02 November 2013

ASIO and ACC reports

The latest ASIO annual report [PDF] indicates that
In 2012–13 ASIO completed 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued. 
The following statistics are provided for vetting -
Top Secret Positive Vetting 1,789
Negative Vetting Level 2 6,625
Negative Vetting Level 1 19,168
Other 4 
During the reporting period, ASIO issued adverse security assessments in respect of 18 passports, presumably reflected in refusal under s 14 of the Australian Passports Act 2005 (Cth) to issue a passport. (To the surprise of some students, Australian citizens don't have an unfettered right to leave their country with an Australian passport).

ASIO issued one adverse security assessment in relation to a citizenship application.

Overall visa security assessments were up -
Temporary visas 18,748 (up on 12,623 in 2011-12)
Permanent visas 3,681 (from 5,708 )
Onshore protection (Air) 257 (from 319)
Offshore refugee / humanitarian 3,369 (from 687 )
Unauthorised maritime arrivals 3394 (4,760)
ASIO reports completing 130,045 counter-terrorism security assessments. No adverse or qualified counter-terrorism security assessments were issued.

The report offers the following "snapshots" of litigation -
M47/2012 v. Director-General of Security and Others [2012] HCA 46
M47, an unauthorised maritime arrival on the Oceanic Viking vessel, asked the High Court to quash his adverse security assessment on the basis that ASIO had denied him procedural fairness in not interviewing him.
M47 also sought an order that a visa be granted and a declaration that his immigration detention was unlawful. M47 instituted proceedings in the High Court against five defendants, including the Director-General of Security.
On 5 October 2012 the High Court delivered its judgement, finding ASIO had provided procedural fairness in the circumstances of the case. On 29 November 2012 the court remitted M47’s visa application to the Refugee Review Tribunal for further consideration.
S138/2012 v. Director-General of Security and Others
In 2009 ASIO issued an adverse security assessment in respect of S138, an unauthorised maritime arrival in immigration detention. S138 asked the High Court to quash the assessment, compel a visa grant and declare his detention unlawful. In 2012 the court handed down its related M47 decision, which was limited to applicants who had made valid protection visa applications under Migration Regulation 866.225(a). S138 did not fall into this category because he was not eligible to make a valid visa application and had requested the Minister for Immigration and Citizenship exercise his discretion to enable him to do so. This request was declined.
On 7 June 2013, following an advisory opinion by the Independent Reviewer of Adverse Security Assessments, the Director-General issued a non-prejudicial security assessment for S138. DIAC subsequently granted a bridging visa pending consideration of S138’s refugee claim. On 13 June 2013, on the basis of the parties’ consent, the court dismissed the application.
The Queen v. Khazaal [2012] HCA 26
Mr Khazaal was found guilty in 2008 of making a document in connection with a terrorist act and sentenced to 12 years imprisonment. The jury was unable to reach a verdict on the additional charge of attempting to incite others to commit a terrorist act. In 2011 the New South Wales Court of Criminal Appeal (NSW CCA) overturned the conviction and ordered a retrial, to be heard with the incitement retrial. The Crown was granted special leave to appeal to the High Court, on the basis of provisions in the Criminal Code Act 1995 relating to evidence.
On 10 August 2012 the High Court unanimously allowed the appeal of the Commonwealth Director of Public Prosecutions, overturning the NSW CCA decision and reinstating the conviction. The court remitted the matter to the NSW CCA to consider Mr Khazaal’s sentence appeal. On 13 June 2013 the NSW CCA dismissed Mr Khazaal’s appeal against the severity of his sentence. Mr Khazaal may be eligible for release on parole in 2017.
RJCG v. Director-General of Security [2013] FCA 269
ASIO assessed the applicant, an Australian citizen employed by the Commonwealth, to have engaged in acts of foreign interference by providing information to foreign intelligence officers. ASIO issued an adverse security assessment recommending revocation of the applicant’s security clearance.
On 22 August 2012 the AAT affirmed ASIO’s decision. The applicant appealed this decision to the Federal Court, which will hear the matter in November 2013.
TCXG and Director-General of Security and Anor [2013] AATA 284
On 21 June 2012 ASIO issued an adverse security assessment in respect of TCXG, and the Minister for Foreign Affairs consequently refused TCXG’s application for an Australian passport. ASIO assessed that the applicant adhered to an extremist interpretation of Islam which condoned the use of politically motivated violence. ASIO assessed that TCXG’s extremist actions involved encouraging, fostering and supporting extremist activities, including the use of politically motivated violence. On 10 May 2013 the AAT affirmed ASIO’s 2012 adverse security assessment and DFAT’s passport refusal.
NBMW v. Minister for Immigration and Citizenship [2013] FCA 651
The applicant, an unauthorised maritime arrival, challenged the ASIO adverse security assessment. On 12 September 2012 the AAT affirmed the security assessment. The applicant appealed this decision to the Federal Court but then discontinued that appeal and sought instead to join the Director-General to the separate Federal Court action against the Minister for Immigration and Citizenship. The applicant claimed the security assessment was not lawful or validly made because ASIO had denied NBMW procedural fairness.
On 5 July 2013 the Federal Court dismissed the application to join the Director-General to the separate proceedings.
The Australian Crime Commission (ACC) has meanwhile released its report on organised crime in Australia [PDF]. (Past reports are noted herehere and here.)

It is usefully read in conjunction with 'Going Dutch? Comparing Approaches to Preventing Organised Crime in Australia and the Netherlands' (RegNet Research Paper No. 2013/12) by Julie M. Ayling and 'We Get the Crime We Deserve: Exploring the Disconnect in ‘Law and Order’ Politics' by Rick Sarre.

Sarre comments that -
Every dollar that Australian governments spend on keeping people in the criminal justice system is potentially a dollar that could have been spent on initiatives that have been shown to stem the flow of potential offenders and re-offenders. These initiatives include employment incentives, community capacity-building, drug treatments, post-release services, therapeutic courts and intervention for ‘at risk’ individuals and their families. Intriguingly, governments do spend significant amounts of money on these sorts of programs, but they seem reluctant to advertise the fact that they are assisting those whom many would class as ‘the undeserving’. This is an odd and expensive political disconnect. This paper explores a number of fallacies that persist in popular thinking that have the effect of widening this disconnect. It offers a number of paths forward for justice policy-makers and social planners in order to address the malaise.
Ayling's article contributes -
to the growing literature on organised crime prevention by examining the approaches of two countries, Australia and the Netherlands. In many respects these countries are similar. They also have many organised crime problems in common. But their responses to those problems have been quite distinct. The Dutch administrative approach has been hailed as both unique and successful, while the Australian approach, primarily a reactive criminal law-based response, has encountered a storm of criticism. The article compares the two approaches and addresses the questions of whether and what Australia should learn from the Dutch approach.
Ayling suggests eight lessons -
Lesson 1: Set clear goals and benchmarks.
Setting goals and benchmarks is foundational to the establishment of any new policy framework. A very clear idea of what the new approach is designed to achieve is crucial. Similarly, it is crucial to understand what one is dealing with. This requires good empirical research into the nature, costs, harms and distribution of organised crime. Such research also provides benchmarks against which the success of any new approach can be evaluated. Evaluations against benchmarks provide the foundation for future adjustments to increase the framework’s effectiveness and can help legitimate any new measures, which may be particularly important where there are broader public impacts (see below). In the Dutch case, the implementation of the administrative approach was preceded by research into the extent and nature of organised crime in Amsterdam, and particularly in the city centre. The clarity and reliability of these studies as threat assessments has, however, been questioned. Nelen and Huisman (2008) note that no clear definition of organised crime was employed, making evaluation of the success of the approach difficult. The framework developed also relied heavily on the New York example of racketeering, which involves a quest by criminal groups for political and economic power over certain sectors, when in fact the problems faced in Amsterdam were (and still are) more concerned with vice and drugs. As a result, the administrative approach has needed ongoing adjustment (for example, the inclusion of new sectors). Australia has the opportunity to learn from the Dutch experience, to conduct research at a measured pace into its own organised crime scene without preconceptions, and to set appropriate goals and benchmarks on the basis of that research. This would give any new system the greatest possible chance of effectiveness right from the beginning.
Lesson 2: Have realistic expectations
An administrative approach will not ‘solve’ the problem of organised crime. For one thing, its application is limited to circumstances where organised crime seeks facilitation from public agencies. However, not all organised crime needs such facilitation. Furthermore, while an administrative approach would seem to clearly prevent the facilitation of organised crime by the state, establishing causality between preventing facilitation and having an impact on organised crime’s power and activities is difficult. So far, in the Netherlands, any impacts on organised crime can be considered only ‘plausible,’ rather than ‘proven’ (Nelen and Huisman 2008). Expectations may therefore need to be pared back, at least in the short term.
Nelen (2010: 97) suggests that the expectation for the Van Traa project and Emergo, that that the Red Light District can be transformed into a “decent and transparent business area”, is to some extent naïve because it “neglects the dynamics and modus operandi” of the market in vice operating there, which relies on a symbiotic relationship between the legitimate and illegitimate spheres. One is reminded of von Lampe’s (2011) observations that to properly capture organised crime settings, a situational model needs to incorporate sensitivity to the social, economic and political context. Although von Lampe’s comments were directed to the national level (that is, juxtaposing postmodern societies with societies in transition and developing countries), this observation could equally apply to the social and economic contrasts between city districts or regions.
Lesson 3: Build in flexibility and limits
Flexibility is necessary to cope with the evolving nature of both organised crime and understandings of it that necessarily alter with research and experience. However, a clearer understanding of the problem should also suggest the placement of limits on the application of a new approach to avoid the kind of net-widening effects referred to by Huisman and Koemans (2008), such as the expansion of sectors covered beyond those where the influence of organised crime can be directly observed.
Lesson 4: It’s not going to happen overnight
Multi-agency working is fraught because every agency has its own culture and conception of its ‘territory’ (sovereignty). Shared goals and explicit commitment from leaders will help, but distrust is to be expected, especially when information has previously been the exclusive domain of a particular agency such as the police. Nelen and Huisman note that the evaluation of the Van Traa project turned up information sharing as a “bottleneck” and state (2008: 210) that “Up until now, the various partners have predominantly paid lip service to the administrative approach, but have not integrated this strategy in their own working processes.” It may be necessary, initially at least, to mandate a detailed system of information exchange, not just a system for information collection with an expectation of sharing. Even then, real trust between agencies, although essential for an effective system, is likely to be based largely on informal connections, will need time to grow, and might only do so once positive results have accrued.
Lesson 5: Be prepared to be pragmatic
The stories about compensating Fat Charles for his prostitution windows and the Hells Angels for their clubhouse land suggest that cleaning out organised crime using administrative measures might pose ethical dilemmas, such as whether crime should be allowed to pay. How much the bending of principles could be tolerated needs careful consideration.
Lesson 6: Consider the red tape
One cannot expect the adoption of a whole new approach to be either easy or cheap. Bureaucratic complexities are bound to arise. The tension between increasing ‘red tape’ for businesses in order to combat organised crime and adhering to a ‘better regulation’ agenda will need resolving.
Lesson 7: Expect (and plan for) the unexpected
Unintended consequences are likely if not inevitable. As well as being realistic about the likelihood of positive results from a new framework, it is prudent to consider the possibility of undesirable impacts. For instance, Nelen (2010) notes that parts of the sex industry moved underground as entrepreneurs decided that compliance with Van Traa/Emergo requirements was too difficult, and speculates that change to less regulated ways of working, such as escort businesses, could occur. He reports that this has already happened in relation to money lending, with entrepreneurs reacting to tightened banking controls turning to informal lending systems (people like Fat Charles), which in turn has increased opportunities for money laundering. Another example of an unintended consequence is the concentration of ownership of industry sectors, referred to earlier. Attention needs to be paid to guarding any new framework against crimogenic effects.
Lesson 8: No panacea
An administrative approach will not necessarily quieten the debates about privacy, procedural fairness and punitiveness that have accompanied the introduction of antiassociation laws in Australia. These issues may still arise with the implementation of an administrative approach, as they have in the Netherlands (Council of Europe 2003). As Huisman and Koemans (2008: 142) comment: “The consequences of these administrative measures can also be more far reaching than those of criminal sanctions, while the safeguards of due process are considerably less so.” Careful consideration of these issues – how and to what extent to protect privacy, how to ensure procedural justice and whether punitiveness is a live issue – should be part of any general planning for adopting a new approach based on administrative measures.

Privy Council

'The Empire's Sentinels: The Privy Council's Quest to Balance Idealism and Pragmatism' by Jonas-Sébastien Beaudry in (2013) 1(1) Birkbeck Law Review 15 considers 
the Judicial Committee of the Privy Council’s quest to balance Western ideals and pragmatic diplomacy. It surveys some critiques and praises of the Judicial Committee coming from Canada, Australia and India, in order to delineate the attitudes, strategies and beliefs adopted by the Law Lords when they sat on the Judicial Committee of the Privy Council during its most influential period, that is to say, from its creation in 1833 until the decline of the British Empire in the 1950s.
The text is divided into four sections. The first section analyses Lord Haldane’s insightful assessment of the role of the Judicial Committee of the Privy Council within the Empire, and of the way the Lords perceived or should have perceived themselves when sitting on the Privy Council. The three following sections consists of external critiques of the Board’s interventions in three dependencies: one colony whose Constitution was drafted and negotiated by the overseas subjects and granted almost full independence (Australia), one colony whose Constitution was drafted in London and was not ratified by the overseas subjects (Canada), and one colony that did not have its own Constitution and whose foreign subjects did not initially partake in the legal system (India). The distinctive characteristics of each dependency will allow for a multi-levelled critique of the Lords’ conception of their institutional role, hopes and efforts.

Consent and T&C

'An Experimental Test of the Effectiveness of Terms & Conditions' (Northwestern Law & Economics Research Paper No. 13-32) by Zev J. Eigen comments that
Requiring individuals to consent to “terms & conditions” is the overwhelmingly dominant strategy used to try to curb unauthorized use of products like motion pictures and music. This study is the first to employ a randomized controlled behavioral experiment testing whether this strategy is as effective as other means of achieving this goal. Individuals randomly assigned to either a “terms and condition” (“T&C”) frame or alternative frames (promise-keeping, trust, threat, naked request, and a control) were presented an opportunity to take an online presidential election poll more than once (and receive additional remuneration each time they did), even though they were made aware that they were not authorized to do so. The T&C frame was the least effective at keeping subjects from taking the poll more than once. Asking individuals to promise not to behave in the undesirable way, or signaling trust that they would not behave in the undesirable way were the best frames for curbing unauthorized multiple poll-taking.
Eigen reports that
The findings suggest that terms and conditions may be a suboptimal means of stymying undesirable behaviors like taking a survey more than once or the comparable real world behavior of unauthorized use or distribution of music or other media. Only 65% of subjects randomly assigned to the terms and conditions frame took the survey once and then stopped. Compared to the higher rates of other frames—especially the promise frame (77%), and the trust frame (80%)—the findings suggest that the behavioral justification for using terms and conditions deserves reconsideration. It is less clear which of the alternatives to terms and conditions should be used. Some evidence from this study suggests that further research is necessary to understand what variation exists across contexts that makes the frame appropriate to the quality of the unwanted behavior being curbed. In the instant study, one finding in particular makes this question salient. 27% of the trust frame multiple survey-takers were onetime recidivists, as compared to 49% of the T&C multiple survey-takers. This may be an odd result—why would subjects who reject the trust plea behave less compliantly than those who reject the terms and conditions means of attempting to restrict behavior? This research does not offer an answer to this question. One may speculate that this is a function of reactance theory (Brehm 1966) associated with the rejection of the plea. The more negatively one feels as a result of the decision to reject the frame, the greater the subjects’ need to self-compensate in the way of taking the survey as many times as possible. However, the instant study does not address this suggested mechanism.
While the promise frame generated a higher compliance rate than the T&C frame – 77.4%, as did the trust frame (80%), it is not clear from the results of this study that promise or trust worked better than other options for preventing the unwanted behavior—specifically, the naked request frame. This could be a function of the experiment being underpowered. Further empirical work is necessary to test whether this is the case. It could also be that a naked request not to take the survey more than once is inherently interpretable as the researchers placing their trust in the subjects not to take the survey more than once. There is less of an explanation for the relative success of the fraud frame.
It also seems that political orientation, choice of president, and gender are measures not associated with compliant behavior. However, age and disagreement with the need for voter identification laws are associated with greater compliance. Both of these associations present key bases for future research that would directly impact the form-contracting arena. In terms of the voter identification question, this question could be regarded as a proxy for measuring the extent to which subjects believe that others cheat, or that cheating of a more serious kind than is being measured is socially acceptable. This may offer a useful measure for future research because it is significantly easier to measure the degree to which people think that others engage in the kind of dishonest behavior of interest to researchers. It also harmonizes with existing research that suggests that people are more likely to behave dishonestly when they perceive that behavior as being socially acceptable (McCabe and Trevino 1993). In the context of downloading media illegally, this finding could not be more salient.
Lastly, there appears to be some preliminary evidence to support the existence of cohort effects in the results of this study. How much faith one puts in the specific age related findings notwithstanding, it is worth noting that subjects respond to the frames differently by age cohorts. Terms and conditions seemed to motivate subjects over 37 differently from subjects under 30, especially those 18-21. Further research would help illuminate whether and to what extent the preliminary findings are replicable by age cohort. This could be extremely important as our population ages, and more individuals become normalized and perhaps desensitized to terms and conditions. Contracts are social artifacts (Suchman 2003). They likely carry different meanings for individuals who have more experience with negotiated instruments than those who are more accustomed to non-negotiated instruments as the normal way of governing exchanges.

Privacy as property

Nadezhda Purtova's 'Illusion of Personal Data as No One's Property: Reframing the Data Protection Discourse' in Joseph A. Cannataci & JP Mifsud Bonnici (Eds) Online Privacy: are we consenting to our future? Explorations in current privacy issues (Rome: Edizioni Scientifiche Italiane) argues that
 the possibility to frame a European (and for that matter, any other) data protection regime without dealing with the issue of property rights in personal data is an illusion. The paper shows that - as long as personal data bears high economic value - the real question is not ‘if there should be property rights in personal data’, but ‘whose they should be’.
This paper offers a new perspective on the nature of personal data as a resource: personal data is a system resource comprising not merely individual pieces of information pertaining to identifiable individuals, but an entire ‘ecosystem’, comprising interconnected but separate elements: (a) people themselves whose existence by itself generates personal data, (b) electronic platforms designed to ‘capture’ people by offering them unique electronic services and harvesting data of their users at the same time; and (c) personal data not collected from people directly but inferred on the basis of personal data available earlier.
Considering personal data as a system resource helps demonstrate that the present level of development of Information technology and of markets of electronic services have made personal data a rivalrous resource. This conclusion has effectively refuted the non-rivalrousness premise -- one of the core grounds on which many of anti-propertization arguments are built. By harvesting personal data via electronic platforms it has become possible for the Information Industry actors to effectively exclude others - both individuals and competing fellow Information Industry actors - from access to personal data and enforce their property claims on this new resource.
The debate around property rights in personal data both in the European and American privacy discourse is much like a plot of a ghost novel – at the onset everybody talks about it, but few believe in it, until it is no longer possible to deny its presence. Proposals to introduce property rights in personal data have emerged in the United States as early as the 1970s (Westin, 1967), and have been subject of academic discussion – at times less intensive – ever since, with the European scholars joining the debate in the early 2000s. Roughly, one part of the ‘propertization’ camp reasoned that the law should acknowledge the de facto commodification of personal data that occurred as a result of a switch to behavioural marketing and made personal data ‘new oil’ of the modern economy; the other part considered propertization mainly as a means of giving back to the individual control over data pertaining to him (Janger, 2003). Some arguments have been made against propertization, a predominant anti-propertization argument being that informational privacy is a common good and propertization facilitating market exchange would not be able to secure it (e.g. Regan, 2002). In response, other scholars have offered property models consistent with and arguably enhancing informational privacy (Schwartz, 2004; Rule, 2007; Lessig, 2006, 1996; Janger, 2003, etc.).
Next to the Information Industry drawing their value from access to personal information (Finger, 2013) and claiming property rights in consumer profiles and databases (e.g. BBC, 2012), other business models have emerged claiming to help individuals – for a fee – to manage and reassert their ‘ownership of personal data.’ Personal data markets and property rights in personal data have become popular subjects of academic research. While before data protection and informational privacy conferences would have included academic papers on propertization only occasionally, in 2012-2013 in Europe alone the growing interest in the topic is signified by several large conferences and workshops dedicated solely or in a big part to the issues of data markets and economic value of personal data.
However, despite these developments, to the author’s best knowledge, no jurisdiction either in the US or Europe has adopted or comprehensively considered the option to introduce property rights in personal data. The notions of economic value and ownership of personal data have become routine in the realities of data processing practices and data protection and information systems scholarship. Paradoxically, the preparatory documents released on January 25, 2012 in connection with the announced EU data protection reform: the Proposal for a Regulation on the protection of the individuals with regard to the processing of personal data and free movement of such data and accompanying Commission’s reports, Communication and Impact Assessment, do not contain any considerations regarding property in personal data. Reportedly, member states have discussed the idea of propertization at some point but the discussion has stumbled over the unconventional nature of personal data as an object of property rights and has led to no conclusive results mentioned in the Reform documents.
The conclusion of this article is that one ought not delay or avoid resolving the issue of property in personal data in the context of the current data processing realities. Property rights in the personal data should be given to an individual.
This follows from the following theses: Maintaining that personal data is res nullus or nobody’s property and is in ‘public domain’ is an illusion not viable in the information-driven economy. Even more so, maintaining status quo where no ownership in personal data is formally assigned equals assigning ownership to the Information Industry and leaving an individual defenceless in the face of corporate power eroding his autonomy, privacy and right to informational self-determination.
A note has to be made at this point that the term ‘property rights’ as used in this paper is not attached to any one jurisdiction, but derives from studies in comparative European property law, to be understood as any interest in an object – tangible or intangible – that is directed against the entire world, i.e. has a so-called erga omnes effect. Alienability of such an interest is therefore not a necessary defining characteristic of property rights.
The argument proceeds as follows: Section 2 offers a new perspective on the personal data flow in light of the economic theory of formation of property rights, concluding that the existing data protection regime in Europe does not assign default entitlements in personal data clearly (Section 2.2) and thus has enabled the Information Industry to capture and effectuate property rights in personal data. The most significant parts of the property rights analysis offered are the mapping of the modern personal data flow and subsequent anatomy of personal data as a system resource (Section 2.3.2) and the part refuting the premise dominating the propertization of personal data debate – that personal data is not rivalrous (Section 2.3.3). Section 3 concludes with a discussion of implications of the new framework of analysis for the data protection discourse, and argues in favour of granting data subjects with property rights in their personal data.

01 November 2013

Myriad again

Another gene patents article, this time 'Patently a Problem? Human Gene Patenting and Its Ethical and Practical Implications' by Stephanie Constand in (2013) 13(1) QUT Law Review 100-125 which comments
The issue of gene patenting has received renewed interest with the recent decisions of both the Supreme Court of the United States and the Federal Court of Australia in regards to the patentability of isolated genetic material. The latter case, Cancer Voices Australia v Myriad Genetics Inc, upheld the validity of a patent over the isolated BRCA1 gene and highlighted the wider implications of gene patenting within Australia. This article examines the legal issues arising from that judgment with respect to the ‘manner of manufacture’ requirement for patentability. Additionally, it analyses the ethical consequences of gene patenting and the impact of the monopolistic market control that is facilitated by patents upon the delivery of biogenetic healthcare services, industry investment and the dissemination of research results. It will further consider community concerns regarding limitations in access to genetic testing and treatment and will suggest means of redressing such concerns.

Driveoffs and Privacy

Two years ago I noted controversy in Western Australia about the state government's provision to private sector entities of vehicle registration information.

Today's Melbourne Age reports that
A Victorian service station company has won the right to access the identity of people who drive away without paying for fuel.
APCO, which operates 23 service stations across Victoria, won its case in the Geelong Magistrates Court on Thursday, allowing it to access VicRoads driver details to demand payment. ... As of July 1, police stopped investigating fuel drive-offs unless it could be proven the car was stolen or had stolen number plates.
If a service station cannot provide evidence of criminal behaviour or intent - for example, if someone forgot to pay - the incident would be handled as a civil debt, with the onus being on the service station to contact the driver and seek payment.
Mr Anderson said the only recourse available to service stations was to obtain driver details based on number plate records from VicRoads, which is governed by strict privacy laws and does not release the data.
However, Thursday's court ruling means APCO can now pursue "about 35 incidents of unpaid fuel" through civil proceedings. Mr Anderson hoped the case would set a precedent for other retailers in the same position.
"The policy is flawed. The issue with this is that police still consider it a crime to enter any other retail space - such as a shop or a supermarket - and take something without paying, yet it is not considered a crime to take petrol without paying, according to their new policy," he said.
"Although we are sympathetic with regards to police and their time, and want them dealing with more serious crime, this is an issue which can't be ignored. It's unsatisfactory to leave the industry in the lurch like this when we are willing to work with the police." ....
Police spend approximately 18,000 hours a year investigating about 5000 petrol drive-off incidents.


'Surveillance technology and territorial controls: governance and the ‘lite touch’ of privacy' by Darren Palmer & Ian Warren (2012-2013) Novatica - a Spanish ICT journal - argues [PDF]  that "privacy has limited influence on the use of new and untested surveillance technologies in contemporary Australian law enforcement, in part due to the construction of current privacy laws and oversight principles".

In discussing the "night-time economy" the authors consider use of ID scanners by nightclubs and other venues. They comment that
The considerable growth of surveillance technologies, dataveillance and digital information processing has occurred across many domains, including the night-time economy. We explore a particular technology (ID scanners) and the connections between this form of surveillance and associated database construction with the broader use of new forms of territorial governance. In turn, we argue that privacy, at least in the context of Australia, has limited influence on the use of new and untested surveillance technologies in contemporary law enforcement. In part, this is due to the construction of current Australian privacy laws and oversight principles. We argue this in itself does not solely account for the limitations of privacy regimes, as recent Canadian research demonstrates how privacy regulation generates limited control over the expansion of new crime prevention technologies. However, a more telling problem involves the enactment of new laws allowing police and venue operators to exclude the undesirable from venues, streets and entertainment zones. These developments reflect the broader shift to governing through sub-sovereign territorial controls that seek to leverage many current and emerging surveillance technologies and their normalisation in preventing crime without being encumbered by the niceties of privacy law.
That research is deployed in the December 2013 AIC 'Trends & Issues' paper noted here.

Hatefulness and the ACL

In Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 the Supreme Court of New South Wales has made a determination on claims by the controversial Fredrick Toben that Greens Senator Christine Milne engaged in misleading and deceptive conduct in remarks to a journalist that were published in The Australian.

Unsurprisingly the Court held that Senator's remarks were not undertaken in the course of any business, trade or profession and were thus incapable of being misleading and deceptive conduct in terms of the Australian Consumer Law (ACL).

Toben had unsuccessfully relied on the ACL last year in Toben v Jones [2012] FCA 1193.

In Jones v Toben [2009] FCA 354 the Court commented that
The Courts have held, but his conduct shows he does not accept, that the freedom of speech citizens of this country enjoy does not include the freedom to publish material calculated to offend, insult or humiliate or intimidate people because of their race, colour or national or ethnic origin. His conduct has been proved to be wilful and contumacious because he has steadfastly refused to comply with a law of the Commonwealth Parliament and refused to recognise the authority of this Court.
The litigation followed the 5 October 2000 finding by the Human Rights & Equal Opportunity Commission that Toben , representing "the Adelaide Institute",  had engaged in conduct rendered unlawful by s 18C of the Racial Discrimination Act 1975 (Cth) by publishing on the internet certain material that the HREOC found to be "racially vilificatory". The Commission's finding was reflected in Jones v Toben [2002] FCA 1150. Dowsett J in Toben v Jones [2002] FCAFC 158 commented that
The allegations made by the [Toben] against Branson J were completely without demonstrated substance and based entirely upon his own unreasonable misinterpretations of quite innocent statements by her Honour. The measured tones in which he made his attack did nothing to conceal its complete lack of substance. It was, in my view, outrageous in its condescension. Such an attack upon the intellectual capacity and integrity of a judge of a superior court is, in my experience, virtually unprecedented.
In the current litigation Toben is taking defamation action against Clive Mathieson (editor of The Australian), Christian Kerr (the journalist under whose by-line the articles were published) and Senator Christine Milne, the leader of the Australian Greens Party, to whom several direct quotes are attributed in the article.

McCallum J comments that
The explanation for the duplication of proceedings appears to be the existence of a statutory cap on the amount of damages for non-economic loss that may be awarded in defamation proceedings: see s 35(1) of the Defamation Act 2005. That provision has been interpreted as imposing a single cap in any single set of proceedings even where there is more than one matter complained of in those proceedings: Davis v Nationwide News Pty Limited [2008] NSWSC 693 per McClellan CJ at CL at [8] to [9]. The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2) [2013] NSWSC 1064 at [4].
Whilst the two sets of proceedings are travelling together, the present application concerns only the proceedings in which Senator Milne is a defendant (proceedings 200128 of 2013). In those proceedings, Senator Milne filed a notice of motion on 22 August 2013 moving the court for an order that the proceedings as against her be stayed or the statement of claim struck out. At that stage, the action against Senator Milne was based on the contention that she was jointly liable as a publisher of the whole of the article. The basis for the application to have the statement of claim struck out was the principle stated in my decision in Dank v Whittaker (No 1) [2013] NSWSC 1062. In that case I held that, where a person contributes to an article but is not alleged to have had any control over the publishing process, that person is not liable as a publisher of the whole of the article unless he or she has assented in some way to its final form (at [26]).
The plaintiff responded to the notice of motion by serving a proposed amended statement of claim. The amended pleading cures the defect in the manner in which the element of publication is pleaded in that Senator Milne is now sued only for publication of the words attributed to her in the article and the republication of those words by the newspaper. She is no longer sued on the article as a whole.
Separately, however, the proposed amended statement of claim seeks to add a cause of action against Senator Milne alleging that she engaged in misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law. Dr Toben requires leave to amend the statement of claim at this stage of the proceedings, the original statement of claim having been filed on 1 July 2013, more than 28 days ago: see r 19.1 of the Uniform Civil Procedure Rules 2005. Accordingly, the issue ultimately brought forward by Senator Milne's notice of motion was whether the plaintiff should have leave to file the proposed amended statement of claim. This judgment determines that issue.
The judgment continues
Dr Toben's proposed claim for misleading or deceptive conduct is pleaded in the following terms:
2D Further and in addition on or about 20 June 2013 the third defendant in trade or commerce (to wit in her profession as a politician) engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions of Section 18(1) of Schedule 2 of the Australian Competition and Consumer Legislation.
(A) The third defendant represented to the second defendant and/or other journalists of and concerning the plaintiff:
(a) The plaintiff engaged in the fabrication of history.
(b) The Plaintiff spread and engaged in anti-Semitism.
(c) The plaintiff's conduct in denying the holocaust is abhorrent and should be condemned universally.
(d) The plaintiff is a holocaust denier.
(e) Holocaust denials have no place in Australian Society.
(f) The plaintiff is an anti-Semite.
(B) When the third defendant made the representations above referred to she knew they would be or would likely to be republished in "The Australian" and subsequently the said representations were republished in an article in "The Australian" of 21 June 2013.
(C) The said representations were misleading and deceptive or capable of being misleading or deceptive because:
(a) The plaintiff did not engage in fabrication of history.
(b) The plaintiff did not spread and engage in anti-Semitism.
(c) The plaintiff is not an anti-Semite.
(d) The Plaintiff is not a holocaust denier.

29 October 2013


Ireland's Copyright Review Committee (CRC) has released its report [PDF] about updating that nation's copyright regime.

The CRC was established in 2011, with the following terms of reference
1. Examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation.
2. Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation.
3. Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.
4. If it transpires that national copyright legislation requires to be amended but cannot be amended (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on copyright and related rights and other international obligations), make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation.
Its recommendations are summarised as -
The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links. The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.
The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including formatshifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.
Copyright Council of Ireland
A central recommendation is the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures provided (section 3 of Bill; and the Schedule). This should be based on principal objects that ensure the protection of copyright and the general public interest as well as encouraging innovation; and it should have a broad subscribing membership and a Board drawn widely from the Irish copyright community. It should provide education and advice on copyright issues, advocate both nationally and internationally for developments in copyright policies or procedures, and work towards solutions on difficult copyright issues. It should be able to establish a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works).
The Courts and the Controller
In parallel, we recommend that the Small Claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court’s jurisdiction, and that a specialist intellectual property court also be established in the Circuit Court (section 4 of the Bill). We also recommend that the Controller of Patents, Designs and Trade Marks be renamed the Controller of Intellectual Property (section 5 of the Bill). Moreover, we strongly recommend that these new Courts and the Controller’s Office be properly resourced. If they are not, all of this new architecture will be for naught. In these new structures, it will still be for the Minister to make policy, for the Controller to implement that policy and to regulate and administer the State’s formal intellectual property infrastructure, for the Council to provide education and advice and to run its various services, and for the Courts to provide ultimate resolution of disputes.
Innovation and Fair Use
We recommend the introduction of tightly-drafted and balanced exceptions for innovation and fair use. Given the significant nature of these changes, we specifically recommend that the Minister’s power to determine the date on which they come into operation should be expressly reiterated in these sections, so that they may come into effect on a graduated basis at appropriate times. As to the innovation exception, we recommend that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work (section 21 of the Bill).
As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. We recommend that the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors (section 29 of the Bill).
Interconnectedness by linking is at the very heart of the internet, so we recommend that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. We further recommend that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words (section 14 of the Bill).
A key means by which copyright drives innovation is by incentivising rightsowners and content-creators to produce copyright works. We therefore recommend a full range of graduated and proportionate civil remedies, for infringement of copyright, of performers’ rights, and of recording rights. Hence, at one end of the scale, unintentional breaches are not met with significant awards of damages, and that, at the other end of the scale, the most serious breaches can be appropriately dealt with by the award of restitutionary, exemplary or punitive damages (section 8 of the Bill).
The position of photographers was a particular concern at both public meetings and in both rounds of submissions. We therefore recommend explicit protection for digital watermarks and other metadata applied to photographs. To this end, we provide a definition of metadata (section 2(2) of the Bill); and we recommend not only that copyright protection be extended to metadata, but also that its removal should amount to an infringement of copyright (section 9 of the Bill).
Technological Protection Measures
We also recommend various ways by which the legal rules underpinning technological measures for the protection of copyright or for the management of copyright information can be strengthened. In particular, we recommend that rightsowners can seek remedies for infringements of rights protection measures even where the work has been licensed, and that a circumvention of a technological protection measure should be actionable at the behest of the rightsowner as though it were an infringement of copyright (section 10 of the Bill). On the other hand, we also recommend that users should have an effective remedy where the technological protection measures prevent a user from performing an exception permitted by the legislation (section 10 of the Bill).
We recommend that the statutory provisions relating to transient and incidental copies be amended to come more closely into line with the approach being taken by the Court of Justice of the European Union (CJEU) (section 13 of the Bill). However, in advance of the outcome of a current EU Commission process,17 we do not recommend amending the existing conduit, caching and hosting immunities or introducing new immunities relating to search, framing, and cloud computing.
Users and Consumers
Innovation is increasingly an iterative and interactive process in which users play increasingly important roles, especially online, where technology is making it increasingly easier for users to innovate. To facilitate this, we recommend amending the definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world (section 16 of the Bill). We also recommend the introduction of the full range of exceptions permitted by EU law. Five of these relate to private use: reproductions on paper for private use; format-shifting; back-ups; parody; and non-commercial usergenerated content (all in section 16 of the Bill). Other recommended exceptions relate to news (section 15 of the Bill), religious or official celebrations (section 16(3)(b) of the Bill), and public administration (section 20 of the Bill). Finally, all users and consumers will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void (section 19 of the Bill).
Education and Research
To incorporate the range of exceptions in respect of education permitted by EU law, we recommend that the existing education exceptions relating to “research or private study” should be amended to cover “education, research or private study”, that those relating to “instruction and examination” should be amended to cover “education and examination”, and that such exceptions should extend to distance learning and the use of material available online (section 17 of the Bill). We also recommend that these developments should be subject to a licence override, and that they should be balanced by a definition of “education” which explicitly confines these exceptions to formal education in the non-commercial sector (section 2(2) of the Bill).
Similarly, given the potential for new discoveries from existing data, very significant social benefits stand to be gained from text-mining and data-mining (hereafter called “content-mining”), and we therefore recommend exceptions relating to content-mining (section 27 of the Bill) and to digital research and computer security (section 28 of the Bill).
To incorporate the full width of the exception in respect of disability permitted by EU law, we recommend that the existing exception for accessible personal copies for persons with a disability should (subject to a licence over-ride) be extended to permit multiple accessible copies for persons with a disability to be made by designated bodies. We also recommend that the Minister may provide that publishers should be given an anticipatory duty to retain intermediate electronic versions of works for the purpose of creating accessible copies (section 18).
We recommend that references in the current legislation to “libraries and archives” be replaced with a more generic reference to “heritage institutions” (as defined in section 22(2) of the Bill), that such institutions should be able to format-shift works in their collections for archival or preservation purposes, to display such works on terminals in the institutions, and to use them in public lectures and in catalogues relating to exhibitions (sections 22 and 23 of the Bill). We also recommend that there should be a rebuttable presumption that where a physical work is donated or bequeathed, the copyright in that work passes with the physical work itself (section 24).
In keeping with the digital focus of much of the Bill, we recommend that the existing provisions relating to legal copyright deposit should be extended to digital publications, so that copyright deposit institutions should be able to decide which digital publications they wish to claim and how they wish to claim them, in a process that is as similar as possible as the existing provisions. We also recommend that such institutions should be able to make copies of our online digital heritage by reproducing any work that is made available in the State through the internet (section 26 of the Bill provides for digital deposit; section 25 of the Bill provides for parallel changes to the existing provisions).
Other Recommendations
We recommend that there should be a new, technology-neutral, definition of “broadcast” for copyright purposes, and (for the avoidance of doubt) that the existing cable programme exceptions should not capture internet transmissions (section 11 of the Bill). We recommend that the sound track accompanying a film should be treated as part of the film (section 6 of the Bill). We recommend that there should be a provision which clarifies that copyright exceptions do not apply to computer programs, as they are subject to their own regime (section 12 of the Bill). We also recommend that an anomaly in the current legislation, by which certain unpublished works might gain a perpetual copyright, should be removed (section 7 of the Bill).
Penultimately, to ensure that there is a single authoritative statement of all Irish copyright legislation, we recommend that the Copyright Council should be able to propose such restatements to the Attorney General (section 12 of the Schedule). Finally, we recommend18 that there should be a review of the operation of the changes made by the Bill five years or so after it comes into force (section 20 of the Bill).

Wild Things

'Animal Rights and Environmental Terrorism' by Steve Cooke in (2013) 4(2) Journal of Terrorism Research comments that
Many paradigmatic forms of animal rights and environmental activism have been classed as terrorism both in popular discourse and in law. This paper argues that the labelling of many violent forms of direct action carried out in the name of animal rights or environmentalism as ‘terrorism’ is incorrect. Furthermore, the claim is also made that even those acts which are correctly termed as terrorism are not necessarily wrongful acts. The result of this analysis is to call into question the terms of public debate and the legitimacy of anti-terrorism laws targeting and punishing radical activism. 
In public discourse and in positive law many forms of illegal animal rights and environmental activism have come to be labelled as terrorism. However, analysis of the concept of terrorism, and of the actions of animal and environmental activists, reveals this to be in large part an error. Although there is a great deal of conceptual wrangling over the correct application of the term terrorism, it is often defined either in terms of the intentions of terrorist agents or by reference to the moral status of the victims of terrorist acts. I refer to these two conceptions of terrorism as the non-moralised and moralised accounts of terrorism respectively. Non-moralised accounts tend focus on the intentions of agents carrying out violent acts to strike fear as a strategy for provoking political change. To establish that an act is terrorism does not require that one make an a priori judgement about the morality of those acts. Moralised conceptions, on the other hand, include the innocence of its victims as part of the definition of terrorism. Under both moralised and non-moralised conceptions of terrorism, most violent and illegal acts carried-out in the name of non-human animals or the environment should not be labelled as terrorism. The reason for this is that under the non-moralised account most illegal acts carried out by animal and environmental activists carry the wrong intentions to be classed as terrorism. And, under the moralised account, the innocence of the objects of so-called terrorist acts can be shown to be questionable. These conclusions challenge orthodox views of animal rights and environmental ‘terrorism’. They also call into question the legitimacy of laws which target animal rights and environmental activism, particularly those which classify violent activism as terrorism, and they should cause us to think again about the terms of public and political discourse. Beyond that, the conclusions also force us to reconsider whether violent animal rights and environmental activism can be classed as morally wrong as a class of acts. 
Cooke argues that
Presumably, the case for labelling animal rights activists ‘terrorists’ hinges on the assumption that the targets of potential terrorism pose no threat to human beings. But why should it just be the case that only harms or threats to humans count for the purpose of establishing innocence? We would not consider a person who cruelly kicks a dog for pleasure to be innocent? Indeed, it is likely that we think the dog kicker to be non-innocent because the harms done to the dog are bad for the sake of the dog itself, and not because they illustrate poor character or make the dog-kicker more likely to harm humans.(For a fuller discussion on this issue see Cooke, 2011) The animal rights activist acts on the basis that non-human animals, like humans, have moral rights that place constraints on what it is permissible to do to them in the name of promoting some good. If the argument for animal rights is sound, then those who violate their rights are not innocent and can, in some circumstances, be said to have forfeited their own right to immunity from attack. It is therefore open to activists to challenge the innocence of their targets by reference to their direct blameworthiness or complicity in harms done to non-human animals. In the case of the dog-kicker the loss of immunity to attack springs from the right of a third party to intervene to protect an innocent from urgent and imminent threat. In other cases – where such a threat is not urgent or imminent – the apt response to a rights violation is likely to be quite different. In such cases the literature on just war theory is more relevant than that on self- or other-defence. The targets of animal rights activism are governments, private individuals (such as people who wear fur), those who cause harm directly (farmers, scientists, breeders), and those with economic interests in systems of animal abuse: company shareholders, suppliers, employees, directors and owners. In each of these cases, a causal link can be established between harms done and the targets of activism. Nevertheless, it is inevitable that ostensibly innocent people will have (or have had) their interests or property harmed by activism. The permissibility of causing harms to these people may be strengthened if complicity in harms to non-human animals can be shown. Comparing the number of people who are vegan or vegetarian (or even conscientious omnivores) to those happy to consume animal products and enjoy the benefits of animal research, and inferring from the present state of animal protection legislation, indicates that most people approve of harmful, but legal, practices towards non-human animals. Furthermore, they regularly contribute money to receive those benefits and resist proposals for radical change. The numbers of potentially illegitimate victims of harms caused by activism in protest against harms to non-human animals could thus be fairly low, and the majority or targets can be shown to be responsible to some degree for the harms protested against. However, in the case of environmental activism it is hard to see how those who cause ecological damage can be considered to be harming the environment in the morally relevant sense contained within definitions of terrorism. We might think of terrorist actions as carrying justifications couched in terms of rights violations, and whist it is possible to construct a case for ascribing rights to non-human animals, it is hard to show that the environment or an ecosystem has interests or is valuable for its own sake in a way that might ground rights. Nevertheless, there might be cases where environmental destruction threatens humans or other animals in some way. ...
However, there may be a concern that some sensitivity to the degree of complicity held by an individual needs to feature strongly in any consideration in order to prevent the range of targets for terrorist attack from being overly expansive. One might credibly think that merely standing by in the face of injustice, or simply signalling assent to a wrongful act, is insufficient to constitute a forfeiture of rights against bodily or psychological harm. Borrowing from the literatures on just war, self-defence/other-defence, and punishment theory; the strong prima facie wrongness of violence requires that perpetrators not only establish liability, but also act in a way that is proportionate. Proportionality, in this case refers not only to whether the level of force is proportionate in the sense that it is the minimum necessary to achieve the desired outcome, but also that it is sensitive to the degree of harm caused, or threat posed, by the target of violence. Making use of such considerations would restrict the strongest forms of violence to those directly engaged in unjust acts. Thus, we might draw an analogy between an unjust war and the treatment of non-human animals. In an unjust war, targets for lethal violence are standardly thought to be combatants and perhaps also those who directly contribute by producing munitions in support of it.(cf. Anscombe, 1961) In the animals case, this would make vivisectors, farmers, those who work in abattoirs, circus trainers etc. potentially legitimate targets, but would rule out those who merely support harms to animals by voting for particular political parties or enjoying the benefits resulting from those harms. In the environmental case, it would make those who directly pollute or destroy the environment liable to more significant harms than those who merely purchase products created by polluting companies. Additionally, we might ask if those engaged in harmful practices can offer convincing justifications or excuses that would render them non-culpable for their actions. If it is true that non-human animals should be considered rights-bearers, then justifications for rights-violations based on good consequences for humans will be insufficient for this. 
One worry here is that the process of establishing liability for harms requires, as in just war theory, that there be a legitimate authority to make judgements of liability. If animals do possess moral rights, then the issue hinges upon whether individual agents are morally permitted to make extra-institutional judgements of liability to harm in cases of non-compliance with the requirements of morality and in the absence of a just legitimate authority. As already discussed, in cases where threats are urgent and immanent, we commonly think that agents are permitted to intervene to prevent harm, but where this is not the case the question remains open. This is a wider question on the limits of duties to bring about a just society and the issue of political violence than the narrow issue of animal rights and ecological protection and cannot be adequately addressed here. 
... it is worth re-iterating and clarifying the point that the establishment of responsibility for wrong-doing does not lead automatically to the forfeiture of rights against harm. Whether an agent is liable to violence because of wrong-doing depends very-much on features of a particular case. In cases where political reform is the aim the strong prima facie case against the use of violence requires that other avenues be exhausted first and that any force used is proportionate and necessary. If we examine the tactics of animal rights and environmental activists, it is clear that they do persistently pursue other, non-violent means of attempting political change. The success of these methods has been limited, and there are reasons to believe that procedural unfairness can make, or has made, democratic channels a dead-end for animal rights activists.(cf. Garner, 1993, p. 230 and 237; Carter, 1998; Nestle, 2007) Furthermore, we can see that the level of force used so far by environmental and animal rights activists has largely been confined to property damage and threat of violence rather than actual violence.
The result of this analysis is not only to show that should we avoid labelling many forms of paradigmatic animal rights and environmental extremism as terrorism, but also to provide a partial justification for them. Of course, many other supporting reasons would need to be given in an all things considered justification. Other such factors might include: whether acts are proportionate responses; whether they have a chance of succeeding in their aims; whether the threat they seek to avert is urgent and immanent; whether non-violent methods have been exhausted; and so forth. Thus, whilst the strong prima facie case against violent activism or terrorism is maintained, it is not ruled out a priori. The importance of reassessing the moral and legal status of the more extreme forms of animal rights and environmental activism is high. The consequences of infelicitous use the terms ‘terrorism’ or ‘terrorist’ can be very grave indeed. As John Hadley points out, terrorists face harsher penalties and longer sentences than criminals convicted of comparably violent non-political offences, and in addition such labelling carries de-legitimising stigma for an ideological movement and social censure for its advocates.(Hadley, 2009)

Cybersecurity and NIST Framework

The US National Institute of Standards and Technology (NIST) has released a Preliminary Cybersecurity Framework: a set of best practices to help owners and operators of critical infrastructure reduce cybersecurity risks [PDF].

The NIST framework is voluntary. After finalisation it is expected to  provide US private and public-sector organizations with "a common language for understanding and managing cybersecurity risks internally and externally".

The framework reflects President Obama's February 2013 Executive Order (No 13636) on cybersecurity. The Final Framework is due to be released in February 2014, following comment on the Preliminary Framework. Appendix B provides "a methodology to protect privacy and civil liberties for a cybersecurity program".

NIST seeks feedback around the following questions
Does the Preliminary Framework:
  • adequately define outcomes that strengthen cybersecurity and support business  objectives? 
  • enable cost-effective implementation? 
  • appropriately integrate cybersecurity risk into business risk? 
  • provide the tools for senior executives and boards of directors to understand risks and  mitigations at the appropriate level of detail? 
  • provide sufficient guidance and resources to aid businesses of all sizes while maintaining flexibility? 
  • provide the right level of specificity and guidance for mitigating the impact of   cybersecurity measures on privacy and civil liberties? 
  • express existing practices in a manner that allows for effective use?
Will the Preliminary Framework, as presented:
  • be inclusive of, and not disruptive to, effective cybersecurity practices in use today, including widely-used voluntary consensus standards that are not yet final? 
  • enable organizations to incorporate threat information?
Is the Preliminary Framework:
  • presented at the right level of specificity? 
  • sufficiently clear on how the privacy and civil liberties methodology is integrated with the Framework Core?
NIST indicates that
To manage cybersecurity risks, a clear 80 understanding of the security challenges and considerations specific to IT and ICS is required. 81 Because each organization’s risk is unique, along with its use of IT and ICS, the implementation of the Framework will vary.
The Framework, developed in collaboration with industry, provides guidance to an organization on managing cybersecurity risk. A key objective of the Framework is to encourage organizations to consider cybersecurity risk as a priority similar to financial, safety, and operational risk while factoring in larger systemic risks inherent to critical infrastructure.
The Framework relies on existing standards, guidance, and best practices to achieve outcomes that can assist organizations in managing their cybersecurity risk. By relying on those practices  developed, managed, and updated by industry, the Framework will evolve with technological  advances and business requirements. The use of standards will enable economies of scale to drive innovation and development of effective products and services that meet identified market needs. Market competition also promotes faster diffusion of these technologies and realization of many benefits by the stakeholders in these sectors.
Building off those standards, guidelines, and practices, the Framework provides a common language and mechanism for organizations to: 1) describe their current cybersecurity posture; 2) describe their target state for cybersecurity; 3) identify and prioritize opportunities for improvement within the context of risk management; 4) assess progress toward the target state; 5) foster communications among internal and external stakeholders.
The Framework complements, and does not replace, an organization’s existing business or cybersecurity risk management process and cybersecurity program. Rather, the organization can use its current processes and leverage the Framework to identify opportunities to improve an organization’s management of cybersecurity risk. Alternatively, an organization without an existing cybersecurity program can use the Framework as a reference to establish one.
The goal of the open process in developing the Preliminary Framework was to develop a robust technical basis to allow organizations to align this guidance with their organizational practices. This Preliminary Framework is being issued for public comment for stakeholders to inform the next version of the Framework that will be completed in February 2014, as required in EO 13636. ....
The Framework is a risk-based approach composed of three parts: the Framework Core, the  Framework Profile, and the Framework Implementation Tiers. These components are detailed  below.
 The Framework Core is a set of cybersecurity activities and references that are common  across critical infrastructure sectors organized around particular outcomes. The Core   presents standards and best practices in a manner that allows for communication of   cybersecurity risk across the organization from the senior executive level to the   implementation/operations level. The Framework Core consists of five Functions—  Identify, Protect, Detect, Respond, Recover—which can provide a high-level, strategic  view of an organization’s management of cybersecurity risk. The Framework Core then  identifies underlying key Categories and Subcategories for each of these Functions, and  matches them with example Informative References such as existing standards,   guidelines, and practices for each Subcategory. This structure ties the high level strategic  view, outcomes and standards based actions together for a cross-organization view of  cybersecurity activities. For instance, for the “Protect” Function, categories include: Data  Security; Access Control; Awareness and Training; and Protective Technology. ISO/IEC  27001 Control A.10.8.3 is an informative reference which supports the “Data during  transportation/transmission is protected to achieve confidentiality, integrity, and  availability goals” Subcategory of the “Data Security” Category in the “Protect”   Function.
Appendix B contains a methodology to protect privacy and civil liberties for a 131 cybersecurity program as required under the Executive Order. Organizations may already  have processes for addressing privacy risks such as a process for conducting privacy  impact assessments. The privacy methodology is designed to complement such processes  by highlighting privacy considerations and risks that organizations should be aware of  when using cybersecurity measures or controls. As organizations review and select  relevant categories from the Framework Core, they should review the corresponding  category section in the privacy methodology. These considerations provide organizations  with flexibility in determining how to manage privacy risk.
A Framework Profile (“Profile”) represents the outcomes that a particular system or   organization has achieved or is expected to achieve as specified in the Framework   Categories and Subcategories. The Profile can be characterized as the alignment of industry standards and best practices to the Framework Core in a particular   implementation scenario. Profiles are also used to identify opportunities for improving  cybersecurity by comparing a “Current” Profile with a “Target” Profile. The Profile can then be used to support prioritization and measurement of progress toward the Target Profile, while factoring in other business needs including cost-effectiveness and   innovation. In this sense, Profiles can be used to conduct self-assessments and   communicate within an organization or between organizations.
 Framework Implementation Tiers (“Tiers”) describe how cybersecurity risk is managed by an organization. The Tier selection process considers an organization’s current risk management practices, threat environment, legal and regulatory requirements,  business/mission objectives, and organizational constraints. Tiers describe the degree to which an organization’s cybersecurity risk management practices exhibit the  characteristics (e.g., risk and threat aware, repeatable, and adaptive) defined in Section 2.3. The Tiers characterize an organization’s practices over a range, from Partial (Tier 1) to Adaptive (Tier 4), progressing from informal, reactive implementations to approaches that are agile and risk-informed.

28 October 2013


On occasion I've made submissions or media interviews highlighting the problematical basis of alarmism about online/offline gamers, ie consumers of video and computer games.

Digital Australia 2014 by Jeffrey E. Brand, Pascaline Lorentz, Trishita Mathew of Bond University for the Interactive Games and Entertainment Association updates past research under IGEA auspices regarding interactive entertainment in Australian households.

The authors comment [PDF] that
We began national studies of computer game audiences in 2005 to widen the conversation about games and tackle stereotypes that prevented an understanding in the wider community that computer games were a popular medium that had become not only normalised, but a medium valued by Australians of all ages. Rather than challenge negative stereotypes about games with rhetoric, we provided quantitative empirical data using established social and market research practice – something that had not been available for Australia’s journalists and policy-makers who relied on overseas data. Over the five Australian studies since 2005, we documented the ascendency of computer and video games to centre stage in media culture. 
The Game Play Australia 2005 claimed that
  • 76% of households had a device for playing games and PCs dominated consoles
  • 38% of gamers were female 
  • the average age was 24
  • the play duration was less than an hour and  the frequency was twice a week
  • 49% of households had broadband connections
  • 35% played games online
  • 66% of parents played video games,
  •  88% said Australia should have an R18+ for games
  • 68% said classification information was very influential when choosing games for their children. 
The corresponding 2009 report claimed that
  • 88% of households had a device for playing games and consoles took the lead from PCs
  • 46% of gamers were female 
  • the average age was 30
  •  the play duration was an hour and  the frequency was every other day
  •  81% of households had broadband connections
  • 48% of household played games online, 
  • 70% of parents played games, 
  • 60% of households were home to 2 or more players, 
  •  91% said Australia should have an R18+ for games, and 
  • 46% said classification information was very influential when choosing games for their children. 
 The Digital Australia 2012 report claimed that
  • 92% of households had a device for playing games and consoles lead and phones outflanked handhelds, 
  •  47% of gamers were female 
  • the average age was 32
  •  the play duration was an hour and  the frequency was every other day
  •  83% of parents played games
  • 70% of households were home to 2 or more players
  • 41% said classification information was very influential when choosing games for their children. 
The latest report argues that
the profile of the gamer and the gaming household is nearly synonymous with the profile of the typical Australian and Australian household. It demonstrates that multiple screens and game devices are commonplace and that games have expanded from the loungeroom to the pocket, played frequently and for longer durations. It suggests that the moral panic over established media like music, films, television and games is now moving to social media and the Internet. Adult gamers have formed great memories over the years of family time, characters, story, play and interaction from a medium that has emerged from its adolescence.


'Comparison of Course Completion and Student Performance through Online and Traditional Courses' by Wayne Atchley, Gary Wingenbach and Cindy Akers in (2013) 14(4) International Review of Research in Open & Distance Learning notes that
Enrollment in online courses has outpaced overall university enrollment for the past several years. The growth of online courses does not appear to be slowing. The purpose of this study was to compare course completion and student academic performance between online and traditional courses. Archival data from the host university student records system was collected using the Structured Query Language. Descriptive statistics were used to analyze student characteristics. Chi-square analysis was used to determine if statistically significant differences existed between students enrolled in online and traditional courses when comparing course completion and academic performance. Analysis found statistically significant differences existed in both course completion and academic performance for students enrolled in online versus traditional courses. Additional analysis indicated statistically significant differences existed in course completion by course discipline. 
The authors conclude
The growth rate of student enrollments in online courses is outpacing the growth rate of the total higher education student population (Allen & Seaman, 2008). Research on the course completion rates in online education is mixed. Some research has found course completion in online courses was as good as or better than in traditional courses (Roach, 2002). Other researchers have found that traditional courses have higher course completion rates when compared to online equivalents (Brady, 2001; Carr, 2000; Simpson, 2003).
Course completion and student performance has financial impacts on students as well as the university. The THECB (2008) proposed a shift in formula funding from attempted to completed semester credit hours. If retention and completion in online courses is lower than the traditional classroom setting, the host university could potentially lose a portion of state funding. Understanding where retention in online courses is a problem will allow the host university to take corrective action in order to increase retention and student success in online courses. Additionally, the Texas Administrative Code dictates that a university “shall not submit for formula funding any hours for a course that is the same or substantially similar to a course that the student previously attempted for two or more times at the same institution” ([TAC], Title 19, Part 1, Rule 13.105, 2005). To compensate for the loss of state funding, the university could charge tuition up to the out-of-state tuition rates for the course. Objective one sought to determine if statistically significant differences existed in student performance between online and traditional courses. A chi-square analysis on the dataset indicated that a statistically significant difference did exist in the student performance between online and traditional courses. This finding supports previous research on student performance in online courses (Faux & Black-Hughes, 2000; Paden, 2006; Shoenfeld-Tacher, McConnel, & Graham, 2001). Additional observation of the grade frequencies found a higher percentage of As, Ds, and Fs in online courses, while traditional courses had a higher percentage of Bs and Cs. Shoenfeld-Tacher et al. found student academic performance as measured by a post-test in an online science course was significantly different and superior to student performance in the traditional course section. Paden found that student academic performance in an introductory math course was significantly different between online and traditional delivery. Contrary to what Shoenfeld-Tacher et al. found, Paden noted academic performance of students enrolled in the traditional section of the introductory math course was superior to students enrolled in the online section.
With regard to objective two, statistically significant differences did exist in course completion rates between online and traditional course delivery. This finding supports research conducted by McLaren (2004), Paden (2006), and Roach (2002) who found differences in course completion rates between online and traditional courses. Additional analysis indicated that students enrolled in online courses had a lower course completion rate (93.3%) than students enrolled in traditional courses (95.6%). This supports research by Paden who found that traditional course delivery had a higher retention rate compared to online delivery for students enrolled in an introductory math course. Nelson (2006) found statistically significant differences in student retention rates between online and traditional course delivery. With regard to objective three, statistically significant differences existed in course completion rates by course discipline. Additional observations supported previous research that suggested some disciplines may not be well-suited to online delivery (Carnevale, 2003; Nelson, 2006; Noble, 2004; Paden, 2006; Smith, Heindel, & Torres-Ayala, 2008). Course completion varied by discipline with reading having the highest rate at 98.2% and finance with the lowest at 82.2%. Nelson examined course completion rates for nine disciplines and found that no statistically significant differences existed for seven of the disciplines. However, statistically significant differences did exist in criminal justice and psychology and Nelson suggested that these course disciplines might not be conducive to online delivery. Smith et al. (2008) compared online and traditional course completion rates in mathematics courses and found lower retention rates in online mathematics courses. The researchers suggested that mathematics might not be appropriate for online delivery.
The research was conducted using archival data from the host institution’s student record system. No data was available on student perceptions of the courses or student aptitude with the technology used for course delivery. Additional student characteristics such as age, gender, ethnicity, classification, major, and experience with online course delivery were not evaluated as part of this research. What type of student is likely to succeed in online courses? Does experience with the technology lead to greater course completion and improved student performance in online courses? More research into student characteristics could help identify possible variables to predict student success in online courses.


The Senate Community Affairs References Committee has released its report [PDF] on Involuntary or coerced sterilisation of intersex people in Australia.

The report notes that
On 20 September 2012, the Senate referred the involuntary or coerced sterilisation of people with disabilities in Australia to the Senate Community Affairs References Committee for inquiry and report. On 7 February 2013 the Senate amended the terms of reference of the inquiry to add the following matter:
2. Current practices and policies relating to the involuntary or coerced sterilisation of intersex people, including: (a) sexual health and reproductive issues; and (b) the impacts on intersex people.
The addition of this item reflected the growing awareness by both the committee and stakeholders of a significant overlap between issues faced by people with disability and by intersex people. The committee's desire to examine the issues more closely was also fostered by the work of the government and the Senate Legal and Constitutional Affairs committee on the Exposure Draft of Human Rights and Anti-Discrimination Bill 2012, and the subsequent Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.
On 17 July 2013 the Community Affairs committee tabled its first report, on involuntary or coerced sterilisation of people with disabilities in Australia. This second, and final, report addresses the term of reference concerning intersex people.
The report features 15 recommendations, as follows
R1   that governments and other organisations use the term 'intersex' and not use the term 'disorders of sexual development'.
R2  that health professionals and health organisations review their use of the term 'disorders of sexual development', seeking to confine it to appropriate clinical contexts, and should use the terms 'intersex' or 'differences of sexual development' where it is intended to encompass genetic or phenotypic variations that do not necessarily require medical intervention in order to prevent harm to physical health.
R3  that all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons.
R4  that the Commonwealth government provide funding to ensure that multidisciplinary teams are established for intersex medical care that have dedicated coordination, record-keeping and research support capacity, and comprehensive membership from the various medical and non-medical specialisms. All intersex people should have access to a multidisciplinary team.
R5  In light of the complex and contentious nature of the medical treatment of intersex people who are unable to make decisions for their own treatment, the committee recommends that oversight of these decisions is required.
R6  that all proposed intersex medical interventions for children and adults without the capacity to consent require authorisation from a civil and administrative tribunal or the Family Court.
R7  that the Standing Committee on Law and Justice consider the most expedient way to give all civil and administrative tribunals in all States and Territories concurrent jurisdiction with the Family Court to determine authorisation for intersex medical interventions proposed for a child.
R8  that civil and administrative tribunals be adequately funded and resourced to consider every intersex medical intervention proposed for a child.
R9  that the special medical procedures advisory committee draft guidelines for the treatment of common intersex conditions based on medical management, ethical, human rights and legal principles. These guidelines should be reviewed on an annual basis.
R10  that complex intersex medical interventions be referred to the special medical procedures advisory committee for consideration and report to whichever body is considering the case.
R11  that the provision of information about intersex support groups to both parents/families and the patient be a mandatory part of the health care management of intersex cases.
R12  that intersex support groups be core funded to provide support and information to patients, parents, families and health professionals in all intersex cases.
R13  that the Commonwealth Government support the establishment of an intersex patient registry and directly fund research that includes a long-term prospective study of clinical outcomes for intersex patients.
R14   that the Commonwealth government investigate the appropriate regulation of the use of dexamethasone for prenatal treatment of CAH.
R15  that, effective immediately, the administration of dexamethasone for prenatal treatment of CAH only take place as part of research projects that have ethics approval and patient follow-up protocols.