enacted in the wake of the London bombings to follow the example of the UK, despite Australia facing none of the difficulties which prompted the enactment of the UK regime. As a result, the foundations of the Australian control order regime were always shaky. Australia introduced control orders because the UK had done so — not in response to any evidence that Australia’s existing counter-terrorism laws were inadequate, or that Australia needed such laws. This has manifested in the fact that the Australian control order regime has been so rarely and unconvincingly used.
Thirdly, the two control order regimes were not identical. Though the Australian law borrowed heavily from the UK precedent, there were significant differences between the two regimes. The UK regime was also constrained by legal principles that do not apply in Australia; namely, the human rights protected by the ECHR. It is therefore difficult to transcribe the criticisms made of the UK regime to Australia because so many of these criticisms were framed in terms of compatibility with ECHR rights. It is also simplistic to conclude that the repeal of the UK regime necessarily justifies the repeal of the Australian regime. Given this, what can the abolition and replacement of the UK control order regime tell us about the future of the Australian control order regime?
Though not conclusive, the UK reforms are clearly relevant. The UK control order regime was described as international “best practice”; a precedent which Australia ought to follow, even if only in broad terms. The fact that this regime was found to be disproportionate to its preventative purpose, unnecessarily restrictive of human rights and of limited utility provides good reason to reconsider the ongoing justifiability of the Australian regime. The UK reforms are also relevant because they reveal significant problems with mechanisms of this general type. Control orders restrict individual liberty on the basis of predicted future dangerousness, via a process not attenuated by the safeguards of the criminal law. This poses a serious affront to basic values of liberty and fairness. These are values which are, or ought to be, as important in Australia as in the UK. This is especially pertinent given, in key respects, the Australian control order regime is more invasive and less procedurally fair than both the repealed UK control order regime on which it was originally modelled and the new UK TPIM regime. This is difficult to justify given the greater potential of Australian law to prosecute people for terrorist acts, and the lower threat of terrorism faced by the Australian community.
The UK reforms are also relevant to the final stage of the inquiry: would it be sufficient to reform the Australian control order regime, or should it be repealed? The UK insisted that control orders had to been replaced with a more tailored mechanism of a broadly similar kind. This was based on the fact that two of the difficulties that spurred the creation of the control order regime in 2005 were still evident: the inability to deport or detain non-citizen potential terrorists and an inability to use intercept evidence in court.
These problems still do not exist in Australia. Intercept evidence can — now, as in 2005 — be used as evidence in prosecutions for Australia’s many and broad terrorism offences. As the Monitor reported, the possibility that a person may be charged with a terrorism offence at an early stage diminishes the “effectiveness, appropriateness and necessity” of control orders. There is still no principle of domestic law that prevents the Australian government deporting non-citizens, or keeping them in (potentially indefinite) immigration detention. Provided the process by which the detention is ordered is compatible with the separation of powers, the Australian government can preventatively detain non-citizens or citizens who are thought to pose a security risk. In fact, Australia’s federal Parliament has already enacted a separate regime of preventative detention orders.
In this legal landscape, what legitimate purpose could control orders play in Australia? The answer appears to be none. This is reflected in the fact that control orders have been so rarely and unconvincingly used in Australia. Only two control orders have ever been made and only one of those confirmed. Moreover, neither of the two orders made in Australia appeared to serve a legitimate purpose. In the case of Jack Thomas, a control order was used to circumvent the procedural safeguards of the criminal law and impose restrictions on an individual who was ultimately not found guilty of any terrorism offence. In the case of David Hicks, the control order seemed to serve very little purpose as it was imposed against a man who had already served his sentence for a highly questionable criminal conviction. These cases suggest that the Australian control order is not just unnecessary, but can dangerously subvert the processes and principles of the criminal law. This conclusion is supported by the most recent report of the Monitor, which stated that he had found: no evidence that Australia was made appreciably safer by the existence of the two [control orders] issues. It follows that neither [control order] was reasonably necessary for the protection of the public from a terrorist act.
This casts real doubt on the AFP’s claim that the repeal of the control order regime “would create a substantial vacuum in counterterrorism options” and the COAG Review’s conclusion that “control orders are necessary and justified”. Hypothetical and alarmist claims that control orders may be needed in the future to deal with “terrorism on the scale of September 11 and the Anders Breivik attacks” should not be allowed to distract from the fact that control orders have not proven to be necessary or useful. Indeed, it is quite difficult to see how a control order could possibly have prevented either of those horrific attacks. The only concrete justification given for the Australian control order regime, apart from the now discredited UK precedent, is the claim that control orders are cheaper than covert surveillance. Whether true or not, this is a poor rationale for extraordinary powers that permit such significant restrictions of individual liberties.
It is not surprising that the Australia Parliament reacts to terrorist attacks against neighbouring countries or close allies, particularly when those attacks kill or injure Australian citizens. It is also understandable that governments may follow the lead of nations with more experience of terrorism by working with whatever legislative precedent is to hand. However, this creates the risk of importing legislative concepts that are not a necessary and proportionate response to Australia’s particular counter-terrorism needs. This has proven to be the case with control orders. The fear and outrage that the London bombings generated caused Australian parliamentarians to look abroad for ways to strengthen Australia’s counterterrorism laws, and the UK control order regime is what they found. That regime has now been thoroughly discredited. It has been replaced with a new regime of TPIMs, which are undoubtedly an improvement, but continue to cause significant human rights concerns. The UK government decided that this was a justifiable balance to strike, for reasons which do not exist in Australia. All this suggests that it would not be sufficient for Australia to reform its control order regime, as the UK has done. There is simply no basis for the Australian regime at all.

Patent Trolls in UK?

'Is There a Patent Troll Problem in the UK?' by Christian Helmers, Luke McDonagh and Brian J. Love in (2014) 24 Fordham Intellectual Property, Media & Entertainment Law Journal  reports
the findings of an empirical study of patent suits involving non-practicing entities (NPEs) in the U.K. between 2000 and 2010. Overall, we find that NPEs are responsible for 11% of all patent suits filed in the U.K. during this period. Though this is a small percentage by U.S. standards, our study suggests that patent trolling might not be as uniquely American as conventional wisdom suggests. We also find little support for many common explanations for Europe’s relative scarcity of NPE activity. For example, we find that NPEs litigating in the U.K. overwhelmingly assert high-tech patents – even more so, in fact, than their U.S. counterparts – despite higher barriers to software patentability in Europe. Our study does, however, tend to support fee-shifting as a key reason for the U.K.’s immunity to NPEs. We see evidence that the U.K.’s loser-pays legal regime deters NPEs from filing suit, while at the same time encouraging accused infringers to defend claims filed against them. U.K. NPE suits are initiated by potential infringers more often than by NPEs; rarely end in settlement; very rarely end in victory for NPEs; and, thus, result in an attorney’s fee award to the potential infringer more often than a damages award or settlement payment to the patentee. Together, these findings tend to support patent reform bills pending in the U.S. that would implement a fee-shifting regime for patent suits, and may also serve to quell concerns that Europe’s forthcoming Unified Patent Court will draw NPEs to Europe.
'Patent Litigation in the UK' (LSE Legal Studies Working Paper No. 12/2012) by  Helmers &   McDonagh was noted here.

Trade Mark Domains

'Public Domain Preservation in EU Trademark Law – A Model for Other Regions?' by Martin Senftleben in (2013) 103(4) The Trademark Reporter 775 comments that
 Initiatives aiming at the preservation of the public domain constitute an important element of the WIPO Development Agenda. With the WIPO-commissioned Study on Misappropriation of Signs, the international debate on how to preserve a rich and accessible public domain has reached trademark law. This debate raises fundamental questions about the relationship between the rationales of trademark protection and the need to safeguard the public domain. How should the public domain be defined in relation to the trademark system? Which preservation tools are available under trademark law? What lessons can be learned from the way in which these tools are used in different countries? How can these experiences be translated into best practices that can serve as guidelines for countries seeking to support a robust public domain?
Against this background, the present article explores the notion of the public domain with regard to trademark law. It will be argued that a broad conception of the public domain is appropriate — a conception which, besides signs unencumbered by trademark rights, includes user freedoms resulting from a limited scope of protection. By surveying the universal rules laid down in international treaties, four categories of preservation tools can be distinguished on this basis: a general bar to trademark protection, the exclusion based on a sign’s lack of distinctiveness, inherent limits of exclusive rights and the adoption of exceptions. After this conceptual clarification, the use of the identified preservation mechanisms in EU trademark law will be analyzed to illustrate the role that the different tools can play in safeguarding the public domain. The EU is an interesting example because it reflects a regional rather than national approach that includes countries from both the continental-European and the Anglo-American tradition. The analysis gives rise to the question whether the EU approach can serve as a model for other regions.

Mutual Recognition of Drug Approvals

'The Case for Mutual Recognition of Drug Approvals' by Bacchus Barua and Nadeem Esmail in the right wing Fraser Institute's (2013) Studies in Health Policy argues
Modern medicines improve both health outcomes and quality of life for those stricken with illness, and their ability to do so continues to improve and advance over time. Every day, researchers and scientists work to come up with new and innovative ways to treat illnesses, mitigate suffering, and prolong life while research-based pharmaceutical companies invest in the development and testing necessary to bring these innovations to market.
The medicines that are available today are not only able to treat illnesses that could not previously be treated, but also represent a substitution for older, less efficient, and less effective methods of treatment. Even in cases where medicines may not have a different impact therapeutically, they can expand access to better health through reductions in adverse events and reactions, and may work better for some parts of the population poorly served by previous advances.
However, access to these newer (and superior) pharmaceuticals is not equal across developed countries. This is, in part, the result of governmental regulations and approvals. Critically, new medicines are only accessible by the public after they have been granted regulatory clearance by the host jurisdiction’s responsible body such as Health Canada, the United States Food and Drug Administration (FDA), and the European Medicines Agency (EMA). The efficiency with which these agencies approve drugs and the numbers of drugs ultimately approved varies considerably between these regulatory authorities.
While the potential for harm that accompanies any new medicine on the market may provide some justification for regulatory approval in general, the question of why such approval is duplicated in one jurisdiction (e.g., Canada) while it is being undertaken in another with comparable standards (e.g., Europe) remains. Indeed, to the extent submissions to these agencies and their efficiency in approving them vary, such duplication of effort reinforces the unfortunate reality that drugs are available to patients in different countries, at different points in time.
This study aims to measure the difference in access to new medicines that results from duplication of effort in Canada. By compiling a list of new drugs approved in Canada between 2005-2011/12 (Health Canada moved from calendar-year to fiscal-year reporting in 2011/12), and comparing the corresponding approval dates with those in the United States and the European Union, we seek to provide Canadians an estimate of how much sooner these new drugs would have been available to them in the absence of what might be considered an unnecessary regulatory hurdle imposed by Health Canada.
The authors comment that
Past studies have shown that Health Canada both takes longer to approve medicines, and approves fewer medicines than its American and European counterparts (Downing et al., 2012; Rawson, 2013; Barua and Esmail, 2013). However, these studies do not necessarily provide a true representation of differences regarding when drugs are eligible for sale in the three jurisdictions. Critically, a delay in accessing new drugs in one country in comparison with another can have two sources: a difference in approval time (efficiency) and a difference in when the drug was submitted for approval in the first place.
In order to better capture the delay in timely access to medicines, this study undertakes a drug-by-drug comparison for dates of approval granted by Health Canada, the FDA, and the EMA (including both the centralized; approval procedure and the mutual recognition approach). We seek to measure the differences between when populations served by these agencies were ultimately granted access to new pharmaceutical products and therapies. We find considerable delays in access to new medicines in Canada in comparison with access in the United States and Europe.
Of the 149 drugs approved in both Canada and the United States between 2005 and 2011/12, approval was granted a median 350 days earlier in the United States. Of the 146 drugs approved in both Canada and Europe, approval was granted a median 263 days earlier in Europe. The more important factor in explaining these delays in access to medicines in Canada is differences in the dates on which manufacturers submitted new drugs to agencies for regulatory approval.
If we constrain our analysis to compare drugs for which submission dates are available, the average 682-day difference in approval dates between Canada and the United States (for 120 drugs) consists of an average 635-day difference between submission dates, and an average 48-day difference in efficiency (figure E1). Similarly, the average 417-day difference in approval dates between Canada and Europe (for 131 drugs) consists of an average 315- day difference between submission dates, and an average 102-day difference in efficiency (figure E1).
Several reasons for this difference in submission may exist, including differences in market-investment attractiveness due to prevalent intellectual property protection regimes, the size of the potential market of consumers, regulatory controls on drug pricing, and the reimbursement policies practiced by public and private insurers. Another reason, more directly related to regulatory activities, is the extra financial burden incurred through user fees and the costs associated with creating a submission for a particular agency. Relevant considerations for Canada include the fact that the Canadian market is a fraction of the size of markets in the United States and the European Union. Further, the Canadian market is characterized by both long delays for coverage by provincial drug plans and a high rate of refusal to cover, as well as relatively weaker intellectual property protections (Rovere and Skinner, 2012; Esmail, 2013). Any of these may provide incentives to delay or forego submission to Health Canada altogether.
One way to reduce the loss of potential benefits from access to newer medicines, at least for Canadians, would be to better recognize that the approach taken by Health Canada is unnecessary and perhaps harmful. Importantly, Health Canada’s approval process largely duplicates what is already being done (much earlier and more efficiently) in the US and Europe, which means the benefits of this process for Canadians are limited at best. Health Canada’s approach to scientific review of new drugs is not considerably different from those in the US and Europe (Rawson, 2013; Rawson, 2003; Paul, 2001). Critically, Canadian laws and regulations regarding prescription drugs have generally followed those of the United States (Graham, 2005). Further, there are many similarities between the drug approval processes in Canada, the US, and the EU. Paul (2001) notes that the FDA’s “procedures and requirements are the framework for those of the EU and Canada” (2001:233).
All of this means that Canadians are denied the health benefits of many medicines for months, if not years, waiting for their government to duplicate approvals already provided in other jurisdictions. Given the low and similar rate of withdrawal of drugs (at least between the US and Canada), it can be said that this delay is denying Canadians access to many medicines that will ultimately be found sufficiently safe and effective to not be withdrawn from the marketplace. Canadians also, potentially as a result of the costs of entering a small and highly regulated market, receive access to fewer medicines in total than their counterparts in other developed nations, leaving Canadians with fewer therapeutic options and potentially worse health outcomes. Beyond these foregone benefits lie the costs to taxpayers and drug manufacturers of funding this duplicative process.
This provides a strong reason to seriously consider whether or not Health Canada’s mandatory approval process is in fact beneficial to Canadians, and to consider replacing Health Canada’s mandatory approvals with a mutual recognition process. Under such an approach, FDA or EMA approval decisions could be considered sufficient for market access in Canada. The clear benefits of mutual recognition would be a reduction in costs of entry to the Canadian marketplace and a significant reduction in the delay Canadians endure to access new drugs.
This process can be implemented while maintaining Health Canada’s ability to provide safety warnings and to require withdrawal of a drug from the Canadian marketplace, while maintaining Health Canada’s approval process on a non-mandatory basis. Specifically, while FDA and EMA approvals could be accepted as sufficient for market entry, they could also be subject to a labeling requirement stating the approval was through a mutual recognition process with the FDA and EMA and that Health Canada had not approved that particular medicine. This would give Canadians the opportunity to decide for themselves if they felt Health Canada’s approval process provided additional safety or protection from the risks associated with a new drug in addition to the processes undertaken in either the US or Europe. Such reform facilitates earlier access for Canadian patients willing to take on a higher level of risk for the potential benefit of earlier relief, while more risk-averse patients would be able to wait for Canada-specific approval voluntarily.
A mutual recognition process may provide an opportunity for Health Canada to shift away from performing a largely unnecessary function that may be subject to negative marginal returns, to one whose importance is being increasingly identified. Importantly, the resources saved through the mutual-recognition approach could be in part redirected towards more active post-market surveillance of drug safety and risk. These resources might also be refocused towards funding and supporting better communication of the risks associated with certain drugs so that physicians and patients can make more informed decisions about their use of drugs and about the risk/benefit tradeoff they are facing when choosing a particular treatment option. With increasingly complex products being approved, such efforts would leave more control of the risk/benefit tradeoff in the hands of those directly exposed to it rather than to risk-averse regulators who have strong incentives to minimize risk at the expense of potential benefit to patients.

Affinity and embezzlement

'HJ (Iran) and Another - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain' by Janna Maria Wessels in (2012) 24(4) International Journal of Refugee Law 815 comments that
The case HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 was celebrated as a ‘fundamental shift in asylum law’. In this decision, the UK Supreme Court rejects the ‘reasonably tolerable test’ that had been applied in the case of the gay men HJ, a 40-year-old Iranian, and HT, a 36-year-old citizen of Cameroon. On the basis that the claimants could be reasonably expected to tolerate being discreet about their sexual identity in order to avoid persecution, their applications had been unsuccessful. This ‘reasonably tolerable test’, which was fairly well established in case law, was much contested and its rejection was overdue. Yet in their decision, the Justices not only reject this old test, they go a step further and formulate a new approach to be followed by tribunals in asylum claims on grounds of sexual orientation.
This article argues that this new approach fails to discard ‘discretion’ as a concept in asylum cases as a whole, contrary to the submissions of the intervening parties in the case, namely, UNHCR and the Equality and Human Rights Commission. The new test continues to be constructed on ‘discretion logic’ – which is not tenable for a series of reasons. First, the test creates two distinguishable categories, openly demonstrated sexuality and concealed sexuality. Secondly, it assumes that this distinction and the underlying choice are relevant for assessing whether the applicant is at risk of persecution. Finally, the case relied heavily on the subjective element of assessing the ‘fear’ of persecution, which leads to a stricter test than necessary. The assessment of the existence of a well-founded fear of persecution in LGBT cases should instead be made without reference to whether or not the applicants would conceal their sexual orientation.
Last year I noted the exposure of Hohepa Morehu-Barlow, the Queensland Health manager who snaffled a mere $16.69 million between 2007 and 2011, an appropriation disguised by claims that he was a Taghitian or Maori prince. In March this year he was sentenced to 14 years' imprisonment after pleading guilty to eight offences that including aggravated fraud and forgery.

A report by the Queensland Crime and Misconduct Commission has now attributed the fraud to
  • low-levels of compliance with existing policy and procedures by other staff;
  • failures of financial management and accountability;
  • failures in supervision and management;
  • low awareness of the risk of fraud among staff at all levels; and
  • failure to properly investigate information provided in audits and complaints and evaluate that information in a wider context.
Fraud, financial management and accountability in the Queensland public sector: An examination of how a $16.69 million fraud was committed on Queensland Health states
Queensland Health (QHealth) identified a fraudulent transaction of $11 million of public funds paid to Healthy Initiatives and Choices (HIC), a trading name registered to one of its own employees, Hohepa Morehu-Barlow (Barlow). Further investigation identified this transaction to be the latest in a series of 65 fraudulent transactions totalling $16.69 million and committed over a four-year period commencing October 2007. 
Barlow’s fraud may be the single largest fraud ever committed in the Queensland public sector. The real cost to the State would be even greater, not only in the initial loss of millions of dollars of public money, but also in the cost of the multiple agencies required for follow-up investigations and recovery action, and in the damage to public confidence in financial management across the public sector. Given the enormity of the fraud perpetrated against QHealth, two key questions arise: • How equipped were QHealth’s management systems and internal controls to handle the risk posed by an employee intent on committing fraud? • What can other public sector agencies learn from the QHealth experience? 
This report gives an account of the fraud committed by Barlow over those four years. It provides a narrative of the main events surrounding Barlow’s fraudulent activities between September 2007 and December 2011, and describes the impact of that discovery. It is directed to Parliament and the general Queensland community and, most of all, to senior managers and other employees in the Queensland public service. It aims to: 1. highlight public servants’ responsibilities — and accountability — as stewards of public money 2. raise their awareness of the potential for fraud in the workplace, of their own responsibilities to prevent it and, finally, of the high cost of managerial inaction. 
For that reason, the report includes a summary of the lessons to be learned from the QHealth experience — the factors that allowed the fraud to be committed and remain undetected for so long, as well as recommendations to managers and staff of public agencies.
The report notes that
After the criminal proceedings involving Barlow were finalised, the CMC sought formal orders to have the restrained assets returned to the State, and on 13 June 2013 a forfeiture order of approximately $11.88 million was granted by the Supreme Court in Brisbane. 
The Supreme Court also granted a proceeds assessment order of $20,058,389,8 representing the total benefit derived from Barlow’s fraud. The order offset the value of the forfeited assets against the value of the proceeds assessment order. This returns all possible assets to the State, while recognising the full cost of Barlow’s fraud.
Vetting problems were evident. The CMC indicates that
Joseph Hikairo Barlow was born in New Zealand on 13 February 1975. The curriculum vitae Barlow provided to QHealth stated that he received a number of tertiary qualifications and academic awards in New Zealand between 1995 and 1999. However, inquiries conducted by the QPS confirm that Barlow does not, in fact, possess any tertiary-level qualifications. A Transcript of Academic Record from Victoria University shows that in 1996 Barlow commenced, but failed to complete, a Bachelor of Commerce and Administration and a Graduate Diploma in Professional Accounting. There is no evidence he received any academic awards. 
On 4 August 1999, Barlow was convicted and sentenced in the Wellington District Court for “theft as a servant” and “using a document”. The offences occurred while Barlow was employed in the New Zealand Internal Revenue Department. 
On 10 May 2001, Barlow changed his name by deed poll to Hohepa Hikairo Morehu-Barlow, and on 31 March 2003 he left New Zealand and moved to Australia. In July and August 2003, Barlow was recorded as being wanted in New Zealand for questioning in relation to a fraud committed while employed as a private contractor to a steering group funded by a New Zealand Government department, and in relation to another fraud committed after his employment with a private business was terminated due to theft.
Barlow’s initial employment with Queensland Health Barlow was as contractor in a position obtained through an employment agency. In 2005 he accepted a temporary position as an Assistant Finance Officer. A former colleague said that when Barlow started working for QHealth in 2004 his lifestyle was beyond the means of his QHealth wage. He said Barlow told QHealth employees that he was Tahitian royalty and made it known that he had a trust fund but needed to have a job to access it….
On 29 August 2007, QHealth’s ESU received a complaint alleging that Barlow (under the name Hohepa Morehu-Barlow) had misused an official QHealth vehicle. It was alleged Barlow did not return the vehicle on the date specified in the log book and used the vehicle for an unauthorised purpose. The complaint arose out of a speeding fine. According to the complaints management arrangement in place at the time between QHealth and the CMC, QHealth reported the complaint to the CMC on 4 October as a matter of routine. The matter was referred to QHealth to deal with, and the CMC was to be advised of the outcome of the matter once it was finalised. There was nothing in the first complaint against Barlow that would have identified him as a potentially serious fraud risk. However, due to an extensive delay in QHealth’s handling of this complaint, it was not until December 2010 that Barlow received a letter from an Acting Deputy Director-General (DDG) asking him to explain the allegation. ... 
From September 2007, Barlow began to perform higher duties as an AO7 in the position of Principal Finance Officer (PFO).17 In this position, Barlow gained reporting and monitoring responsibility for QHealth grants cost centres, including the Minister’s Grants in Aid (MGIA) and Non Government Organisation Support (NGOS) cost centres. On 3 October 2007, 12 days after commencing as the PFO, Barlow established Muse Business Inspiration (The Muse) as a QHealth vendor. The Muse was a business registered to Barlow’s neighbours, established to work in the areas of strategy, communications, policy and advocacy, and dealing mainly with not-for-profit organisations and small businesses. Barlow signed the vendor set-up form for The Muse as authorising officer. No vendor address was included in the form and no Australian Business Number (ABN) search was attached to the form. The following day, Barlow authorised the first fraudulent payment of $2200.6120 to The Muse using a GPV. He authorised subsequent fraudulent payments to The Muse on 29 October ($2200.61) and 10 December ($6601.80), bringing the total of money defrauded from QHealth at the end of 2007 to $11,003.02.
The bells weren't ringing, despite  complaints about Barlow’s conduct and work performance
Relatively early in his employment, staff began voicing concerns about Barlow’s poor attendance and work performance. This would be a recurring pattern throughout his time at QHealth.
• Finance Officer 3 said Barlow was never in the workplace before 10 am and was a very inconsistent worker. He would disappear for lunch breaks for hours on end and didn’t complete timesheets. Often he would not turn up for meetings. He also generated more workload for other staff members as he didn’t respond to requests. Finance Officer 3 said he mentioned his concerns to Barlow’s supervisor, Manager 1, on a number of occasions  and was aware other staff had complained about Barlow’s conduct. 
• An officer who worked with Barlow in 2007 said Barlow was very difficult to deal with: ... because of his spotty attendance at work and he wasn’t very responsive ... For a whole year that I was involved with budgets, we had many meetings with Ho ... He would say he would sort it out, but wouldn’t and in the end we would go through the same thing again and it was never sorted ... 
• Finance Officer 2 said Barlow bullied him and other staff and recalled a number of staff members crying because of the way Barlow treated them. He said Barlow did not complete timesheets, regularly started work late and sometimes left early, and took a lot of leave without pay in block periods; however, he appeared to be on top of his work requirements. 
• Sometime in 2008, Manager 1 asked an officer to reconcile a budget previously managed by Barlow. The officer identified that there were no controls over the payments being made and told Manager 1 that “budgeting wasn’t Barlow’s strong point”. Once he had reconciled the budget, the officer said Barlow bought him a new iPhone to thank him for not making an official complaint about Barlow’s mismanagement of the budget. However, he had refused to accept the gift. The officer also said Barlow regularly arrived at work between 12 and 3 pm, and treated junior staff with contempt — for example, telling them to pick up his dry cleaning and get him coffee. The officer reported both the gift and his concerns about Barlow’s conduct to Manager 1 and another senior officer. He said Barlow’s supervisors tried to deal with his conduct, but Barlow would just take leave to avoid the issue. Manager 1 did not remember any complaints about Barlow’s ability to do his job, but recalled speaking to Barlow twice about his unexplained absences. 
After Barlow was chastised, his attendance improved for a period of time but then deteriorated. When Manager 1 again raised the issue, Barlow explained that he had a serious illness and was having some difficulty coping with the resulting mental and physical demands. Manager 1 said he gave Barlow considerable latitude with leave because of his alleged illness. The considerable extent of Barlow’s leave can be seen in QHealth records: during the period from December 2005 to July 2009, in addition to over 16 weeks of recreation leave, he took over 11 weeks of “other” leave.
Despite the recurring performance and conduct issues, Barlow was permanently appointed as PFO in May 2009. Throughout 2008, he continued to engage in fraudulent behaviour. For example he signed a letter to Queensland Transport in relation to demerit points accumulated by a friend and referred to himself as a “solicitor” and “legal counsel” and in a letter to the Fortitude Valley Police Station  referred to himself as a solicitor for the state government. For his final payment to The Muse, Barlow attached supporting documentation which included an unsigned and undated Ministerial letter, purportedly from the then Minister for Health Barlow acknowledged that he exploited the trust of staff he asked to sign documentation, saying
they all knew me as ... the Prince ... so what would I want with a lousy $200,000 dollars ... So for them you know, maybe trust was a big issue.
Fraudulent payments for “consultancy services”  were paid into Barlow’s neighbours’ joint bank account, with electronic  transfer to Barlow’s bank account. Barlow’s neighbour indicated he never gave Barlow access to or control of this account but said Barlow had the opportunity to obtain the internet banking details when he looked after their apartment in 2006.

Barlow prepared and authorised the vendor set-up process to establish “Healthy Initiatives and Choices” (HIC) as a QHealth vendor. HIC was a trading name registered to Barlow as the individual operator and owner, and was registered to his home address. The ABN was registered two days after the date of the HIC invoice attached to the vendor set-up form.  The QPS established that Barlow opened the bank accounts associated with HIC and had sole access to them. When interviewed by CMC officers, Barlow confirmed he established HIC for the sole purpose of perpetrating frauds against QHealth.
When asked what he considered to be the likelihood of being caught submitting the vendor set-up form for HIC, Barlow said: ... a simple ABN search would have stopped this in the beginning and later, ... it could of easily been found out and stopped had the Finance Business Centre done its due diligence. 
Asked what would have happened if the checks had been done, Barlow said “I would of had to deal with it but it was a gamble”. He said that he thought there was a very good chance the form wasn’t going to get through, but he was prepared to take that risk.
In June 2009 Barlow authorised another two fraudulent payments to HIC, bringing his total fraudulent gains in the first half of 2009 to $482,494. In February he had hosted and paid for his birthday party at a Fortitude Valley bar, which was attended by some QHealth staff and was reported to have cost about $130,000. In  August the CMC received an anonymous email complaint alleging that Barlow (under the name Joseph Hikairo Barlow) was defrauding QHealth and was due to leave Australia on 24 August 2010 “to start a new life of luxury” in Paris. The complaint also listed a number of his aliases.
Based on set criteria established by the CMC, the CMC officer responsible for handling the complaint determined: • The complaint did not meet the criteria of a Category 1 (the most serious) complaint because it did not specify that a substantial amount of money was being defrauded, did not allege that the fraud was being committed by a very senior officer, and did not indicate that the fraud was systemic. • The matter did not involve a public interest disclosure (PID), as set out by the Public Interest Disclosure Act 2010. PIDs about official misconduct can only be made by public sector employees and there was no information to indicate that that was the case. Because the complaint was made anonymously, there was no way to contact the complainant and seek further detail about the allegations. 
Criminal history checks were not done as the complaint concerned an agency whose Ethical Standards Unit included a seconded police officer who could do them. Barlow’s complaints history was not checked, as this was the responsibility of QHealth under the complaints management process in place at the time. 
The CMC officer did not respond in a timely way to the information in the email stating Barlow’s proposed date of departure from Australia. However, that part of the anonymous complaint was not accurate, as Barlow did not in fact leave the country for Paris on that date. As a result, the complaint was not sent to QHealth until the day that Barlow was allegedly intending to leave the country. …
Barlow’s conduct and performance continued to be erratic -
• An officer who worked with Barlow said he “was pretty much always late for work. I don’t think he would have got to work any day before 10.00 am.” 
• A senior officer in Barlow’s previous work unit said he complained to Manager 3 about Barlow’s poor work performance: that he failed to complete normal processes, hardly ever showed up for work, and failed to deliver on what he promised to do.  The senior officer also spoke to Manager 2, Barlow’s direct supervisor in Finance, about Barlow’s poor work performance. The senior officer said he believed that Barlow could not fulfil the functions of the PFO position and thought Barlow provided poor service to his unit.   Manager 2 said the senior officer did not raise any issues with him about Barlow’s work performance. 
• An officer who worked with Barlow said: I used to think it was strange that Ho used to come to work at about eleven o’clock then leave about two and worked so little. He then got promoted to manager of governance. He also used to come into work later after we had all left. He would sign in using Facebook to let everyone know he was working late. 
• Finance Officer 3 was asked to fix some budget reporting problems, which were Barlow’s responsibility. He discovered the budget reports were being “flatlined” (no variance was recorded) and did not reflect the true state of the budgets. Finance Officer 3 said he spoke to Barlow “lots of times” while he was trying to fix the budget reports, and Barlow was “not impressed” with his inquiries. 
• Manager 2 said he had concerns with Barlow’s conduct including timeliness of reports, non-completion of timesheets, and hours worked. He brought these issues to Manager 3’s attention and he assumed that Manager 3 raised the issues with Manager 4. 
• Manager 3 was aware of various issues related to Barlow’s conduct, such as working irregular hours, providing questionable reasons for his sick leave, and not providing payroll forms (such as sick leave and annual leave) despite constant requests. 
• Manager 3 said he often spoke to Manager 4 about his concerns with Barlow, but Manager 4’s response was “well that’s Ho”. He believed Manager 4 defended Barlow and had faith in his abilities.  During the period from August 2009 to December 2010, Barlow took over four weeks recreation leave and over ten weeks of “other” leave. During that period, he was absent from work 23 per cent of the time. Manager 3 said he attempted to address Barlow’s attendance issues.  According to Manager 3, he met with Manager 4 sometime in late 2010 to discuss his concerns about Barlow’s performance, saying he thought he needed to put Barlow on a performance management plan. Manager 3 said Manager 4 said he was going to put Barlow into an AO8 position in Governance. According to Manager 3, Manager 4 said “leave him to me, he’s not going to be a problem anymore, we are going to put him in the Governance role”.  Although Manager 4 says he does not recall this conversation, this move did occur.
And on it goes.

The report notes that
The CMC located an unsigned personal character reference for presentation to an unspecified court, dated 11 January 2011, in which Barlow stated he was a qualified solicitor admitted to the Supreme Court of Queensland and was the “1st son of the Royal Family of Tahiti”. The CMC also located a personal character reference in Barlow’s name for presentation to the Presiding Magistrate, Southport Magistrates Court in relation to a “family friend”. The document was written on official QHealth letterhead and included the qualification “LLB”  in his signature block.