25 October 2013


And from Mr Kant
Enlightenment is man's emergence from his self-imposed guardianship. Guardianship is the inability to use one's own understanding without another's guidance. This guardianship is self-imposed if its cause lies not in lack of understanding but in indecision and lack of courage to use one's own mind without another's guidance. Sapere aude. Dare to know! "Have the courage to use your own understanding," is therefore the motto of the enlightenment.
Laziness and cowardice are the reasons why such a large part of mankind gladly remain minors all their lives, long after nature has freed them from external guidance. They are the reasons why it is so easy for others to set themselves up as guardians. It is so comfortable to be a minor. If I have a book that thinks for me, a cleric who acts as my conscience, a physician who prescribes my diet, and so on - then I have no need to exert myself. I have no need to think, if only I can pay; others will take care of that disagreeable business for me. Those guardians who have kindly taken supervision upon themselves see to it that the overwhelming majority of mankind - among them the entire fair sex - should consider the step to maturity, not only as hard, but as extremely dangerous. First, these guardians make their domestic cattle stupid and carefully prevent the docile creatures from taking a single step without the leading-strings to which they have fastened them. Then they show them the danger that would threaten them if they should try to walk by themselves. Now this danger is really not very great; after stumbling a few times they would, at last, learn to walk. However, examples of such failures intimidate and generally discourage all further attempts.
Thus it is very difficult for the individual to work himself out of the guardianship which has become almost second nature to him. He has even grown to like it, and is at first really incapable of using his own understanding because he has never been permitted to try it. Dogmas and formulas, these mechanical tools designed for reasonable use - or rather abuse - of his natural gifts, are the fetters of an everlasting guardianship. The man who casts them off would make an uncertain leap over the narrowest ditch, because he is not used to such free movement. That is why there are only a few men who walk firmly, and who have emerged from guardianship by cultivating their own minds.
It is more nearly possible, however, for the public to enlighten itself; indeed, if it is only given freedom, enlightenment is almost inevitable. There will always be a few independent thinkers, even among the self-appointed guardians of the multitude. Once such men have thrown off the yoke of guardianship, they will spread about them the spirit of a reasonable appreciation of man's value and of his duty to think for himself. It is especially to be noted that the public which was earlier brought under the yoke by these men afterwards forces these very guardians to remain in submission, if it is so incited by some of its guardians who are themselves incapable of any enlightenment. That shows how pernicious it is to implant prejudices: they will eventually revenge themselves upon their authors or their authors' descendants. Therefore, a public can achieve enlightenment only slowly. A revolution may bring about the end of a personal despotism or of avaricious tyrannical oppression, but never a true reform of modes of thought. New prejudices will serve, in place of the old, as guide lines for the unthinking multitude.
This enlightenment requires nothing but freedom - and the most innocent of all that may be called "freedom": freedom to make public use of one's reason in all matters. Now I hear the cry from all sides: "Do not argue!" The Officer says: "Do not argue - drill!" The Tax Collector: "Do not argue - pay!" The Cleric: "Do not argue - believe!" Only one prince in the world says: "Argue as much as you please, but obey!" We find restrictions on freedom everywhere. But which restriction is harmful to enlightenment? Which restriction is innocent, and which advances enlightenment? I reply: the public use of one's reason must be free at all times, and this alone can bring enlightenment to mankind.
On the other hand, the private use of reason may frequently be narrowly restricted without especially hindering the progress of enlightenment. By "public use of one's reason" I mean that use which a man, as scholar, makes of it before the reading public. I call "private use" that use which a man makes of his reason in a civic post that has been entrusted to him. In some affairs affecting the interest of the community a certain& mechanism is necessary in which some members of the community remain passive. This creates an artificial unanimity which will serve the fulfillment of public objectives, or at least keep these objectives from being destroyed. Here arguing is not permitted: one must obey. Insofar as a part of this machine considers himself at the same time a member of a universal community - a world society of citizens - (let us say that he thinks of himself as a scholar rationally addressing his public through his writings) he may indeed argue, and the affairs with which he is associated in part as a passive member will not suffer. Thus it would be very unfortunate if an officer on duty and under orders from his superiors should want to criticize the appropriateness or utility of his orders. He must obey. But as a scholar he could not rightfully be prevented from taking notice of the mistakes in the military service and from submitting his views to his public for its judgment. The citizen cannot refuse to pay the taxes levied upon him; indeed, impertinent censure of such taxes could be punished as a scandal that might cause general disobedience. Nevertheless, this man does not violate the duties of a citizen if, as a scholar, he publicly expresses his objections to the impropriety or possible injustice of such levies. A cleric, too, is bound to preach to his congregation in accord with the doctrines of the church which he serves, for he was ordained on that condition. But as a scholar he has full freedom, indeed the obligation, to communicate to his public all his carefully examined and constructive thoughts concerning errors in that doctrine and his proposals concerning improvement of religious dogma and church institutions. This is nothing that could burden his conscience. For what he teaches in pursuance of his office as representative of the church, he represents as something which he is not free to teach as he sees it. He speaks as one who is employed to speak in the name and under the orders of another. He will say: "Our church teaches this or that; these are the proofs which it employs." Thus he will benefit his congregation as much as possible by presenting doctrines to which he may not subscribe with full conviction. He can commit himself to teach them because it is not completely impossible that they may contain hidden truth. In any event, he has found nothing in the doctrines that contradicts the heart of religion. For if he believed that such contradictions existed he would not be able to administer his office with a clear conscience. He would have to resign it. Therefore the use which a scholar makes of his reason before the congregation that employs him is only a private use, for no matter how sizable, this is only a domestic audience. In view of this he, as preacher, is not free and ought not to be free, since he is carrying out the orders of others. On the other hand, as the scholar who speaks to his own public (the world) through his writings, the cleric in the public use of his reason enjoys unlimited freedom to use his own reason and to speak for himself. That the spiritual guardians of the people should themselves be treated as minors is an absurdity which would result in perpetuating absurdities.
But should a society of clerics, perhaps a church council or a venerable classis (as they call themselves among the Dutch), be justified in obligating itself by oath to a certain unchangeable doctrine in order to enjoy perpetual guardianship over each of its numbers and through them over the people as a whole, and even to make it eternal? I answer that this is altogether impossible. Such contract, made to shut off all further enlightenment from the human race, is absolutely null and void even if confirmed by the supreme power, by parliaments, and by the most ceremonious of peace treaties. An age cannot bind itself and ordain to put the succeeding epoch into such a condition that it cannot extend its (at best very occasional) knowledge, purging themselves of errors, and generally progressing in enlightenment. That would be a crime against human nature, the proper destination of which lies precisely in this progress and the descendants would be fully justified in rejecting those decrees as having been made in an unwarranted and malicious manner. Therefore, succeeding ages are fully entitled to repudiate such decisions as unauthorized and outrageous. The touchstone of all those decisions that may be made into law for a people lies in this question: Could a people impose such a law upon itself? Now it might be possible to introduce a certain order for a definite short period of time in expectation of better order. But, while this provisional order continues, each citizen (above all, each pastor acting as a scholar) should be left free to publish his criticisms of the faults of existing institutions. This should continue until public understanding of these matters has gone so far that, by uniting the voices of many (although not necessarily all) scholars, reform proposals could be brought before the sovereign to protect those congregations which had decided according to their best lights upon an altered religious order, without, however, hindering those who want to remain true to the old institutions. But to agree to a perpetual religious constitution which is not publicly questioned by anyone would be, as it were, to annihilate a period of time in the progress of man's improvement. This must be absolutely forbidden.
A man may postpone his own enlightenment, but only for a limited period of time. And to give up enlightenment altogether, either for oneself or one's descendants, is to violate and to trample upon the sacred rights of man. What a people may not decide for itself may even less be decided for it by a monarch, for his reputation as a ruler consists precisely in the way in which he unites the will of the whole people within his own. If he only sees to it that all true or supposed  improvement remains in step with the civic order, he can for the rest leave his subjects alone to do what they find necessary for the salvation of their souls. Salvation is none of his business; it is his business to prevent one man from forcibly keeping another from determining and promoting his salvation to the best of his ability. Indeed, it would be prejudicial to his majesty if he meddled in these matters and supervised the writings in which his subjects seek to bring their [religious] views into the open, even when he does this from his own highest insight, because then he exposes himself to the reproach: Caesar non est supra grammaticos. It is worse when he debases his sovereign power so far as to support the spiritual despotism of a few tyrants in his state over the rest of his subjects.
When we ask, Are we now living in an enlightened age? the answer is, No, but we live in an age of enlightenment. As matters now stand it is still far from true that men are already capable of using their own reason in religious matters confidently and correctly without external guidance. Still, we have some obvious indications that the field of working toward the goal [of religious truth] is now opened. What is more, the hindrances against general enlightenment or the emergence from self-imposed guardianship are gradually diminishing. In this respect this is the age of the enlightenment and the century of Frederick.
A prince ought not to deem it beneath his dignity to state that he considers it his duty not to dictate anything to his subjects in religious matters, but to leave them complete freedom. If he repudiates the arrogant word "tolerant", he is himself enlightened; he deserves to be praised by a grateful world and posterity as that man who was the first to liberate mankind from dependence, at least on the government, and let everybody use his own reason in matters of conscience. Under his reign, honorable clerics, acting as scholars and regardless of the duties of their office, can freely and openly publish their ideas to the world for inspection, although they deviate here and there from accepted doctrine. This is even more true of every person not restrained by any oath of office. This spirit of freedom is spreading beyond this land] even where it has to struggle against the external hindrances established by a government that fails to grasp its true interest. This land is a shining example that freedom need not cause the least worry concerning public order or the unity of the community. When one does not deliberately attempt to keep men in barbarism, they will gradually work out of that condition by themselves.
I have emphasized the main point of the enlightenment - man's emergence from his self-imposed guardianship - primarily in religious matters, because our rulers have no interest in playing the guardian to their subjects in the arts and sciences. Above all, guardianship in religion is not only the most harmful but the most dishonorable. But the disposition of a sovereign ruler who favors freedom in the arts and sciences goes even further: he knows that there is no danger in permitting his subjects to make public use of their reason and to publish their ideas concerning a better constitution, as well as candid criticism of existing basic laws. Of this we have a shining example wherein no monarch is superior to him we honour.
But only the man who is himself enlightened, who is not afraid of shadows, and who commands at the same time a well disciplined and numerous army as guarantor of public peace - only he can say what a republic cannot dare to say: "Argue as much as you like, and about what you like, but obey!" Thus we observe here as elsewhere in human affairs, in which almost everything is paradoxical, a surprising and unexpected course of events: a large degree of civic freedom appears to be of advantage to the intellectual freedom of the people, yet at the same time it establishes insurmountable barriers. A lesser degree of civic freedom, however, creates room to let that free spirit expand to the limits of its capacity. Nature, then, has carefully cultivated the seed within the hard core - namely the urge for and the vocation of free thought. And this free thought gradually reacts back on the modes of thought of the people, and men become more and more capable of acting in freedom. At last free thought acts even on the fundamentals of government and the state finds it agreeable to treat man, who is now more than a machine, in accord with his dignity.


The Victorian Government has released a 220 page consultation paper [PDF] regarding its Review of Sexual Offences.

The paper states that
Many of Victoria’s sexual offence laws are complex, inconsistent and unclear. Nowhere is this problem worse than with the offence of rape. These problems make it extremely difficult, if not impossible, for a judge to explain the law to a jury in a clear and intelligible manner and for the jury to understand and apply the law to the facts in the case. These problems have resulted in numerous appeals, convictions being set aside and retrials being ordered, most notably in Worsnop v The Queen (2010) 28 VR 187 and Getachew v The Queen [2011] VSCA 164.
There have been many calls for significant reform of Victoria’s rape laws since these decisions. These calls have emanated from the judiciary, lawyers, academics, victim/survivor support groups and the media. The Attorney-General has publicly committed to reforming sexual offence laws and jury directions in order to address the current complexity, inconsistency and uncertainty. Victoria’s sexual offence laws are also failing to respond adequately to the problem of persistent sexual abuse of a child. The current approach does not work effectively for child victims/survivors who, because of the repeated and systematic nature of the offending against them, are unable to distinguish between the different instances of abuse. A fresh approach to this problem is needed. While rape laws have been frequently amended in the last 20 years, other sexual offences have not received the same attention. As a consequence, some have become outdated, inconsistent and unclear in their scope, structure and terminology. Other offences fail to recognise that sexual offences can be committed in new ways through advances in technology.
This review examines rape and other sexual offences in the Crimes Act 1958, focussing not only on policy issues, but also on the structure and components of each offence. This practical focus is essential for effective reform. Our aim is to make sexual offences as clear, simple, consistent and effective as possible. Simpler and clearer offences will assist judges to direct juries, and juries to understand and apply the law. This will help to reduce successful appeals against conviction for a sexual offence. A better functioning criminal justice system will help to improve the experience of victims/survivors who report a sexual offence to the police.
The County Court is Victoria’s principal trial court. Almost 50% of all trials that go to verdict in the County Court are sexual offence trials. In 2002/03 only 36% of all trials were sexual offence trials. Over the last 10 years there has been an 81% increase in the number of sexual offence trials. This reflects an increase in the proportion of sexual offence cases as well as an increase in the overall number of trials conducted. Better laws will deliver substantive justice in individual cases and, in combination with other proposed reforms to jury directions, will assist in reducing delay. This paper contains 49 proposals for, and 10 questions about, reform of Victoria’s most important sexual offences and procedure. The paper also contains a number of options and questions about possible reforms. The Department of Justice seeks feedback on each of the proposals, options and questions in this paper in order to provide advice to the government on how best to reform sexual offences.
The paper goes on to address particular issues, as follows -  
Rape and compelling sexual penetration
The existing rape laws are highly complex and difficult to explain to juries. As a result, they have been the subject of numerous appeals and retrials, which are extremely stressful for victims/survivors, create delays in the criminal justice system and are costly. Many rape convictions have been set aside on appeal; the complexity of the law is the principal reason for the appeals succeeding.
Many of the problems stem from the fault element in relation to the complainant not consenting. For the offence of rape, the principal fault elements refer to the state of mind of the accused: was the accused aware that the complainant was not consenting or might not be consenting? However, if the accused argues that he or she did not have that state of mind because he or she believed the complainant was consenting, which often occurs, the issues become very complex. The jury must consider whether the accused’s belief was reasonable in all the circumstances. However, the trial judge must ‘balance’ this direction by explaining that whether the accused had reasonable grounds goes only to the issue of whether the accused actually had the belief.
There may also be evidence that the accused was aware that the complainant was asleep, or was so intoxicated as to be incapable of consenting, or that the complainant was submitting because of fear of force or harm. The Crimes Act specifies that this evidence is relevant to the accused’s claimed belief that the complainant was consenting but does not indicate that it has any relevance to the fault elements, namely whether the accused was aware that the complainant was not or might not be consenting. In this kind of situation, the trial judge must give the jury a number of directions concerning these issues.
The accused’s awareness of the above kinds of factors (e.g. that the complainant was asleep) is relevant to determining whether the accused’s belief that the complainant was consenting was reasonable in the circumstances. This must be understood in the limited way of assisting the jury to determine whether the accused actually or genuinely believed the complainant was consenting. And if the accused did so believe, the nature and strength of this belief must then be assessed in determining whether this prevents the prosecution from proving beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting.
Applying these directions to disputed evidence, where the evidence is also often the subject of directions about the purposes for which certain evidence may or may not be used, makes these directions even more difficult in a real case.
These directions are extraordinarily complex. The VLRC called for the review of sexual offence laws in its Jury Directions: Final Report (2009). Not surprisingly it has led to the Court of Appeal commenting that these laws throw into doubt the expectations of the jury system that the trial judge can explain the law and that the jury can comprehend the law, in all its permutations. Further the Court of Appeal has called for the ‘urgent and wholesale amendment’ of these laws.
In addition, there is a concern that the offence of rape is too narrow because it does not criminalise situations in which the accused’s belief that the complainant consented is completely unreasonable in all the circumstances.
In Part 3, we present three options for reforming the fault element in relation to the complainant not consenting in the offence of rape.
Option 1 would maintain the current law’s alternative fault elements with regard to the complainant not consenting, but seek to improve the clarity and structure of the offence and address a number of matters that are currently too complex or uncertain.
Option 2 would replace the three current alternative fault elements with two new alternative fault elements: either the accused knew that the complainant was not consenting or did not believe on reasonable grounds that the complainant was consenting. This option addresses the inherent functional complexities in the current fault element. Option 2 replaces these technical legal issues with more practical tests that can be applied by a jury. It also incorporates a policy proposal that a person who has no reasonable grounds for believing that another person is consenting to sexual intercourse should be guilty of the offence of rape.
Option 3 would split the proposal in Option 2 into two separate offences. The first offence would cover where the accused knew that the complainant was not consenting or did not believe that the complainant was consenting. The second offence would cover where the accused did not have reasonable grounds for believing that the complainant was consenting. This second offence would be called ‘sexual violation’ and would be subject to a lesser penalty than rape.
Part 3 also proposes a number of changes to the other elements of rape and the offence of compelling sexual penetration in order to make these offences simpler, clearer and easier to explain to juries.
Sexual assault and related offences
The offences of indecent assault and assault with intent to rape are inadequate in several respects. The notion of ‘indecency’ is unclear and outdated, and the definition of ‘assault’ is complex and unclear. The elements of the offence of assault with intent to rape are also unclear, and the maximum penalty for this offence (10 years imprisonment) is too low to properly reflect its seriousness as an offence preparatory to rape.
In Part 4 we discuss the forms of non-penetrative sexual assault that require proof of physical contact between the accused and the complainant. Our proposed changes would:
  • replace the offence of indecent assault with a new offence of sexual assault, which would modernise the terminology of the existing offence, and clarify its elements and scope 
  • revise the offence of assault with intent to rape in order to clarify its elements, in particular the meaning of ‘intent to rape’ 
  • increase the maximum penalty for assault with intent to rape from 10 years imprisonment to 15 years imprisonment, and 
  • create a new offence of compelling sexual touching to complement the offence of compelling sexual penetration.
In Part 10 we discuss offences related to sexual assault that do not require proof of physical contact between the accused and the complainant. Our proposed changes would:
  • replace the current offence of threatening to assault with intent to commit rape with a clear new offence of threat to rape 
  • create a new offence of performing a sexual act intended to cause another person to experience fear or distress, and 
  • replace the current statutory and common law offences of wilful and obscene exposure with a clear and revised summary offence of sexual exposure.
Sexual intercourse with a child
In Part 5 we discuss sexual penetration offences against a child. The current approach to sexual penetration offences against children under 16 – a single offence with three different maximum penalties – differs from the approach used for all other sexual offences. It is unnecessarily complex for police, lawyers, judges and juries. In addition, the maximum penalty for sexual penetration of a child under 16 (but not under 12) warrants further consideration.
Our proposal is to simplify the current approach by replacing the offences in sections 45 and 48 of the Crimes Act with three new offences:
  • sexual intercourse with a child under 12
  • sexual intercourse with a child under 16, and
  • sexual intercourse with a child aged 16 or 17 who is under the care, supervision or authority of the accused.
We also propose changes that would:
  • increase the maximum penalty for sexual intercourse with a child under 16 from 10 years to 15 years imprisonment in all situations (by removing the need for the prosecution to prove that the child is under the care, supervision or authority of the accused), in order to reduce the large gap in the maximum penalty for offences against a child under 12 and a child aged 12 or older
  • use a description of conduct that is consistent with the conduct in rape offences 
  • expand the definition of ‘care, supervision or authority’ to include a broader range of people within religious organisations who provide religious care or religious instruction to a child 
  • modernise and clarify the available exceptions and defences to the offences, and the allocation of the burden of proof in relation to each exception and defence, in order to reduce the complexity of jury directions concerning the defence of consent and reasonable mistake, and 
  • make offences generally much clearer and easier to prosecute and to explain to juries.
Sexual touching of a child, and sexual activity in the presence of a child
The current offences of committing an indecent act with or in the presence of a child contain a number of complexities and limitations. The notion of an ‘indecent’ act is unclear, outdated and requires modernisation. In addition, these offences have not kept pace with technological changes and need to be broadened to include sexual activity directed at a child through the use of technology.
In Parts 6 (dealing with sexual touching of a child) and 7 (dealing with sexual activity in the presence of a child), we propose changes that would:
  • create separate new offences of sexual touching of a child and sexual activity in the presence of a child 
  • clarify the conduct involved in each new offence by distinguishing clearly between contact forms of sexual activity with a child (that do not involve sexual penetration) and non-contact forms of sexual activity with a child 
  • replace the notion of ‘indecent act’ with the simpler concepts of ‘sexual touching’ (consistent with the approach in the proposed offence of sexual assault) and ‘sexual activity’
  • expand what it means to engage in conduct ‘in the presence of’ a child, in order to capture different ways of committing child sexual offences, including over the internet, and
  • clarify fault elements, exceptions and defences in relation to the current offences, which should assist judges in directing juries. 
Encouraging and grooming a child to engage in sexual conduct
The current offences of soliciting or procuring a child to take part in an act of sexual penetration or an indecent act are unclear, outdated and rarely used. The Cummins Report, Protecting Victoria’s Vulnerable Children (2012), recommended that Victoria enact an internet grooming offence. In Part 8 we propose changes that would:
  • provide a more modern, useable and responsive scheme of preparatory sexual offences, by replacing the current soliciting or procuring offences with new offences of encouraging a child to engage in sexual conduct 
  • expand criminal liability to apply where a person encourages a child to engage or be involved in sexual conduct, regardless of whether the child in fact engaged in any sexual conduct
  • remove the requirement that an accused be aged 18 or older, and
  • create a new offence of grooming a child under 16 for sexual conduct, which would apply whether the grooming occurs online, face to face or by any other means.
Exceptions and defences to sexual offences against children
In this review, we distinguish between ‘exceptions’ and ‘defences’ to sexual offences. We define an ‘exception’ as a provision which limits the scope of an offence by setting out particular conditions under which no offence is committed. In contrast, a ‘defence’ provides a separate basis for exculpating the accused, even where he or she has committed an offence. An accused who falls within an exception commits no offence, whereas an accused who successfully relies on a defence commits the offence, but is not guilty of the offence.
In Part 9 we discuss in more detail the rationale for, and scope of, each exception and defence to child sexual offences. We also propose a number of changes to make the exceptions and defences more consistent, less complex and easier to use, including clarifying the allocation of the burden of proof.
Changes to other sexual offences
In Part 11 we propose a number of changes to incest offences and the current offence dealing with persistent sexual abuse of a child.
We pose an important question in relation to the current incest offences. In all reported cases of incest involving a parent, step-parent or lineal ancestor and their child (of any age), the child is the victim/survivor. However, the Crimes Act makes it an offence for a person (aged 18 or over) to have sexual intercourse with their parent or lineal ancestor. The very existence of this offence contributes to a perception that child victims/survivors are complicit in some way in incestuous sexual abuse. The VLRC recommended in its Sexual Offences: Final Report (2004) that this offence be repealed. Part 11 poses the question whether this offence be kept, repealed or amended to provide an exception for adult children who were previously the victim of child sexual abuse.
We also propose minor changes to update the terminology and scope of the incest offences. These changes would modernise the definition of ‘child’ and related terms to reflect new types of parentchild relationships, and expand the scope of the offences to include domestic partnerships.
Procedural reforms and prosecuting multiple charges
Parts 12 and 13 address some current problems concerning the way certain kinds of sexual offending are prosecuted. Part 12 deals with repeat and systematic sexual offending. The current offence of persistent sexual abuse of a child fails to deal effectively with this most serious form of sexual offending. This is because it requires victims/survivors to provide specific details of each different instance of offending, and this is often not possible due to the repeated and systematic nature of the sexual  abuse. As a result, either no offence can be charged or only isolated offences can be charged. Several attempts have been made by parliaments across Australia to address the problems identified by the High Court in the case of S v The Queen (1989) 168 CLR 266.
No other Australian jurisdiction has found a way of dealing effectively with this heinous form of sexual offending. However, these problems have been successfully avoided or addressed in other jurisdictions such as the United Kingdom and New Zealand.
In Part 12 we propose a significant new approach to enable repeat offending to be charged. This new approach, based on the United Kingdom’s laws, could be used effectively for child sexual offences, but is not limited to these offences. This new approach would allow the filing of a charge (known as a ‘multiple offences charge’) that alleges a course of conduct of offending. Under this approach, it would not be necessary to identify specific offences in separate charges. This approach uses the very problem, the repetitive nature of offending, as the source of the solution. It essentially replaces the need for specific details with the need for proof of a course of conduct. This new approach would provide a fair and effective process for dealing with allegations of repeated sexual offences.
Part 13 deals with problems which can arise with sexual offences where one episode or occasion of offending gives rise to multiple charges because of the way the definition of rape, for example, covers a variety of types of sexual penetration. Such indictments treat the different instances of penetration as if they were distinct episodes of offending. To cover the whole episode, every separate penetration is charged as rape. This can make the jury’s task more complex than it needs to be and arguably may not properly reflect the true extent of the offender’s criminality. Sometimes this results in an indictment being ‘overloaded’. In Part 13 we propose a way to simplify such prosecutions by allowing the prosecution to allege multiple offences, in relation to the one occasion of offending, in the one charge.
The volume of charges can also be a problem because of limitations concerning when a court may take into account the surrounding circumstances, when these circumstances constitute a separate offence. The general presumption is that a person cannot be sentenced for an offence with which they have not been charged (Newman and Turnbull v The Queen [1997] 1 VR 146). This results in the prosecution charging lesser offences to ensure that the court can take all relevant circumstances into account when sentencing an offender. Part 13 proposes a simpler way for the court to consider less serious offences when sentencing, thereby allowing the prosecution to file indictments with fewer charges, which will make the jury’s task much easier


I'm chasing citations after reading Mark Harrison's elegant 'Secrecy' in Harrison (ed) Guns & Roubles: The Defense Industry in the Stalinist State (Yale University Press, 2008).

'Soviet controls on the circulation of information in the 1920s and 1930s' by Jonathan Bone in (1999) 40 (1-2) Cahiers du monde russe comments that
If Bolsheviks in general understood that knowledge is power, Stalinists institutionalized the adage. Historians have long recognized that Stalin and his supporters used control over information to help them gain, exercise, and maintain power in the USSR of the 1920s and 1930s. Surprisingly, however, there has been little serious investigation of how this deliberate manipulation might have affected the era's archival records. On the basis of recent work in a variety of Russian repositories, therefore, I should like to offer some initial observations on the ways information was controlled within the pre-war Soviet apparat (Party and state apparatus).
From the apparat's inception, conspiratorial Bolshevik habits (carried over from pre-revolutionary practice) reinforced tendencies normally inherent in bureaucratic settings such that knowledge was subjected to control. Individuals and especially institutions in the subsequent, formative years not only routinely manipulated information for their own proximate reasons. More and more they were required to control it procedurally, as part of the general process of consolidating and administering Soviet rule.
Specialists in the history of the 1920s and 1930s have paid considerable attention over the years to the increasing censorship of publicly disseminated information. However we have given short shrift to the control of information circulating within the apparat itself. While the Soviet Union still existed this neglect was an honest artifact of restricted archival access. In the relatively open post-1991 era, though, it has continued for what I think have been rather different reasons.
First, although cold-war concerns have not vanished entirely, the social focus that used to be decidedly heterodox now dominates our research. Our prior obsessions with the top end of the Soviet system and its capacity to do harm have yielded to broader interests in Soviet society and in the subtleties of the statesociety interface.
Second, many post-1991 investigators (Russians in particular) have been rather more interested in exhuming the Stalinist past than in the relatively prosaic work of analyzing it in full forensic detail. Given that the former activity must precede the latter, much of the bias is wholly understandable and perfectly normal. Unfortunately, zeal in uncovering repression and other salient secrets occasionally has exceeded attention paid to the provenance and general import of the evidence in question.
Controls on the circulation of information within the apparat can be divided heuristically into three general categories: right-to-know controls, need-to-know controls, and special handling procedures.
What I call 'right-to-know controls' involved the consecration of various types of material according to an elaborate, graded system of secrecy classification. Access to these sacred texts was proportionate to standing within the state apparatus. The lower the potential recipient's sacerdotal status, the lower the category of esoteric knowledge that was allowed.
'Need-to-know controls' circumscribed the circulation of information at a given right-to-know secrecy level. They compartmentalized knowledge that was notionally relevant to constituent parts of the state apparatus. In particular, they ensured that bureaucratic paper was directed to specific recipients and that these documents contained only that information thought necessary and/or sufficient for the purpose at hand.
Finally, 'special handling procedures' governed the preparation, distribution, and storage of secret materials. Note that none of these generic types of controls were mutually exclusive. Need-to-know targeting often was applied to material already restricted by secrecy classification, further narrowing its circulation. My eventual intent is to work through all three of these areas systematically. I shall confine myself here mainly to right-to-know controls and some special handling procedures.
Harrison's 'Secrecy and Transaction Costs: The Business of Soviet Forced Labour in the Early Cold War' (PERSA Working Paper no. 64, 2011) [PDF] argues that
In 1949 the Cold War was picking up momentum. The Soviet state had entered its most secretive phase. The official rationale of secrecy was defense against external enemies. One of the Gulag’s most important secrets was the location of its labour camps, scattered across the length and depth of the Soviet Union. As this secret was guarded more and more closely, the camps began to drop out of the Soviet economic universe, losing the ability to share necessary information and do business with civilian persons and institutions without disclosing a state secret: their own location. For some months in 1949 and 1950, the Gulag’s camp chiefs and central administrators struggled with this dilemma without achieving a resolution. This episode teaches us about the costs of Soviet secrecy and raises basic questions about how secrecy was calibrated.
His 'Why Secrets? The Uses of Secrecy in Stalin’s Command Economy' comments that
In Stalin’s command system secrecy was used to conceal information and decisions. We look at the uses of secrecy in a hierarchical system of the Soviet type in the context of the fundamental problem of command. Secrecy was a conditional choice. Principals gained by making economic information secret when the agent’s expected profit opportunities in private trade were tempting, horizontal trust was fragile, and secrecy itself was cheap. It paid them to make decisions in secret when unexploited opportunities, and the wage that the principal could afford to pay the agent, were both low. Under some circumstances secrecy benefited both principal and agent. Secrecy was one element in an equilibrium that enabled principals and agents to participate in the command system and enabled the system itself to persist.

Weak Patents, FAST Copyright, Lost Whistles

'The Competitive Advantage of Weak Patents' by William Hubbard in (2013) Boston College Law Review argues that
contrary to the beliefs of many U.S. lawmakers, U.S. patent law currently undermines the ability of U.S. firms to compete in global markets because strong U.S. patent rights actually weaken an overlooked but critical determinant of U.S. competitiveness: rivalry among U.S. firms. Intense domestic rivalry drives firms relentlessly to improve, spawns related and supporting domestic industries, and encourages the domestic development of advanced factors of production, like specialized labor forces. U.S. patents restrict rivalry among foreign firms less because U.S. patents have little extraterritorial effect. Moreover, due to legal and economic differences between the United States and other countries, foreign patents do not equilibrate competitive conditions abroad. Consequently, for U.S. firms to benefit from the same competitive environment as foreign firms, U.S. patents should be weakened. Such changes, however, also threaten to reduce U.S. competitiveness because U.S. patents promote the development of new inventions that help U.S. firms compete in global markets. This Article thus exposes a deep tension in U.S. economic policy. Unfortunately, lawmakers have failed to recognize this tradeoff and, as a result, have adopted excessively strong patent protections that undermine U.S. competitiveness. This Article addresses this problem by proposing balanced reforms that will selectively weaken U.S. patent protection to increase U.S. competitive advantage.
Meanwhile in the UK the Federation Against Software Theft (FAST) has announced
Corporate Britain out of tune on software theft
FAST’s third annual whistleblower’s survey reveals two-thirds wouldn’t report software piracy in the workplace.
The latest research from the Federation Against Software Theft (FAST) has revealed that while the majority of UK office workers are concerned about the negative effects of software theft to the economy, only one-third (34 per cent) would report the use of illegal software in the workplace.
The research, conducted in October 2013, surveyed 200 office workers to gauge their attitudes towards software piracy and whistleblowing, revealed that most would be happy to take a lax approach to software theft at the office.
Of those that would not blow the whistle, one-third (36 per cent) stated that they wouldn’t report it in order to protect their jobs, 16 per cent to protect their reputations, and a further 30 per cent simply didn’t care. Interestingly, a sizeable minority (14 per cent) cited concerns about negative media coverage about whistleblowers as a reason why they wouldn’t blow the whistle.
FAST's "other key findings" include:
  • 63% are concerned about the damaging effects of software theft on the economy 
  • 66% (down from (68% in the 2012 survey) would not report their employer if they were using illegal software
  • 57% of workers are unaware of the law that protects whistle blowers 
  • Of those who would report misuse, 57% cited their belief in ‘good practice’ as the reason to make a report, while a further 27% felt it was correct to stay within the law 
  • 52% of businesses have a formal policy in place on the illegal use of software in the workplace
52% of all businesses? Presumably the S end of SMEs doesn't count as "businesses".

Closed Doors

I've recently noted 'Perceived Homosexuals: Looking Gay Enough for Title VII' by Brian Soucek.

'The Undocumented Closet' by Rose Cuison Villazor in (2013) 1 North Carolina Law Review comments that
The phrase “coming out of the closet” traditionally refers to moments when lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals decide to reveal their sexual orientation or gender identity to their families, friends, and communities.In the last few years, many immigrants, particularly those who were brought to the U.S. illegally when they were very young, have invoked the narrative of “coming out.” Specifically, they have publicly “outed” themselves by disclosing their unauthorized immigration status despite the threat of deportation laws.In so doing, they have revealed their own closet — ”the undocumented closet” — in which they have been forced to hide their identity as “undocumented Americans.” Notably, by choosing to become visible, these undocumented Americans are slowly yet powerfully reforming immigration policy by demanding that they are recognized as lawful members of the American polity.
This Article explores the roles that the closet metaphor and the act of “coming out” play in the immigration justice movement. Drawing on scholarship examining the “closet” as the symbol for the oppression of LGBTQ persons, this Article theorizes the “undocumented closet” argues that this analytical framework facilitates a deeper understanding of the lived experiences of undocumented immigrants in the United States. First, the “undocumented closet” reveals the extent to which immigration and other laws that are designed to exclude unauthorized immigrants both literally and figuratively from the United States have compelled them to become invisible in society. Second, the “undocumented closet” framework underscores that public disclosures about one’s undocumented status, despite the risk of deportation, constitute acts of resistance against legal subordination and, importantly, claims for legal membership in the American polity. Finally, the “undocumented closet” facilitates a critical lens for reviewing immigration reform. Importantly, it calls for a rethinking of immigration law that would prevent the further “closeting” and subordination of immigrants and their families.


'The Case for Joint Ownership of Copyright in Photographs of Identifiable Persons' by Susan Corbett in (2013) Media and Arts Law Review comments that
Photographs of identifiable persons are frequently published without their permission. Copyright law supports this practice because the photographer usually owns the copyright in the photograph and copyright includes a right of publication. Although many subjects of photographs argue that unauthorised publication of their image is an invasion of their privacy, privacy law rarely provides a remedy. The online environment has broadened the scale of this activity and has exacerbated the law’s deficiencies.
Focusing mainly on New Zealand laws, this article proposes that copyright law should be changed in order to provide a quasi-privacy protection for identifiable persons in photographs. Although the concept of joint ownership is alien to privacy, joint ownership of copyright is permitted and would provide the subject with some control over dissemination of their image. A prerequisite for this proposal to be effective is that all photographs of human subjects must qualify for copyright protection. Although there have been calls to deny copyright to ‘mere snaps,’ particularly those taken with digital cameras, in this article I draw on social science and visual arts literature to suggest that copyright protection can be justified for most photographs of human subjects.


Matthew Rimmer is always worth reading.

His 'Wikipedia, Collective Authorship, and the Politics of Knowledge' in Intellectual Property Reforms: Fostering Innovation and Development (Edward Elgar, 2009) ed by Christopher Arup and William Van Caenegem considers -
the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. It also considers the establishment of rival online encyclopedia - such as Citizendium set up by Larry Sanger, the co-founder of Wikipedia; and Knol, the mysterious new project of Google. Part III explores the use of mass, collaborative authorship in the field of science. In particular, it looks at the development of the Encyclopedia of Life, which seeks to document the world's biodiversity.
This chapter expresses concern that Wiki-based software had to develop in a largely hostile and inimical legal environment. It contends that copyright law and related fields of intellectual property need to be reformed in order better to accommodate users of copyright material (Rimmer 2007). This chapter makes a number of recommendations. First, there is a need to acknowledge and recognize forms of mass, collaborative production and consumption - not just individual authorship. Second, the view of a copyright 'work' and other subject matter as a complete and closed piece of cultural production also should be reconceptualised. Third, the defense of fair use should be expanded to accommodate a wide range of amateur, peer-to-peer production activities - not only in the United States, but in other jurisdictions as well. Fourth, the safe harbor protections accorded to Internet intermediaries, such as Wikipedia, should be strengthened. Fifth, there should be a defense in respect of the use of 'orphan works' - especially in cases of large-scale digitization. Sixth, the innovations of open source licensing should be expressly incorporated and entrenched within the formal framework of copyright laws. Finally, courts should craft judicial remedies to take into account concerns about political censorship and freedom of speech.

24 October 2013

Defamation Reform

'Six Years of Australian Uniform Defamation Law: Damages, Opinion and Defence Meanings' by Andrew Kenyon in (2012) 35(1) University of New South Wales Law Journal considers the operation of uniform defamation legislation in Australia 2006, arguing that
The very achievement of uniformity in defamation has been seen as a ‘watershed’, with efforts towards national reform dating back more than 30 years. The uniform legislation was agreed between state and territory Attorneys-General in the shadow of a Commonwealth threat to enact national legislation that would have operated only within the scope of Commonwealth constitutional power. A media commentator observed at the time: ‘from the perspective of the media, [the Commonwealth’s] original proposal was so appallingly bad that it changed the politics of defamation reform. 
Kenyon's excellent article concludes
What do judgments to date suggest about Australia’s uniform defamation law? As suggested soon after the laws commenced operation, the uniform law is an evolutionary change. That is an understandable product of its formation and the long history in Australia of seeking uniformity. But larger questions remain about the law’s substance and, equally, litigation practices. These suggest a key test for the uniform scheme will be upcoming reforms, if any, arising out of the uniform law’s review by the New South Wales Attorney-General’s Department. As Michael Gillooly has commented, the ‘major advance’ in the reforms was ‘the achievement of uniformity’ itself ‘and it is this which, one hopes, has laid the foundation for substantial and principled reform to take place in the future’. Some areas for reform emerge from the cases.
This article has considered three areas in particular. The first was damages. The statutory cap on damages for non-economic loss, which reached $324 000 in mid-2011, appears to have prompted a significant reduction in the level of awards. The highest awards have been below the limit, the quantum of damages has been ‘scaled’ in proportion to the limit, and a host of case examples suggest comparatively modest sums are now common. The ability to exceed the cap through aggravated damages does not appear to have weakened the cap’s effectiveness. But the ability of plaintiffs to seek damages up to the cap for each of multiple publications, and the courts’ approach to consolidation of defamation actions, suggest the caps’ apparent success may not be sustained. If the cap aims to increase certainty for parties and ensure limited awards for noneconomic loss, the ability to multiply actions needs to be constrained.
The second area considered was honest opinion and its common law version, fair comment. While a challenge of application remains in distinguishing fact and comment, it appears the change in the defence’s terminology – from ‘comment’ to ‘opinion’ – should not narrow its scope. A narrower scope could substantially limit the statutory defence and increase reliance on the still available common law protections of fair comment. In addition, the uniform laws sought to clarify the treatment of opinions of different speakers, whether the defendant, an employee or agent, or another commentator. However, this reform appears to have prompted journalists to be joined to defamation actions against their employers. Case law suggests this change may have arisen from a view that journalists had to be joined for it to be possible to defeat an honest opinion defence. However, no clear reason has been offered as to why that would be so. Instead, it may be that journalists are sued alongside employers, so the journalist can be argued to be directly liable for a defamatory opinion (where the journalist did not hold the opinion when published) even if the employer could have a defence itself against direct liability (because it believed the journalist held the opinion). The simplest solution may be to revert to the position under the former New South Wales law, so the same test for defeasance applies for employers, employees and agents. However, that would leave to one side the apparent aim of the reforms to strengthen this aspect of the defence. Some statements about the common law defence in Manock suggested fair comment had to be ‘reasonable’. This is an unusual analysis given the defence’s traditions and it seems unlikely to be followed for honest opinion. Manock also addressed requirement for facts underlying a comment to be stated or indicated in the publication, or to be notorious. Initial case law under the uniform law suggests this requirement will be imported into the statutory defence, even though the statutory wording omits any reference to it. As recent developments in England suggest, importing this requirement may not be warranted. After an exhaustive consideration of traditional fair comment authorities as recognised in English law, the United Kingdom Supreme Court has set out a more relaxed test.
The third main area considered above was the way in which honest opinion is a defence against the plaintiff’s pleaded imputations, or the defamatory matter about which the plaintiff complains. While the Australian common law of defamation has moved towards a greater focus on pleaded imputations – adopting without explicit discussion some of the most criticised aspects of the former New South Wales law – it is not clear the same approach need follow for the uniform law. In relation to honest opinion, the statutory defence’s wording differs from the former New South Wales law. It is set out as a defence to the publication of defamatory matter. In addition, the legislative history suggests moving away from the concept of imputations was deliberate. It was observed in New South Wales parliamentary debates that honest opinion did not use the word ‘imputation’ at all because it aimed to avoid ‘the arcane system of pleading’ then applying in New South Wales. There is also some case law support for the statutory defence having a ‘non-New South Wales’ form. This issue, however, raises larger questions about the impact of pleaded meanings on defences. These were considered above through the example of the Victorian Supreme Court decision in Soultanov. That careful judgment explains the current Australian approach, while also displaying its limitations. With awareness of the potential for unfairness to each party and the need to tether the analysis of meaning to the publication in context, it also suggests how asking the following three questions would be a better approach for opinion or justification defences. Is the meaning the publisher seeks to defend capable of arising from the publication? Does the defence meaning not arise from a separate and distinct allegation to that of the plaintiff’s complaint? Are there defence particulars that could establish the defence? Whether, and how, to move to that sort of approach remains for future cases.
Reform might also help address the issue. The Law Council of Australia has suggested what might be an elegant statutory reform, which could achieve the substance of this approach for truth defences. The proposal is slightly wider than the above three questions, although it would focus only on truth not opinion defences. Its aim is to overcome limitations in the current drafting of the contextual truth defence.  The suggestion is that defendants should be able defend as true any imputation conveyed by a publication, whether it is an imputation complained of by the plaintiff, an additional imputation, or one having a common sting with an imputation complained of by the plaintiff. A defence would exist where any imputations of which the plaintiff complains (that are not proven substantially true) do not further harm the plaintiff’s reputation because of the substantial truth of the ‘contextual imputations’. It is argued this would ‘reduce the potential for tactical pleading of imputations by all parties … be likely to lead to a concomitant reduction in interlocutory disputation, and ensure that neither party could prevent the “real” meaning of a publication from being put before the trier of fact’. These are highly laudable aims. If the concept of ‘common sting’ in the proposed statutory wording encompassed the case law deriving from Lucas-Box as well as Polly Peck, it could be a very sensible reform. This offers a parallel avenue to further consideration of the issue in case law. However, unless equivalent steps were taken through statutory reform of honest opinion, the opinion defence would be left more constrained than for truth, contrary to the logic and practice under English law of dealing with defence meanings in an equivalent manner for justification and honest comment. The history of reform in Australia and the tortuous path towards uniformity does give pause to the idea of purely statutory reform for defamation law.

Pharma Regulation and Big Data

Reforming parts of the US pharma regime? 'Independent Drug Testing to Ensure Drug Safety and Efficacy' (Edmond J. Safra Working Papers, No. 23) by Marc A. Rodwin outlines
a reform proposal that would preclude bias in clinical trials used to test drugs that is inherent in the current system where the pharmaceutical firms sponsoring the drug designs the clinical trial and selects the researchers who will conduct the research. Under the current approach manufacturers can frame the research in a way that biases the result. Moreover, organizations that perform the research depend on the pharmaceutical firm sponsor for their income, an arrangement that fosters dependency corruption. The reform proposal would remove all drug firm influence on the design and conduct of clinical trials used to decide whether to allow marketing of a drug. A federal agency would select the researchers to design and conduct the phase II and III clinical trial, or the clinical trial would be conducted by an independent government agency. The pharmaceutical firm that wished to market the drug would be required to finance the clinical trial. Between the late 1950s and 1980s, reformers and congressional leaders championed variations of this proposal, but pharmaceutical industry opposition blocked its enactment and so the federal government pursued alternative strategies, which have proved ineffective. By the mid-1990s, scandals prompted several leaders in drug policy and research to again advocate legislation to require independent drug testing. The paper concludes by the discussing difficulties that will arise in implementing this proposal and how these can be overcome.
Looking further afield, last month we reached an unrecognised inflection point in the history of health ‘big data’.

US-based medical giant Merck announced an agreement with Israel’s Maccabi Healthcare to “leverage Unique Real-World Database to Inform Novel Health Approaches”.

Maccabi is a comprehensive health maintenance organisation, which operates pathology facilities, hospitals, nursing homes, pharmacies, pathology facilities and ‘wellness’ centres. It has invested heavily in information technology over the past two decades and now has electronic information about its over two million members. That membership accounts for around a quarter of Israel’s population. The Maccabi data encompasses records about medical conditions that are attributable to lifestyle, for example cancer and heart-lung disease associated with smoking or cancer associated with too much time in the sun. It also encompasses conditions that are associated with the genetic profile of particular demographics.

The announcement indicates that the two organisations will use their
 technical and information research capabilities to draw insights from Maccabi’s data to support personalized health care delivery strategies across several therapeutic areas, including prevalent and costly chronic diseases ... the parties seek to enable better understanding of unmet patient needs, real-world outcomes achieved with medical treatments, and optimal approaches for improving patient adherence. That understanding will be based on analysis of Maccabi’s fully integrated, electronic, de-identified patient data. 
The sharing is expected to
support personalized health care delivery strategies across several therapeutic areas, including prevalent and costly chronic diseases ... enable better understanding of unmet patient needs, real-world outcomes achieved with medical treatments, and optimal approaches for improving patient adherence”.
What is the significance of the partnership for Australian health researchers, insurers and regulators?

From a research perspective the announcement is exciting because it is the first time ‘Big Pharma’ has acquired access to comprehensive health data about 25% of a nation’s population, as distinct from the more limited DNA collection undertaken by deCODE (subsequently acquired by AMGEN) in Iceland, which reportedly covered around half of that nation's 320,000 population. The deidentified Maccabi data is not a one-off snapshot. Instead it reportedly covers a period of twenty years and will apparently be provided on an ongoing basis.

Merck indicates that the data will be deidentified – (pseudonymised or more comprehensively anonymised?) but the partners are likely to face questions about the potential for what's typically characterised as deanonymisation or reidentification.

From a competition policy perspective the announcement is interesting. Many researchers would presumably love to have access to the information but will be excluded, given that the data will apparently be restricted to Merck and that corporation’s partners. The increasing scholarly literature about a global ‘right to health’ has not yet engaged with notions of a right of access to fully or partly anonymised longitudinal health data. That data typically remains a commercial commodity, for sale to the highest bidder apart from restrictions under national privacy law.

Perceptions of the commercial value of large longitudinal health data sets will pose a challenge for Australian insurers and regulators, particularly amid talk about privatising Medicare, Australia Post and other icons. Would a major lifesciences enterprise want to buy privileged access to the anonymised data of most of the Australian population over the past decade through a deal with Medicare? What about buying a smaller dataset from one of the private sector health insurers? One pointer, as noted in a forthcoming article, was the partnership between insurer NIB and an offshore enterprise that offered direct to consumer genetic testing.

Price of the ticket

'A Passport at Any Price? Citizenship by Investment Through the Prism of Institutional Corruption' (Edmond J. Safra Working Papers, No. 22) by Laura Johnston comments that
 As of mid-2013, Cyprus and Antigua and Barbuda are set to join a small but growing list of states that offer naturalized citizenship to aliens on the basis of significant investment in their respective economies. Granting citizenship by investment may appeal to policymakers, particularly in states experiencing financial turmoil, as a means to attract much-needed foreign investment. This paper seeks to critique citizenship by investment policies through the prism of institutional corruption, adopting and applying institutional corruption concepts developed in other fields to this new field of analysis. This paper argues that citizenship by investment policies amount to institutional corruption because they threaten to destroy the value of national citizenship and corrode public trust in citizenship in a way that naturalization on other bases does not. ... granting citizenship by investment is institutionally corrupt because it undermines public trust in citizenship and corrodes its inherent value. While conferring citizenship by investment may bring significant economic benefits to the granting state that trickle down to its existing citizens, it nonetheless amounts to “perfect–” or “imperfect value denigration.” The act of exchanging a higher-value good (citizenship) for a lower value good (money) destroys the value of citizenship and corrodes public trust in that institution in a way that naturalization on other bases does not. It is accordingly an instance of institutional corruption that policymakers should take care to avoid.
Johnston argues that
As citizenship marks the formal boundary between those inside and those outside a polity, public trust in citizenship can refer to both citizens’ and outsiders’ trust in the institution. It is difficult to assess citizens’ trust in their own national citizenship, given there is no readily accessible measure by which to gauge the esteem in which citizens of a state hold their citizenship. It is perhaps easier to test international public trust in a given citizenship. A useful, though by no means definitive, measure of this is states’ willingness to grant citizens of another given state visa-free access to their territory. When a state decides to admit a citizen of another state into its territory without a visa, it is arguably signaling that it trusts the integrity of that state’s passport and does not consider its citizens to pose any generalized threat. The willingness to exempt certain national passport holders from the rigors of a visa approval process is therefore a useful proxy for public trust in the national citizenship that passport represents. 
'The pros and cons of ius pecuniae: investor citizenship in comparative perspective' (EUI Working Paper RSCAS 2012/14) [PDF] by Jelena Dzankic looks
at the economic inclusivity of citizenship regulation and draw parallels between different countries offering naturalisation to investors. The underpinning question of the paper is whether investor citizenship has a merely economic dimension in terms of attracting foreign capital, and whether and when there is also a normative argument for making naturalisation easier for investors. By answering this question, the paper highlights the tension in understanding the logic behind investor citizenship programs. That is, in deciding to naturalise investors, states can either maximize economic utility and grant citizenship to investors by waiving all other naturalisation requirements, or uphold genuine ties with the polity as the core of citizenship by retaining them. 
Citizenship denotes the relationship between the individual and the state, including the rights and duties stemming from an individual’s membership in the polity. Citizenship, as such, is a relationship of reciprocity (Held 1991: 20), which has both a political and a normative dimension. The political dimension of citizenship is intimately related to participation, through which individual members of the community exercise their will. The political aspect of citizenship has implications for the nature of the relationship between the individual and the state, as it also entails the individual’s loyalty to the state and his or her identification with the polity. In cases of individuals born into a polity, this loyalty is assumed and exercised through the duties of citizenship (e.g. law abidance, taxation, military duty). Yet, citizenship is exclusionary for those aspiring to become citizens of a polity. This means that gaining membership to a polity entails fulfilling a set of conditions, which are aimed at proving an individual’s commitment to the state he or she aspires to be admitted into. These conditions stem from the normative facet of citizenship and are encapsulated in nationality laws. Naturalisation, or the admission of individuals into the polity, is a prerogative of the state. According to Spiro (2007: 34), naturalisation, albeit used only in exceptional circumstances, has existed in Ancient Rome, whereby citizenship could ‘be conferred on an individual for great acts in the service to the community’. Nowadays, naturalisation conditions are far more regulated, and seek to ensure the establishment of genuine ties between the individual and the polity. They often entail the individual’s physical link with the state (residence), his or her knowledge of the socio-cultural norms of the polity (language and culture tests), moral standing (proof of non-conviction), and financial sustainability (proof of income). 
Yet, citizenship by investment can be obtained with or without residence. The investment may grant the individual the right to reside in another state and acquire citizenship subject to residence and other criteria, or it may result in the outright conferral of citizenship. The former is a common practice, adopted by a number of countries worldwide including the United Kingdom, the United States, Canada, Belgium, Australia, and Singapore. These countries offer premier residence1 to investors, with the assumption that the investment will yield significant economic benefits to their country, while also creating strong links between the individual seeking to be naturalised and the state through mandatory residence. In many cases the residence requirement is the same as for ordinary naturalisation, but some countries may act on a case-to-case basis and reduce the residence requirement for investors (e.g., Austria, Belgium). By contrast, in some countries, the investment may confer citizenship upon an individual regardless of other naturalisation criteria. Although many countries have given the state authorities the discretion to naturalise individuals on grounds of cultural, economic, or other achievements, only two countries have developed detailed investor citizenship programs: Commonwealth of Dominica and St. Kitts and Nevis. In Europe, Austria and Montenegro also implement investor citizenship programs, but these are loosely regulated and thus more reliant on discretionary power of the state authorities. In none of these countries are prospective applicants bound by residence. Such a conferral of citizenship is based on the assumption that the investment in itself is a sufficient proof of an individual’s commitment to the new polity. Given the degree of discretion that governments have in deciding upon naturalisation on these grounds, citizenship by investment programs have raised numerous contentious questions, including those related to tax evasion, extradition, and corruption.

Private Action

Given concerns about regulatory incapacity that are evident in posts in this blog regarding health and privacy law it is interesting to see the 88 page 'Private Enforcement' by Stephen B. Burbank, Sean Farhang and Herbert M. Kritzer in (2013) 17 Lewis & Clark Law Review 637.

The authors comment that
Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of an enforcement strategy and, in the case of private enforcement, are critical to the efficacy of a private enforcement regime. We then turn to the business of institutional architecture, describing the considerations — both in favor of and against private enforcement — that should affect the choice of an enforcement strategy. We lay out choices to be made about elements of a private enforcement regime, attending to the general legal landscape in which the regime would operate, particularly court access, as well as how incentives for enforcement interact with the market for legal services, which has important implications for private enforcement activity. We situate these legislative choices about private enforcement in the context of institutions that shape them. Finally, we seek to demonstrate how general considerations play out by examining private enforcement in two policy areas: legislation proscribing discrimination in employment, and laws protecting consumers from unfair and deceptive practices.


In Knott Investments Pty Ltd v Winnebago Industries, Inc (No 2) [2013] FCAFC 117 the US recreational vehicle manufacturer Winnebago Industries Inc. has secured a permanent restraint on Knott Investments and other Australian dealers from manufacturing, promoting and selling such vehicles in Australia using the Winnebago name without the licence and consent of Winnebago and without first providing a disclaimer for purchasers, hirers or persons to sign, that they were informed that the vehicles were not manufactured by Winnebago, or anyone having any association with Winnebago.

The restraint includes -
(a) the Winnebago name; 
(b) any other name or mark substantially identical with, or deceptively similar to, the Winnebago name; 
(c) the Winnebago logo, being the Winnebago name represented in a stylised manner as shown in Schedule 1 to these orders; 
(d) the W logo, being the letter “W” represented in a stylised manner as shown in Schedule 2 to these orders; and 
(e) any other name or mark or logo substantially identical with, or deceptively similar to, the Winnebago or W logos, without: 
(f) where the name, mark or logo is used on one or more vehicles or in a document (including any print advertisement or webpage), stating in any relevant document (including any print advertisement or web page) or on any vehicle, clearly and prominently, and reasonably proximate to any name, mark or logo:
(i) (where the name, or mark or logo is used on or in relation to a single vehicle) “This vehicle was not manufactured by, or by anyone having any association with, Winnebago of the United States”; or 
(ii) (where the name, or mark or logo is used on or in relation to more than one vehicle) “These vehicles were not manufactured by, or by anyone having any association with, Winnebago of the United States”;
(g) where the name is used in a radio commercial, stating by a clear and prominent voiceover of no less than 10 seconds: “These vehicles were not manufactured by, or by anyone having any association with, Winnebago of the United States”; and 
(h) where the name, mark or logo is used in a television advertisement, stating clearly and prominently and by a clear and prominent voiceover of no less than 10 seconds: “These vehicles were not manufactured by, or by anyone having any association with, Winnebago of the United States”.
In Modena Trading Pty Ltd v Cantarella Bros Pty Ltd [2013] FCAFC 110 the Court has overturned the first instance ruling that Modena had infringed Cantarella’s registered trade marks for Oro and Cinque Stella for coffee. On appeal the FCAFC revoking the registrations on the basis that the marks were not capable of distinguishing. Both Modena (as agent for Italian company Molinari) and Cantarella had been using those words to identify their coffee. In 2011 Cantarella sued Modena, alleging that the products imported and sold in Australia were infringing Cantarella’s registered marks.

The Federal Court initially agreed. The Full Court however overturned that decision and ordered cancellation of Cantarella’s marks. In doing so the FCAFC judgment revisited the test in Clark Equipment v Registrar of Trade Marks (1964) 111 CLR 511 for determining when a mark is inherently adapted to distinguish
the question whether a mark is adapted to distinguish [is to] be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives — in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess — will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it.
The High Court in Clark Equipment refused registration of the Michigan mark for tractors originating in the US state of Michigan. The Court held, in an era when Michigan was famous for metal bashing, that other traders might without improper motive want to use that word in describing other tractors.
In Modena Trading the FCAFC commented that Italy was a common source of coffee, the Italian language often featured in relation to coffee - law lecturer fuel such as cafe latte, espresso and cappuccino - it was likely that other traders would without improper motive be likely to want to use descriptive Italian words in relation to their product. Such words include Oro and Cinque Stella.

Importantly, the FCAFC considered that the trial judge put too much emphasis on understanding by “ordinary English-speaking people in Australia” - ie Australian consumers generally - of Oro and Cinque Stella. The proper enquiry was instead whether other traders would want to use those words. It indicated that the reference to “the common right of the public” enunciated by Kitto J in Clark Equipment was a reference to the common right of other traders as a sub-section of the general public.

Pharma Payola

Having written about 'pharma payola' I was interested to see ''You're Not Just a Paid Monkey Reading Slides:' How Key Opinion Leaders Explain and Justify Their Work' (Edmond J. Safra Working Papers, No. 26) by Sergio Sismondo, which comments
Key Opinion Leaders (KOLs) are physicians and researchers hired or engaged by pharmaceutical companies, often to speak to audiences of other physicians. This paper provides some background information on the structures of pharmaceutical company influence on and control over KOLs, and then focuses on KOLs’ explanations and justifications of their paid work for the companies. Among their important justifications are ones in terms of the educational value of the talks they give, and the benefits gained by patients; these are buttressed by claims about the integrity of the speakers. However, KOLs rarely address larger issues to do with the influence that pharmaceutical companies have on medical knowledge, issues not addressed by the KOLs’ integrity.
Sismondo argues that
Key Opinion Leaders play important parts in pharmaceutical companies’ marketing strategies, alongside medical science liaisons, sales representatives, scientific research and publications, advertising, and other elements. As that short list suggests, pharmaceutical marketing is centered on the movement of information, mostly forms of medical science. 
KOLs are important information conduits. “There are a lot of physicians who don’t believe what we as drug representatives say,” says Kimberly Elliott, the former sales representative. “If we have a KOL stand in front of them and say the same thing, they believe it.” Clearly representatives of the pharmaceutical industry believe that KOLs can do commercially useful work under the guise of science and/or medical experience, keeping company interests in the background as they present scientific evidence for (and against) the drugs on which they are speaking. There may be more at stake than belief, too: KOLs may be serving as models for other physicians to emulate, leading not just opinions but behavior. 
As we have seen, KOLs and the data they present are carefully managed. Physician KOLs are trained to explain specific scientific data, and then make presentations with company slide sets; in the process they are co-opted into promotional plans. Researcher KOLs may be brought into a company’s ambit in other ways, such as through advisory boards and consultancies, with research funds for commercially valuable projects, and with authorship on company articles. By definition, good management impinges on KOLs’ actual independence, though they may not always be aware of it—as we’ve seen, KOLs vigorously insist that they are not paid shills, paid stooges or paid monkeys, even though they are paid. When they are justifying their work as paid speakers, KOLs’ sense of independence or integrity is crucial. They can focus on the fact that they believe what they say, that they see it as warranted, regulated, and useful. If they can speak with conviction, they don’t consider any of the relationships that they might have with the sponsoring company to be relevant. There is no possibility of interested science, and no possibility that the careful deployment of science can support commercial over patient interests. KOLs can cheerfully take the money, status, and perks that pharmaceutical companies offer, secure in the belief that they are acting in the interests of education and health. 
There are at least three ways in which KOLs’ sense of their own integrity fails to address important politico-epistemic issues. First, as I have just mentioned, pharmaceutical companies go to some lengths to gain some control over the actions, habits, beliefs, and loyalties of KOLs with whom they engage. Thus KOLs may be misled in their sense of integrity, since they are not fully independent. When they give promotional talks in particular, they are tightly controlled, and it is only by portraying the sources of control as stemming from regulatory demands—such as the demands of the FDA—that they can insist on their full integrity. 
Second, even if those companies did almost nothing to co-opt KOLs, there would be lingering issues about conflict of interest. Take Dr. R, who earned more than $200,000 in speaker’s fees in 2009. He is concerned about the ethics of this, but defends his actions in terms of good science. “There is always the potential that somehow I’m getting in under the radar and then springing this very subtle and very pernicious sales message. . . . I’m listening to myself every time I speak, and I have to ask myself the question: ‘Is what I’m saying truthful?’” The massive conflicts of interest that Dr. R has, stemming from his substantial income from speaking engagements, would affect not only the likelihood of his giving a sales message in his talks, but also the likelihood that he would not recognize it and the likelihood that he would answer his own question about truthfulness affirmatively. Conflict of interest has powerful effects, in medicine as much as anywhere else. 
Third, and most importantly, personal integrity does not address central issues in the political economy of medical knowledge. When pharmaceutical companies pay KOLs to be conduits of information, it is the companies’ preferred information being circulated. Pharmaceutical industry funding makes up roughly half of the funding for clinical trials, and sponsors a majority of the new trials initiated each year. Clinical trials represent the most generally valued forms of medical science. The industry produces a significant portion of the scientific literature on in-patent prescription drugs, with as many as 40 percent of the articles on recently approved drugs in the more prestigious medical journals having been ghost managed for companies. Publication planners are involved in the creation of those articles, and also in the choice of KOLs to serve as authors and the choice of journals to which to submit them.  Companies’ interests can thus be expected to influence a myriad of legitimate choices in the design, implementation, analysis, description, and publication of clinical trials. We can reasonably expect, and there is abundant evidence, that the industry makes those choices to support its commercial interests.42 Even if companies are not completely coherent actors, they are coherent enough in their goals that choices in all the different stages of research and communication can point in the same direction. The result is still recognizably medical science, but it is science serving very particular and clear interests. 
This continues with the communication of medical science in the field, where, as we have seen, pharmaceutical companies hire KOLs to give PowerPoint presentations where every slide is company-prepared and mandatory, and where there is a script that must be followed. It continues into CME, where pharmaceutical companies contract with medical education companies to produce courses that serve their interests, using physicians who have been vetted and prepared as instructors. When they give talks, KOLs contribute to the enormous influence that the pharmaceutical industry has on medical knowledge. What they communicate will often be sound medical science, and thus will not often challenge their senses of integrity; nevertheless, it will be science chosen to help sell a product. 
Research, education, and marketing, then, are often fused. When a physician learns about conditions and treatments, she is often learning results created by agents of pharmaceutical companies and transmitted by other agents of those companies. In the end, it matters little what KOLs think they are doing, how honest they are, or how much they believe what they say. They are, inevitably and inescapably, part of large- scale, commercially driven efforts to shape the medical knowledge that physicians have and apply in practice.


'The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe' by Bryce Clayton Newell' in (2014) 10 I/S: A Journal of Law and Policy for the Information Society explores
the relationship between liberty and security implicated by secret government mass surveillance programs. It includes both doctrinal and theoretical analysis. Methodologically, the paper examines judicial reasoning in cases where parties have challenged secret government surveillance programs on Constitutional or human rights grounds in both United States’ Courts and at the European Court of Human Rights (ECtHR). Theoretically, this paper will draw on theories in the fields of law, surveillance studies, and political theory to question how greater recognition of citizen rights to conduct reciprocal surveillance of government activity (for example, through expanded rights to freedom of information) might properly balance power relations between governments and their people. Specifically, the paper will question how liberal and neo-republican conceptions of liberty, defined as the absence of actual interference and the possibility of arbitrary domination, respectively, and the jurisprudence of the ECtHR can inform the way we think about the proper relationship between security and liberty in the post-9/11, post-Snowden United States of America.
Another perspective is provided in 'Bulk Metadata Collection: Statutory and Constitutional Considerations' by Laura Donohue in Harvard Journal of Law and Public Policy noted here.

23 October 2013

Employment Restraints

'Restraints of Trade: The Legal Practice' by Christopher Arup, Chris Dent, John Howe and William Van Caenegem in (2013) 36(1) University of New South Wales Law Journal assesses
the impact of legal practice upon the enforceability of employment restraints of trade. Post-employment restraints range from those prohibiting use of confidential information acquired through employment (non-disclosure clauses), or the solicitation of previous customers (non-solicitation clauses), to wider clauses imposing an obligation on the employee not to compete with the employer for a defined period after the termination of the employment (non-compete clauses). The empirical research reported in this article demonstrates that there is much uncertainty in the operation of the law around the use of restraint of trade clauses in employment contracts. While most usefully nuanced, the evidence suggests that to a significant extent, this uncertainty weighs more heavily on the side of any dispute that is least able to bear it – the employee. In light of our findings, we have introduced a limited number of reform options (ranging from the radical to the limited, and from the substantive to the procedural) that would assist in reducing the over-enforcement, or over-observance, of restraint clauses.
The authors comment that
Employment restraints are becoming increasingly common. The common law principles have insisted that employment restraints are to be enforced very conservatively because they are likely to be contrary to public policy. Yet such conservatism is not always evident. Restraints may be seen to be over-enforced, or at least overly observed, where the courts do not apply the principles rigorously – for example, by not demanding proof of a legitimate business interest. Restraints may also be over-enforced because the legal practice discourages employees from challenging them in the courts. While the outcome of the particular case remains uncertain or indeterminate – on the basis of the vague standards to be found in the legal principles – the legal practice gives play to asymmetries and inequalities between the parties. Uncertainty is a greater burden for the party, without inside knowledge (of proceedings, courts and decisions), and without resources (financial, psychological, relational and reputational) to bargain hard and maintain litigation. That usually though not always is the employee. Our observation is that the practice has a chilling or intimidating effect, which means that employees observe restraints, even if they overreach, without challenging them in court. Even where they do challenge the restraint, they readily withdraw or they compromise when met with legal proceedings. This practice produces injustices and is also contrary to the public interest. 
This article tests these common assertions against the evidence of the practice. We have gathered data about the legal practice around the state supreme courts. That data includes the legal principles, legal proceedings, cited decisions and legal commentaries. But the article goes beyond this book law to report the impressions and insights gained from a set of interviews with practitioners. These interviews provide a uniquely nuanced picture. It reveals that there are occasions of under-enforcement or genuine compromise. Overall, though, the momentum is with the employer and the practice is a daunting one for many employees to navigate. In this article, following the provision of an introductory context, we identify the uncertainty in the legal principles that contributes to the influence of the legal practice. In the third section, the legal proceedings are examined and some recent cited decisions are mentioned. The fourth section characterises the nature of the parties’ decision making about litigation and locates the burden of uncertainty. The final section nominates some reforms that are aimed at reducing the burden, particularly as experienced by employees who are subject to the restraints. We believe that they merit further consideration.
They conclude
A Legal Proceedings 
Many of our findings point to hard bargaining under conditions of uncertainty, thereby confirming law and economics insights into the relevance of extra-legal economic factors to outcomes (such as the role of transactions costs, and then micro-power analyses, involving unequal access to legal expertise, financial reserves and other sources of power). The research also shows that much of the hard bargaining goes towards submission or settlement: the employer’s lawyer threatens to file with the court; the employee is advised of the factors weighing against a defence in court; and depending on nerve, cost constraints and the benefits at stake, the employee submits or some compromise is hammered out. In a few cases, proceedings are commenced and the dispute is settled or an injunction is granted. Fewer still go to trial and attract a ruling. Of those that do, some the employer wins. Decisions where the court chooses between steps, or in New South Wales an excessive restraint is read down, are still rare but are likely to increase. 
The influence of the factors that weigh against proceedings cannot be broken down purely on employer versus employee lines. Nevertheless, unless the new employer is prepared to become involved, the employee is usually at a disadvantage compared to their former employer. This finding suggests that more restraints are enforced (and seen to be enforced) than would be found to have merit if they went to trial. There is a strong disincentive for employees to go into litigation. The employer can obtain a result without proceeding. Even if the employer compromises, it will leave some restraint in place. The disincentive is increased by the prospect that the employer can obtain provisional or partial enforcement. These circumstances encourage employers to overreach with heavy restraints and discourage employees from challenging their validity.  The likely result is that the employees pass up opportunities to move jobs or they stand out of the industry. All the same, the factors can militate against the enforcement of restraints. As well as the legal costs, which would weigh heavily on smaller employers, there were the difficulties obtaining evidence; the lack of monitoring in some cases, so that whether the ex-employer finds out about the actions of the ex-employee is fortuitous; the desire to maintain good relations; the negative signal to others from a court loss; and the demoralising effect on other employees. Even a win can be a loss in certain situations. On this basis, it was our impression that employees tend to underestimate the factors that militate against the employer taking the matter to court and not settling, and therefore are more ready to compromise than is actually strategically required. However, some do use this situation to ignore the restraint. 
Finally, enforcement draws the parties into legal proceedings in and around a supreme court. The insights of the repeat players, the lawyers themselves, are of great value here. The knowledge available to insiders helps parties predict – and even shape – the response of the courts. They can pitch the right arguments to the court and they can even characterise the decisions in their feed-back to employers and employees. The ongoing relationships also give these lawyers insights into the nature of settlements that are considered acceptable. There were signs that the practitioners also act as peacemakers, giving advice not to proceed or to settle for a lesser restraint when they perceive that the employer’s claim was unreasonable. 
Indeed, as we have seen, they sell ‘new transactional products’ to the employers.  These are useful services given that the costs of dispute can run high. As well, the lawyers have their own reputation and integrity to protect. Nevertheless, inside knowledge interacts with hard bargaining. The specialists with the inside knowledge are in principle available to anyone, certainly they will work both for employers and employees. However, the party must command resources to enjoy the best of this access and to withstand the pressure from the other side in circumstances where it also has access to resources. 
B Law Reforms 
It is this imbalance of resources, particularly when coupled with the overall sense of uncertainty in terms of the enforcement of restraints, which indicates to us the need for changes to be made. From this research of the legal principles, legal proceedings, cited decisions, commentaries, and particularly the insights and impressions gained from the legal practitioners, we identify the following possible reforms. They are presented, in three broad categories, for further consideration; with space limitations they cannot be argued at length here. 
1 Outlaw restraints 
This is the most radical of possible reforms and, therefore, the least likely to be adopted. We note, nonetheless, that several states in the United States have legislated to make restraints unlawful. While that initiative should resonate with competition and labour policy, governments in Australia are unlikely to take command. Yet, in recent years, the state governments have put substantial resources behind the strategy of creating a clever cluster economy around their capital cities. The economic research suggests that a state government might well gain an advantage for its local economy if it outlawed restraints. There is more local knowledge transfer and knowledge workers may be attracted from other locations where restraints are burdensome. Policy would benefit greatly from a rigorous discussion of this option. It is to be remembered that employers have other remedies against employees should restraints no longer be available. The argument has been made that the employers should make more of the protections for intellectual property or the protections in equity against breach of obligations of confidence or fiduciary duties and duties of good faith and fidelity. The employers also have strategies beyond the law, such as the use of attractive staff retention packages, to protect their interests. On this basis, reliance on the non-compete is regarded as a lazy fallback option. 
2 Limit restraints 
If it is realistic to think that the state governments would see it as a big step to override the common law and take an established power away from individual employers, other reforms can be considered. Legislation, possibly in the form of a national uniform law, could be deployed to place limits on the common law. These reforms include placing upper limits on the length of the period of the restraints. Another would be to require employers to pay employees during the period of the restraint. These reforms are aimed at a better balance between the employers and employees, even if the employer is found to have a legitimate interest to protect. Employees would be less indisposed by the restraints and freer to circulate. 
In the absence of legislative reforms, courts could adhere more vigilantly to the principle that restraints are presumed against public policy. Arguments that give greater legitimacy to business interests, or suggest that wider and longer restraints are reasonable, should be viewed with a very wary eye. Greater specificity in the rules would come at the expense of the flexibility afforded the courts to fit the restraint to the circumstances of the case. Yet the evidence suggests that some courts are allowing the employers too much leeway. The courts could send a much clearer message to employers that they cannot have provisional or partial enforcement. The onus should firmly be on the employer to get the restraint right or face the prospect that any enforcement will be denied. 
A more specific reform, and one both favoured by the US critics and consonant with the traditional common law position, is a policy of no modification to restraints – or, at least, only modification to make good the restraint if the parties can show they had genuine doubts about the appropriate restraint to apply to a particular position.  This approach denies ambit claims and refuses to enforce the lower steps in a cascading or laddered restraint or to read down a wide restraint until it is enforceable. In first drafting the contract, the employer must have used specific terms and have nominated precisely the restraint it wishes to enforce. Otherwise the court will strike down the restraint.  Pivateau argues that employers should nominate precisely the position from which the employee would be barred, the interest that is worthy of protection, and the extent of the restraint that is considered reasonable. 
Such a policy would militate against broad non-competes in contrast to particularised non-disclosure and non-solicitation obligations. The restraint would stand or fall on one nominated period of time and one territory of operation. Cascading clauses are still in the minority. But they will become increasingly popular if the courts do not reject them. It is not so much that they necessarily produce an unfair outcome in the individual case, as that they make it riskier for employees to challenge restraints. 
3 Procedural reforms 
The third category of reforms relates to how restraint clauses, assuming that they are not outlawed, are adjudicated. Again, starting with the most radical option, it would be possible to shift the jurisdiction from the supreme courts and their commercial and equity lists to a more informal, possibly more employment-minded forum, such as the magistrates’ courts or industrial tribunals.  Other jurisdictions, such as the federal industrial tribunal Fair Work Australia, have experience with the award of specific relief.  This reform raises the key question as to whether the restraint disputes should be regarded essentially as employment disputes between employers and employees or as commercial disputes between employing firms (in other words, as failures to deal constructively and fairly with employees or as contests between rivals for valuable capital assets). It would be necessary to keep cases of employment restraints separate from cases of other restraint situations such as the sale of businesses. While the principles could be distinguished, the practical problem is the sometimes variable status of the professional – employee, director, partner, independent contractor. 
An employment tribunal should reduce the expense faced by the parties; a contentious part of this reform would be the exclusion of lawyers from proceedings, except by leave of the forum. However, even if adjudication remains with the courts, there are a number of ways in which costs to the employee may be reduced (as employees tend to have access to less resources, and bear the greater burden of uncertainty, the emphasis is on reducing the costs of the employees). One such reform is to make it a jurisdiction in which the parties bear their own costs. But that reform would not necessarily even the equation. 
While cost penalties continue to apply, as they do now, the courts should be reluctant to award costs against employees when they are granting employers interlocutory relief, approving a settlement or making good a restraint. Or they should at least limit the costs; senior and junior counsel and instructing solicitor makes an expensive team. The courts should assure the employer who is hiring the employee that it may fund the employee’s defence without fear of tortious liability. Further, the courts should be prepared to award full indemnity costs against an employer who litigates an invalid or excessive restraint. If employees are to have access to the courts, they should be confident they will not be left out of pocket. That penalty would also increase the pressure on the employer to be conservative about restraints. One final set of reform options focus on interlocutory procedures, on the basis that it is often the practical determinant of the matter. First, it would be preferable for the courts to require the employer to make out a stronger case before an interlocutory injunction is granted. Some of the courts are already doing so, ‘putting the advocates through their paces’.  Furthermore, the balance of convenience should be inclined towards the employee. The courts should insist that the employers demonstrate they will suffer real harm if the restraint is not observed. They should not protect the employer’s interest if the hardship to the employee is greater. The courts should be realistic about the impacts on the employees. 
A cleaner reform, though a much bigger step to take, would be to withhold interlocutory injunctive relief altogether from employers and require them to go to trial (on an expedited basis) to plead the merits of the restraint. Moreover, at the trial, the employers would be put to their proof of actual damage. This would increase the risks for the employer. It may be argued that employers would be denied an effective remedy for breach of the restraint in those cases where the interest was legitimate. The breach will have occurred by this time. Further, even in those cases in which damages were an adequate remedy, most employees would not be in a position to pay them, though this might change if the employee has established her own firm to compete with the employer. To remove interlocutory injunctive relief altogether, therefore, might shift the balance too far in the employees’ direction. But the prospect of a trial would also increase some pressures on the employee. So perhaps the right path is to improve the interlocutory procedure.