14 December 2013

Personhood and Nonhuman Animals

Noting judgments in New York Courts regarding three suits by the NonHuman Rights Project [NhRP] on behalf of four chimpanzees – Tommy, Kiko, Hercules and Leo – that the Project is  seeking to have released to sanctuaries.

The NHRP indicates that
These habeas corpus writs are a way of going before the court to argue that our chimpanzee plaintiffs are legal persons with the fundamental right to bodily liberty, based on their level of complex cognition, self-awareness and autonomy, rather than simply pieces of property that can be owned, imprisoned and used for experiments.
The writs have been rejected; no surprise to the NhRP, which is using them to appeal to US superior courts.
Expanding the common law of New York, which is what the NhRP is trying to do, is typically left up to the higher courts, in this case the Intermediate Appellate Court and New York’s highest court, the Court of Appeals. It’s also, in part, why we filed these first suits in New York State, which has an automatic right of appeal in habeas corpus petitions. These cases now move on to the New York Appellate Courts. What we were certainly hoping for was that if our petitions were denied, the rulings would be based on the judges’ views that chimpanzees cannot be considered “legal persons.” And that is indeed what happened. So the question of legal personhood is what will now be taken up in the appellate courts. One of the judges even went out of his way to give us the tools we’ll need for an appeal. In the case of Tommy, the Hon. Joseph Sise held an hour-long hearing and asked some of the key questions that enabled us to place on the record why Tommy should be considered a “legal person” and what are the grounds for him to have the fundamental right of bodily liberty.
In Tommy vs. Patrick C. Lavery, Individually, and as an Officer of Circle L Trailer Sales, Inc., Diane Lavery and Circle L  Trailer Sales, Inc [PDF] Steven Wise - author of several works on animal rights (for example noted here)  - indicates that
We brought a writ of habeas corpus because a writ of habeas corpus is aimed at the denial of a legal person, not necessarily a human-being, but a legal person's right to bodily liberty.
The judgment continues -
THE COURT: Do you have any authority under New York law or federal law that a legal person can be defined as chimpanzee or a chimpanzee can fit within that definition? Do you have any precedent?
MR. WISE: We do.
THE COURT: What's the name of the case?
MR. WISE: We cite cases in which various nonhumans have been held to be legal persons. Some of them are New York
THE COURT: You're talking about habeas corpus cases or no?
MR. WISE: No. There's not a habeas corpus case on that.
THE COURT: In what type of case has a nonhuman been held as a human-being?
MR. WISE: Well, aside from the average which is ships and corporations and partnerships  and states, there are also cases in other common law jurisdictions. There is an Indian Supreme ; Court case where the holy books of the Sikhs have been held to be a legal person. There's another Indian case with Hindu idols. There was a treaty last year between the Crown of New Zealand and the Maori Tribes in which a river was held to be a  legal person.  A legal person is not synonymous with a human-being, as we talked about in our memorandum. A legal person is an entity that the judicial system here -- we're asking this Court to begin to consider it, that the judicial system considers is important enough so that it's visible and its interest, whether it's a river or a Hindu idol or a holy book or corporation or -- and I must say, this Court also -- not this Court but this state was a leader in holding blacks in the antebellum north before the Civil War were also legal persons who were subject to writs of habeas corpus. The Lemmon vs. People case is probably the most famous and one of the strongest, most powerful statements...
THE COURT: Court's not even going to consider that as synonymous, so you'll have to use your other cases. I'm just telling you, the Court will reject that argument, the argument that the cases involving human-beings who were slaves in the 1800s as synonymous with a chimpanzee. I reject it. ...
MR. WISE: We're not comparing chimps to blacks. We are not at all. What we're doing is saying there's been a whole spectrum of legal things, and that includes rivers and idols and corporations and black slaves. And they have been able to in the appropriate cases argue that they are indeed legal persons, that their interests should be acknowledged and they should have the capacity to have certain kinds of rights. Now, we argue, Judge, and I think this is very important, number one -- there's two reasons why Tommy fits that. Number one, the Pet Trust Act in New York specifically says that an animal like Tommy can be the beneficiary of a trust. We have indeed set up a trust for Tommy. There has been -- the only case in New York under the Pet Trust statute indeed held that --
THE COURT: This is all in your papers, correct?
MR. WISE: Yup. THE COURT: Let's turn to the reason why you're here. What is it about Tommy and his treatment that causes you to seek this writ of habeas corpus?
MR. WISE: Thank you very much for asking. Your Honor, in March of this year, we decided that we wanted to file a writ of habeas corpus on behalf of two chimpanzees. In April --
THE COURT: "We" as in --
MR. WISE: "We," the Nonhuman Rights Project. Both of them are dead. We then were concerned about this and we identified all five chimpanzees who were alive in the state of New York. One of them have died. Three of the seven chimpanzees in the state of New York are now dead in the last seven months. We are now filing a lawsuit here on behalf of Tommy, we're filing another lawsuit in Niagara Supreme Court on behalf of Peto, and we're filing another lawsuit in the Supreme Court in Suffolk County on behalf of Hercules and Leo.
We believe that all chimpanzees in the state of New York should be declared legal persons, that there is ample precedent to do that. They already are legal persons under the Pet Trust statute. And if not -- or in addition to it, under the common law, they ought to be. They're fully autonomous, extraordinarily complex beings, and their autonomy, their ability to self-determine, ability to make choices -- that we wanted to file a writ of habeas corpus on behalf of two chimpanzees. In April --
THE COURT: Is that why you're making this argument, because the level of sophistication of a chimpanzee versus some other animal? Is that what your argument rests on? MR. WISE: There are two arguments.
THE COURT: No, no, no. The argument you just made.
MR. WISE: That part rests not on the general cognitive sophistication but on the fact that chimpanzees possess the autonomy that New York courts highly value in human-beings.
THE COURT: But you're not making your argument and differentiating the chimpanzee from other animals, are you?
MR. WISE: We are, Your Honor.
THE COURT: So it does matter, the cognitive ability of a chimpanzee, in your argument.
MR. WISE: Absolutely. My --
THE COURT: It would be important for you to understand what my questions are.
MR. WISE: Sometimes I don't get it, so --
THE COURT: Stop. I'll give you a full opportunity to be heard, but this is not a discussion. My question to you is you're differentiating chimpanzees from other animals. It's key to your argument. Right?
MR. WISE: We are differentiating.
THE COURT: A chimpanzee from a dog, from a horse, from a zebra, from --
MR. WISE: But you --
THE COURT: You haven't heard what I'm asking. You're doing it again.
MR. WISE: I apologize.
THE COURT: Sit down. Sit down, please.
MR. WISE: Yes, sir.
THE COURT: Here's my question. Perhaps you won't need to respond when you're sitting and then you can stand when you want to respond. It strikes me that you're making an argument and part of your argument - and I see that Ms. Stein and your associate are shaking their heads - that it's the level of sophistication of the chimpanzee that is important here, and so I am asking to flush out that issue as opposed to other animals. It's important as part of your argument that a chimpanzee is more sophisticated than other animals. And I'm asking, is that important to your argument? Because it sounds like that's what you're saying.
MR. WISE: We are saying that but not in a general manner of sophistication. It's because they are autonomous.
THE COURT: Says who? And I say that because -- I'm asking the question because that's beyond your ken and beyond my ken. It's beyond the ken of the normal fact-finder. You're stating something that only expert testimony could supply.
MS. STEIN: Yes, Your Honor. That is why, in fact, we have the affidavits attached to the petition and the memorandum of law from the most renown primatologists in the world. They are from Sweden, Germany, England, Scotland, Japan and five of them within the Continental United States.
THE COURT: So, what is it that you are asking the Court to do in terms of Article 70, make an exception for chimpanzees only?
MR. WISE: We are asking only that --
THE COURT: You understand the question, right, the legal reasoning or the legal conundrum the Court is in based upon your argument?
MR. WISE: We are -- in a specific legal way, we're simply asking that you issue the writ of habeas corpus on behalf of Tommy; in a general way, on behalf of chimpanzees.
THE COURT: You're asking the Court to recognize chimpanzees over other animals and things as a person. That's what you're asking me to do --
MR. WISE: That's --
THE COURT: -- specifically for Tommy.
MR. WISE: Partly so, Your Honor. We are asking that -- we are saying that the reason that this Court should do that is Tommy, as these experts pointed out, is autonomous and that a chimpanzee, a gorilla and an orangutan, a bonobo, those are all the great apes, they are almost certainly as autonomous as Tommy is. But we don't know that. We haven't proven that. What we have proven clearly is that Tommy and chimpanzees are autonomous, and that's as far as we want to go. So, we are asking that this Court recognize that chimpanzees have what it takes for legal personhood within the meaning of the habeas corpus statute, which is autonomy, self-determination, self-agency, the ability to choose how to live their lives. That's what we're asking.
THE COURT: All right. Anything further?
MR. WISE: We have so much, Your Honor. We have a lot that we have to say, but I'm interested in specifically addressing any other questions you may have. We're asking that you issue the writ of habeas corpus, too, so that we can flush out what we think are very complex legally, interesting and significant issues; and that specifically we are concerned that Tommy is going to die and the other chimpanzees are going to die, like the three chimpanzees have died in the last seven months.
THE COURT: I think before we reach the merits -- and when I say the "merits," the merits of whether or not Tommy is being mistreated as a highly sophisticated animal, you first would have to meet the threshold that Article 70 should apply to a chimpanzee.
And so when I say "anything further," anything further on the argument of whether or not this Court should recognize Article 70 to include chimpanzee, specifically this chimpanzee, Tommy, as part of a protected class that can seek a writ of habeas corpus? Anything further in that regard?
MR. WISE: I do, Your Honor. So, the writ of habeas corpus says that anyone may seek a writ of habeas corpus when a person is being imprisoned. It does not say "human-being." It says "person." Part of our memorandum specifically points out that "human-being" is not a synonym for "person," "person" is not a synonym for "human-being." Throughout history, which we clearly pointed out, there have been human-beings who have not been legal persons for purposes of habeas corpus and there have been nonhuman-beings who are legal persons for purposes of writs of habeas corpus. There is some requirement other than being human, though we do believe and we would argue that -- at least in the year 2013, that being a member of the species homosapiens is indeed a sufficient condition for personhood, but there are other sufficient conditions for personhood, as well; and we would argue that based upon New York law common law, US Supreme Court has talked about common law, that indeed autonomy is one of the most highly protected attributes of human-beings. Court of Appeals of New York will allow you to die. They'll allow you to take your own life. They'll allow you to represent yourself in court, even though we all know you're going to lose. Autonomy is an extraordinarily important attribute, and we argue that autonomy -- that a being who is autonomous, who can choose, who is self-aware, these, Your Honor, are essentially us. They're so extraordinarily close to us.
We have presented 150 pages of affidavits from the world's greatest primatologists who set out in specific and even excruciating detail just how from language to culture -- these beings have cultures, there are cultures, they have language. They can use human language. They can use chimpanzee language. They are extraordinarily similar to us. And if we focus in on not just how they look, their brains are similar to us, the way their brains work are similar to us. They're essentially almost us. And if you focus on the issue of autonomy, self-determination, choice, that those are such powerful concerns of the courts of New York that a being who can demonstrate, which we do demonstrate, that they indeed have that autonomy, that is a sufficient condition for legal personhood.
Plus, under the Pet Trust statute, the New York legislature has already determined that they are legal persons, because Tommy is a beneficiary of a trust that we have created. We created it for him. He owns the corpus of his trust. He can sue. And, indeed, Attorney Stein is the enforcer of that Pet Trust statute. So he already has certain kinds of rights, and we're saying that he should also have the fundamental right to bodily liberty that protects his fundamental interest in bodily liberty.
Now, that is an argument as a matter of liberty. We have another argument under common law equality in New York that Tommy should -- the only reason that someone could not issue a writ of habeas corpus on behalf of Tommy is, one, that he is a chimpanzee. And we look at the case of Romer vs. Evans, and in Romer vs. Evans you have Justice Kennedy saying that -- striking down Amendment 2 of a Colorado constitution saying that to choose a single trait and essentially strip someone, in that case, gay human-beings of all their rights because they have a single attribute so fundamentally undermines the argument both from constitutional equality for our purposes, more importantly, from common law equality, that it is violative of equality. And the only difference -- essential difference between Tommy and myself is that I'm a human-being and Tommy is a chimpanzee. Other than that, autonomy has the self-determination, self awareness. We have probably 40 different attributes that show a complex cognition, a very complex one. He has essentially the same as we have.
And so not only as a matter of liberty, but as a matter of equality under the common law, Tommy should be entitled to be viewed as a legal person as well and he also for the exact same reasons should be entitled to the right to bodily liberty which the common law -- or the common law --
THE COURT: What's the standing?
MR. WISE: Standing -- actually, we have a section on standing, but, essentially, the writ of habeas corpus is a different sort of cause of action in that a person who is being imprisoned generally is not able to leave the place of imprisonment to come and seek a writ of habeas corpus. So what happens is that the usual standing requirements are exceedingly relaxed so that a third party -- in fact, under the statute, it says anyone can come in and seek a writ of habeas corpus on behalf of a person who is imprisoned. That's what we do. That's what the Nonhuman Rights Project does. But even if it wasn't, any person could come in and seek a writ of habeas corpus on behalf of Tommy under the statute as well as under the constitutional law.
THE COURT: The trust you say that's set up for this chimpanzee, has it been used by the owner of the chimpanzee or is it --
MR. WISE: The -- I am so sorry, Your Honor.
THE COURT: That's okay. Go ahead. You were going to answer. Go ahead.
MR. WISE: The answer is the trust is for the care and maintenance of Tommy, and so we have -- right now he's being treated as a legal thing. We hope he's going to be treated as a legal --
THE COURT: I'm sorry. Is the trust monies used for Tommy?
MR. WISE: Yes, Your Honor.
THE COURT: So the owner of Tommy has been using the money?
MR. WISE: Nope. There is no -- the trust is not for Tommy as a legal thing. Tommy cannot -- Tommy could not --
THE COURT: You said the trust is used for his care.
MR. WISE: No. The trust shall be used for his care.
THE COURT: So it hasn't been used yet.
MR. WISE: It hasn't been used for his care, because the Nonhuman Rights Project has spoken to -- has arranged with the North American Primate Sanctuary Alliance, who has a string of primate sanctuaries throughout the United States, they have several of them in which they have some spectacular sanctuary, they're going to take care of Tommy and we're going --
THE COURT: Has the owner been approached and will not sell Tommy, will not release Tommy? Has it even been approached?
MR. WISE: This owner has not been approached.
THE COURT: This owner has not been approached?
MR. WISE: Tommy is just there. We've seen him.
THE COURT: All right. What else? Anything else? Ms. Stein, anything else?
MS. STEIN: No, Your Honor.
THE COURT: Your impassioned representations to the Court are quite impressive. The Court will not entertain the application, will not recognize a chimpanzee as a human or as a person as a person who can seek a writ of habeas corpus under Article 70. I will be available as the judge for any other lawsuit to right any wrongs that are done to this chimpanzee because I understand what you're saying. You make a very strong argument. However, I do not agree with the argument only insofar as Article 70 applies to chimpanzees. Good luck with your venture. I'm sorry I can't sign the order, but I hope you continue.

Perez

'Perez v Fernandez: Australia's First Decision on the Moral Right of Integrity' by Jani McCutcheon in (2013) 23 Australian Intellectual Property Journal 174 considers Perez v Fernandez [2012] FMCA 2, the moral rights judgment noted here.

McCutcheon indicates that
This article examines the recent Federal Magistrates Court decision of Perez v Fernandez, Australia’s first case on the moral right of integrity. While not an in-depth consideration of the moral right of integrity, Perez gives some useful insights and raises some questions. This article will closely analyse and critique the decision, compare it to approaches to the moral right of integrity in the UK and Canada, and identify the useful contributions Perez makes to the fledgling Australian moral rights jurisprudence.
In her discussion she comments that -
Unfortunately, Perez does not resolve any of the questions as to the meaning of honour, or how prejudice to honour should be assessed or proven. Nor does it discuss “honour” clearly as a concept separate to reputation (this criticism also applies to most if not all the UK and Canadian cases discussed above). Indeed, in several instances, Driver FM refers to “honour and reputation” (at [61], [98](a), (b), [101]). His Honour did refer to the Attorney-General’s Second Reading Speech (cited above), and to a recent report describing moral rights as one of the four principles underpinning Australian copyright law. He also said that moral rights were introduced to: “give protection to the investment of the author’s personality in his or her creation. Moral rights draw their jurisprudential force from civil law traditions and a number of international copyright and human rights conventions to which Australia is a party” (at [81]).
These references to an author-work connection and the civil law origins of moral rights suggest that the court regards honour as an aspect of protectable authorial personality, separate from authorial reputation, although it is interesting that, in the context of a cause of action so closely linked to the personality interests of the author (at [100]), Mr Perez’s failure to personally give evidence of prejudice did not disadvantage him. The court made a number of references to prejudice to the honour or reputation of Mr Perez “per se”: “the distortion of Mr Perez’s work, such as to create a false association, should be regarded as prejudicial to his honour and reputation as an artist per se” (at [98](b)). While this could be considered a reference to Mr Perez’s honour in isolation from his reputation, it is more likely that his Honour was simply clarifying that a breach of moral rights is actionable per se without proof of damage, or that in the particular circumstances of the parties’ relationship prejudice could be presumed. The court also said (at [87]):
I accept that the fact that the reference to Mr Fernandez in the altered version of the song had not been authorised by the author should be regarded as prejudicial to him per se. Were it to be suggested otherwise, Ms Martinez’s affidavit establishes to my satisfaction that the association with Mr Fernandez is one which Mr Perez himself strongly considered to be prejudicial to his reputation, and which caused him anger and distress [emphasis added].
This statement could be seen to discuss honour as a separate element of the right of integrity, if we construe the reference to “him per se” as a reference to Mr Perez as an author and without any exterior measure, followed by the separate consideration (“were it to be suggested otherwise”) of prejudice to reputation, which is measured by criteria exterior to the author. The reference to “anger and distress” seems also to be a reference to honour, given that those feelings are strictly irrelevant to damaged reputation. Again, however, this could also simply be a reference to presumed prejudice (“per se”), or in the alternative proven prejudice (based on Ms Martinez’s affidavit evidence). His Honour also found that Mr Perez was “concerned and upset by the distortion of the Bon, Bon Sound Recording and the use made of it by Mr Fernandez” (at [60]), and that Mr Fernandez “intended to cause Mr Perez artistic, reputational and commercial harm” (at [69]). He also referred to the “distress caused to Mr Perez as an artist”, the “need to provide vindication to Mr Perez as an artist” (at [106]), and to Mr Perez’s compensable “injured feelings” (at [91], [104]). However, Mr Perez may well have been “concerned and upset”, and his feelings injured, about the damage to his reputation caused by Mr Fernandez’s conduct, so these are not clear separate references to honour.
Despite the reference to “artistic” harm and to Mr Perez’s capacity “as an artist”, there was apparently no evidence as to authorial integrity, eg, that the deleted part of the song was particularly artistically significant, that the change made the song worse, or that Mr Fernandez interfered with Mr Perez’s authorial vision. The change made to Bon, Bon, in terms of quantum, was relatively minor, and the substantial message of the song remained untouched. Certainly, given the weight attached to reputation prejudice, Perez is not authority for the proposition that simply changing a few lines of a musical work is necessarily prejudicial, as suggested in some commentary, and as could likely be the case in France. The particular facts of Perez were very important. It was the misleading false association created by the new line, and its effect on the commercial reputation, rather than the artistic honour, of Mr Perez, that was germane, rather than the fact of the alteration itself or any interference with authorial vision. In other words, this was less about Mr Perez commanding respect for his work in his capacity as an author, and more about him commanding respect for his goodwill in his professional capacity. It is the strength of the case for reputation prejudice which makes Perez a poor test case on the concept of honour.
Thus it is no surprise that Perez is silent on the need to objectively verify the subjective response of the author. Insofar as the court considered Mr Perez’s subjective evidence about his feelings, it did not consider, nor apparently deem necessary, evidence from Mr Perez’s peers or any other representative member of the community about whether Mr Perez’s feelings were reasonable in the circumstances. The statement in Perez (at [98]) that it was unnecessary to lead “evidence from members of the public as to the way the work would be received” does not clarify the issue, since that evidence is separate to evidence about whether members of the public regarded Mr Perez’s subjective response to be reasonable. However, it is likely that the same evidence which led the court to conclude that prejudice to reputation could be presumed (ie, the particular circumstances of the parties’ relationship and the failed concert tour) would also demonstrate the reasonableness of Mr Perez’s subjective responses. Since Mr Perez’s honour was not really at issue, it is still an open question as to whether corroborative evidence of the reasonableness of the author’s response is necessary, or whether damages are recoverable for injured honour alone, in the absence of evidence of reputational harm. Perez does suggest, however, that a purely objective test should not be employed to determine prejudice to honour. The arguments for a purely objective test sit awkwardly with the several references in Perez to the injured feelings of Mr Perez, and the references to him as an artist (at [106]), rather than a “reasonable author” in the relevant field.
In summary, we need a deeper judicial consideration of the issue of honour as a separate element of the moral right of integrity before the Australian approach can be gleaned, and it is hoped that future claimants will plead their case more overtly in the alternative, and that future courts will consider those claims separately.
McCutcheon concludes -
In summary, the following conclusions can be drawn from Perez:
• the words “is prejudicial” mean a propensity towards prejudice, rather than prejudice in fact;
• it is unnecessary to establish actual proof of quantifiable loss;
• in certain circumstances, prejudice to honour or reputation may be presumed, in which case prejudice need not be objectively verified. It is not clear what the burden of proof is in cases where the facts do not so easily permit presumptions of prejudice to be made;
• the author’s subjective response to injury to reputation is relevant, and it is implied that the author’s subjective response to injury to honour is also relevant;
• it is not clear whether, in the absence of harm to reputation, injury to honour only is compensable, or compensable only with corroborative objective evidence;
• the remedies for breach of moral right include compensation for a very broad concept of loss, including aggravated damages, compensation for injured feelings and harm to goodwill; although it is not clear whether the injured feelings must be referrable to objectively established prejudice, either to reputation or to honour; and
• prejudice must be “serious” but need not be long-lasting
As one of only a few moral rights cases in Australia, and the first considering the moral right of integrity, Perez is a welcome addition to the paucity of authority on Australia’s untested moral rights. Despite being a lower court decision, as a very rare moral rights victory, Perez will likely be scrutinised by stakeholders in other common law jurisdictions. It should be regarded with some care, however, due to its particular facts, and due to its failure to deliberate deeply on some of the more contentious issues relating to the moral right of integrity. 

Barker

The High Court has accepted the special leave application re Commonwealth Bank of Australia v Barker [2013] FCAFC 83.

'Uneasy or Accommodating Bedfellows? Common Law and Statute in Employment Regulation' (Sydney Law School Research Paper No. 13/82) by Joellen Riley comments that
In 2005, Professor Phillipa Weeks published an insightful chapter entitled ‘Employment Law – A Test of Coherence Between Statute and Common Law’ in S Corcoran and S Bottomley (eds) Interpreting Statutes. That chapter examined the emergence, development and ultimate emasculation of an implied term of trust and confidence in employment, as a consequence of the interaction of judicial reasoning and legislative intervention. At the time, Professor Weeks bemoaned the ‘dismal state’ of Australian common law, and proposed a solution to the apparent incoherence and doctrinal imperfection in the law. This address will pick up the story where Professor Weeks left off, by considering the influence of developments – judicial and statutory – since publication of this important piece, and will revisit possible solutions in the light of those developments.
Riley's 'Siblings But Not Twins: Making Sense of 'Mutual Trust' and 'Good Faith' In Employment Contracts' in (2012) 36 Melbourne University Law Review 521 [PDF] commented
It has become common for employees claiming contractual damages following termination of their employment to plead that the employer has breached ‘an implied term of good faith, trust and confidence’ in the employment relationship. Sometimes two separate implied terms are pleaded: ‘mutual trust and confidence’ on the one hand, and ‘good faith’ on the other. The circumstances in which these claims are made are as various as the causes of misery and grievance in human relationships at work. Sometimes they are pleaded hand in hand with allegations of bullying and harassment; sometimes together with assertions of capricious denial of claimed entitlements (such as performance bonuses, promotions, or contract renewals). Although ‘mutual trust and confidence’ and ‘good faith’ have become commonplace vocabulary in pleadings, there is still considerable confusion and disagreement about the content of these obligations. Some judicial decisions have been sceptical about whether they exist at all.
The aim of this article is to propose a framework for understanding the role that mutual trust and confidence and good faith play in the resolution of employment contract disputes in Australia, in the hope that greater clarity around the concepts may convince the remaining sceptics that these are indeed legitimate employment obligations and they do not open floodgates to unpredictable damages awards. This framework may provide some guidance, and consequently alleviate some confusion, for the benefit not only of future litigants and their advisors, but also of the managers who determine workplace culture, and those who work within their influence.
This framework involves a number of propositions, each of which is expanded later in this article:
1 The two concepts — mutual trust and confidence on the one hand, and good faith on the other — describe closely related but nevertheless distinct obligations arising in an employment relationship, and perform different functions in resolving employment contract disputes.
2 The notion that the employment relationship involves a duty on both employer and employee not to act in a manner calculated or likely to destroy the relationship of trust and confidence between employer and employee has been articulated clearly in the employment contract law of the United Kingdom, and has been accepted or assumed in a sufficient number of cases in Australian jurisdictions to warrant its acceptance into the canon of Australian employment law. This proposition, which I concede is not yet universally accepted by Australian employment law advocates or judges, is explained more fully in Part II. Breach of this obligation (by either employer or employee) constitutes a repudiation of an employment contract justifying an election by the innocent party to terminate the contract. In Australian law, breach of this obligation has not yet sounded in any damages claim independently of any damages flowing from the termination of the employment.
3 Employment contracts, like other contracts which describe long-term (or at least, indefinite) relationships for the mutual benefit of the parties, are to be construed according to the principle that parties to the relationship are committed to perform their obligations in good faith. In this context, good faith is to be understood in the same way as good faith in the performance of other kinds of commercial contract. This proposition — also considered dangerously novel by some judges — is explained in Part III.
4 Both obligations are contractual in nature, meaning that they depend upon an assumption that parties have willingly committed to these obligations in entering into the employment relationship. If the parties to the relationship have expressly limited their obligations to each other, the agreement between the parties prevails over any implied obligation.
She concludes -
it is difficult to understand why there has been such judicial reluctance to accept unconditionally the following two propositions:
1 Employers and employees who have acted in a manner calculated or likely to destroy trust and confidence in an employment relationship are to blame for termination of the employment contract if the innocent party elects to terminate.
2 Employment contracts are to be construed on the basis that parties are obliged, and expect, to perform those contracts in good faith.
The first proposition works simply to allow a victimised employee to escape from an intolerable job with the same benefits they would have received if the employer decided to dismiss them. The second simply requires parties to respect the obligations mutually undertaken at the time they entered into their relationship. It does not preclude parties from limiting those obligations by express provision, though it does prevent one party from relying opportunistically on a written document to defeat the terms of the real agreement between the parties. Neither proposition opens any gates to floods of claims alleging rights to perpetual employment, or damages for hurt feelings.
The very fact that counsel representing employers sometimes vigorously argue the absence of any such obligations, even in the face of the most compelling evidence of appalling behaviour and serious harm, is testimony to the unsatisfactory state of the common law in this field. Forthright and unconditional judicial acceptance of these propositions, as limited as they are, may go some way to communicating a message to Australian employers that they do bear a responsibility to promote decent, respectful behaviour in their workplaces. Such responsibilities are not so terribly onerous. A prudent, diligent and cautious employer who paid heed to these principles would ensure that supervisors did not abuse their staff (as occurred in the Naidu case). They would institute fair and reasonable performance review systems (and so avoid the problems arising in Silverbrook Research Pty Ltd v Lindley and McDonald (Trial)); they would prudently investigate any allegations of impropriety against employees before acting precipitately, and they would respectfully follow up repeated complaints from employees (as arose for Nikolich and in McDonald (Trial)). They would certainly not trump up malicious complaints against their staff (as in Eastwood v Magnox Electric plc). They would also ensure that their contract documentation properly reflected the real agreement between the parties. A great deal of personal grief, and an enormous amount of business time, finances and resources, may be saved by the encouragement of a corporate culture that respected obligations of mutual trust, confidence and of good faith. Over time, we might witness a general improvement in Australian workplace culture, to the benefit of employees and employers alike. This is not an appeal for a great leaping legal development. It is nothing more than a plea for a consistent, principled message from case law in this field of law that is so important to the wellbeing of working citizens.

Myriad

'Human Dignity and Patents' by Aurora Plomer in C. Geiger (ed) Research Handbook of Human Rights and IP Rights (Edward Elgar, 2014) argues that
In the early 90s, the Open University used to offer a Philosophy course entitled ‘Life and Death’ which paid homage to the rich diversity of moral and religious views on the value of human life. Two decades later metaphysical questions about human dignity, the meaning of life, its beginning and its end, have made their way into patent law and patent tribunals and transnational central courts in Europe. This article argues that this is an unnecessary and unwelcome development to address legitimate public concerns about the adverse impact of patents on access to knowledge and essential medicines. The internalization and transplantation of human dignity & human rights within the formal structure of the patent system carries the risk of cutting across regulatory frameworks on research and the system of constitutional protection of fundamental human rights in democratic societies. The argument falls into four parts. The first part charts the rise of human dignity in international law and European human rights law and the increasing ‘thinning’ of the concept of human dignity into an abstract indeterminate concept in the new wave of bio-rights instruments. The second part draws on recent scholarship on the history of human rights which underscores the political malleability of human rights as a moral utopia. The third part shows how the importation of indeterminate human rights, dignity-based restrictions into European law on biotechnological patents has facilitated the displacement and re-enactment within patent law and the courts of moral and religious disputes which have nothing to do with patents per se. The last part reviews the EPO’s boards ‘dignity’ based decisions against the US SC ruling in Myriad and makes some suggestions as to how best to address legitimate public concerns about the negative impact of patents.
'Patently a Problem? Human Gene Patenting and Its Ethical and Practical Implications' by Stephanie Constand in (2013) 13(1) QUT Law Review 100 notes that
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.

Security

'The Rise of the Security State' by Yuhua Wang and Carl F. Minzner argues that
 Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that the origin of these changes lies in a policy response to the developments of 1989-1991, namely the Tiananmen democracy movement and the collapse of Communist political systems in Eastern Europe. Over the past twenty years, these practices have flowered into an extensive stability maintenance apparatus, where local governance is increasingly oriented around the need to respond to social protest, whether through concession or repression. Chinese authorities now appear to be rethinking these developments, but the direction of reform remains unclear. ...
The past two decades have witnessed increased levels of domestic protest in China, despite a growing economy and rising living standards. While the literature on resistance has flourished, there remains limited scholarship on how China’s coercive institutions have responded to this challenge. We join a rising scholarly interest in coercive institutions in China, but our approach is distinctive in focusing on Party-state leaders and the internal organization of the Chinese bureaucracy.
Beyond China, we also speak to the broader literature on authoritarian regimes. There has been a long tradition in the social sciences that views coercion as the pillar of model nation states. The recent uprisings in the Arab world have again called attention to the dependence of authoritarian regimes on coercive organizations. The loyalty of such organizations is said to explain the survival of the Bahraini monarchy, while the defection of the military contributed to the breakdown of autocratic rule in Tunisia and Egypt. However, our study argues that the response of the authoritarian Chinese regime to the “survival dilemma” goes beyond simply ratcheting up the use of coercion. Chinese authorities have remodeled the internal bureaucratic organization of the Party state apparatus, incentivized local authorities to aggressively respond to citizen protests (whether through repression or concession), and reworked the political-legal apparatus to address citizen grievances in a more flexible and coordinated manner.
Our research is based on both quantitative and qualitative analysis. Quantitatively, we manually constructed a Chinese Political-Legal Leaders Database, covering all national and provincial political-legal committee chairpersons, public security heads, procuratorate presidents, and court presidents from 1978 to 2013. The database includes variables measuring the Party bureaucratic positions concurrently held by these leaders. Qualitatively, we conduct a close reading of government and Party documents (including analyzing the public speeches of Qiao Shi, Party political-legal head during the late 1980s and early 1990s) to explain relevant changes in these bureaucratic practices. The next section details our quantitative data collection methods. The third section offers a descriptive analysis of the rank of political-legal leaders at the national and local levels. The fourth section identifies the early 1990s as a turning point of development in the political-legal apparatus and provides a historical analysis of relevant shifts. The fifth section examines recent developments. The sixth section discusses possible implications of our findings. The last section then concludes with a summary of our findings and broader implications of the study.

Identity Politics and health

''Rugged Vaginas' and 'Vulnerable Rectums': The Sexual Identity, Epidemiology, and Law of the Global HIV Epidemic' by Aziza Ahmed in (2013) 26(1) Columbia Journal of Gender and Law 1 argues that
AIDS remains amongst the leading causes of death globally. Identity is the primary mode of understanding HIV and organizing in response to the HIV epidemic. In this article, I examine how epidemiology and human rights activism co-produce ideas of identity and risk. I call this the “identity/risk narrative”: the commonsense understanding about an identity group’s HIV risk. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of a woman’s vaginal wall provides a biological foundation for women’s vulnerability. These biological narratives underpin rights-claiming in international human rights institutions: many women’s rights activists and gay rights activists rely on these biological ideas of risk to define their groups and demand legal and policy change. The corresponding legal projects emanate from identity driven projects.
While acknowledging identity’s potential as an organizational force, this Article argues that we must critically interrogate our reliance on identity politics in building movements to respond to the HIV epidemic. Through telling the history of gender organizing in the context of the international HIV epidemic and international human rights law, this article encourages HIV-movement lawyers and activists to remain vigilant about the downsides of identity politics so that we can remain responsive to the most marginalized communities. In other words, we must be attuned to the downsides of identity politics, even as it may feel like a necessary mode of activist engagement, in order to protect people and issues that are left out of identity-based movements and strengthen the response to HIV and AIDS.
I conclude this article by offering strategies to minimize the downsides of identity-based legal advocacy through shifting the mode of legal advocacy around HIV. By remaining vigilant about destabilizing identity, taking a consequentialist approach, and remaining focused on the background rules, advocacy can remain agile and responsive to the impact of HIV.

12 December 2013

Valuation

'The Cold-War Origins of the Value of Statistical Life (VSL)' (History of Economics Society meeting paper, Vancouver 2013) by H. Spencer Banzhaf traces
the history of the "Value of Statistical Life" (VSL), which today is used routinely in benefit-cost analysis of life-saving investments. Schelling (1968) made the crucial move of thinking in terms of risk rather than individual lives, with the hope to dodge the moral thicket of valuing "life." But as recent policy debates have illustrated, his move only thickened it. Tellingly, interest in the subject can be traced back another twenty years before Schelling's essay, to a controversy at the RAND Corporation following its earliest application of operation research to defense planning. RAND wanted to avoid valuing pilot's lives, but the Air Force insisted they confront the issue. Thus, the VSL is not only well acquainted with political controversy; it was born from it.
Banzhaf comments that
The Value of Statistical Life (VSL) is a concept used in benefit-cost analysis by government and intergovernmental agencies around the world to value reductions (or increases) in premature deaths. Common applications include the benefits of highway traffic safety measures and of reductions in air pollution. Typically, these mortality values comprise the lion's share of the estimated benefits of such investments (e.g. US EPA 2011). The VSL also has been used to help augment the national income and product accounts to accommodate non-market goods (e.g. Muller, Mendelsohn, and Nordhaus 2011) and to appraise the costs of war (Bilmes and Stiglitz 2006).
The "VSL" terminology was first introduced by Thomas Schelling (1968). Schelling's crucial contribution in that piece was the notion of statistical lives—really, mortality risks—in contrast to lives of specific, identified individuals. His insight was that economists could evade the moral thicket of valuing "life" and instead focus on people's willingness to trade-off money for small risks. Thus, for example, if a reduction in air pollution in a city of one million people reduces the risk of premature death by one in 500,000 for each person, then, ex ante, the policy would be expected to save two lives over the affected population. But from the individuals' perspectives, the policy only reduces their risks of death by 0.0002 percentage points. This distinction is widely recognized as the critical intellectual move supporting the introduction of values for (risks to) life and safety into applied benefit-cost analysis (Ashenfelter 2006, Hammitt and Treich 2007, Viscusi 1993). Despite the importance of this distinction between lives and risks, the VSL maintains an important rhetorical link to the value of life insofar as it divides the average individual's willingness to pay for a given reduction in risk by that risk reduction, to normalize the value on a "per-life" basis.
Though widely used, the VSL has never been without controversy. One prominent example of a controversy arose in the United States in 2003 with the debate over the "senior death discount," in which the US Environmental Protection Agency (EPA) set a lower value for the VSLs of elderly citizens than for younger citizens, to account for their fewer remaining lifeyears. Popular outcry against this senior death "discount," given full voice in the US Congress, forced the EPA to retreat. Dismayed, economists in turn criticized Congress for political interference with rational, economic policy-making (see e.g. Viscusi 2009a).
In a comment on that view, Fourcade (2009) has argued that too often economists fail to recognize that they are but one voice in wider political debates about both social values and, materially, the allocation of resources. Indeed, as Porter (1995) has argued, the historical rise of benefit-cost analysis stems from its very appeal as a way to mediate such political conflicts; as such, it is not surprising that benefit-cost analysts sometimes finds themselves caught in the middle of them. In any case, Fourcade argues, the public has a right to enter the political debate, even if it is to reject monetization as demeaning.
Recognizing that economists are operating in a marketplace of ideas in which their paradigm is but one competitor, Cameron (2010) has called for "euthanizing" the term "value of a statistical life" and statistical lives as a unit of account. She argues that this unappealing term is a colossal failure of marketing. It misleads the public, who interpret "value" as intrinsic worth rather than a monetary measure and who understandably interpret "lives" as just that, rather than risks. It is, after all, a lot to ask of the adjective "statistical" to not only modify the noun "life" but to transform it into "risk!" Inevitably, this conflation of the notion of "lives" and "risk" leads to misunderstanding and, in turn, to needless political controversy. Cameron suggests replacing the VSL terminology with "willingness to swap" money for "microrisks."
In this paper, I trace the history of the concept of the VSL and show that such controversies are nothing new. As noted above, the first use of the term "value of statistical life" was by Schelling (1968) in his essay, "The Life You Save May Be your Own." But Schelling's piece did  not rise out of a vacuum. Its origins can be traced back another twenty years, to a controversy at the RAND Corporation following its very earliest applications of operations research (OR) to defense planning. At that time, the US Air Force (USAF) brought the same kind of political interference that was to come again with the debate over the senior discount. But, ironically, it was only this pressure from the USAF that forced RAND to think about the role of lives in its optimization framework, a problem that eventually would attract Schelling's attention.
Thus, the VSL is not only well acquainted with political controversy; it was born from it. Moreover, as we will see, this history suggests a further irony. Arguably, historically it was the very finessing of the twin notions of lives and mortality risk, which as Cameron argues has fed the political fires in recent years, which overcame the political problems in the first place and facilitated the monetization of mortality risks in benefit-cost analysis. To measure the benefits of policies that would save lives would seem to require a value of life, but that raises difficult measurement issues. Values for risk reduction are measurable, but answer a different policy question. The notion of the "value of statistical life" occupies an intellectual middle ground.

India's UID

Past posts have noted developments regarding the biometric-based UID scheme in India, discussed in 'One card to rule them all? Privacy, biometric cards and national registration in India' in (2010) 6(8) Privacy Law Bulletin 67.

'Subverting ID from Above and Below: The Uncertain Shaping of India's New Instrument of E-Governance' by Ursula Rao and Graham Greenleaf in (2013) Surveillance & Society traces
the contours of a new biometric project in India that aims to develop a universal biometric database for the unique identification of India’s residents (UID, The Indian Unique Identification Project). It was launched in 2009 and by mid-2013 registered 430 million enrolments, making it the largest biometric experiment in the world. What is the rationale for and structure of this new instrument of governance and how does it affect the relation between citizens and state institutions? We discuss the legal framing of the project and present an ethnographic case study about its implementation among poor people in Delhi. We argue that within the heterogeneous social space of India the biometric project has opened up a terrain for multiple social negotiations. While the new technology propels fantasies about a corruption free well-ordered society the implementation runs up against innumerable challenges. The project struggles to find a definite legal form and suitable goals. Furthermore, the emerging link between people, computer generated data and projects of governance remains weak. By unpacking the relation between new technologies, emerging legalities, cultural bodies and social classifications, we evidence that UID is not one but many projects. Rather than a truth statement about identity UID is a ground for testing new relations between citizens and the state. They concern political question of the desire for order versus fear of control, and epistemological question of the inter-relation between regimes of transparency and social complexity.

11 December 2013

Sexting

The Victorian Government has released its brief response [PDF] to the state parliament's report on sexting noted earlier this year.

Unsurprisingly the Government rejected Recommendation 12, ie that
legislation to create a statutory cause of action for invasion of privacy by the misuse of private information, following recommendations 23, 25, 27, and 29 to 33 of the Victorian Law Reform Commission’s Surveillance in Public Places: Final Report 18 (2010).
It similarly has not embraced Recommendation 13 regarding establishment of a Digital Communications Tribunal (as a stand-alone body or as a ‘list’ within the Victorian Civil & Administrative Tribunal) to deal with complaints about harmful digital communications.

The specific responses to the other recommendations are as follows -
R1  -  research to examine qualitative and quantitative aspects of sexting practices by children and adults in Victoria.
  • recommendation accepted in principle, with research to be undertaken by Australian Institute of Criminology
R2 -  Victorian schools to adopt holistic, integrated programs for internet and communications technologies awareness and safety
  •  development of 'resilience framework' etc underway
R3 -  encouragement of current and pre-service teachers to take part in professional development programs focusing on cybersafety education.
  • work underway
R4 - educational and media campaigns directed toward sexting focus on the appropriateness of the behaviour of people who distribute intimate images or media without consent, rather than on the person who initially creates the intimate images or media.
  • work underway
R5 - review by Victoria Police of diversion policies for adults charged with offences in relation to exploitative sexting-type behaviour.
  •  review to be undertaken
R6 -  legislation to amend each of the child pornography offences in the Crimes Act 1958 (Vic) and the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic).
  •  legislation to be introduced (reportedly with a Bill being introduced before Christmas 2013)
R7 - the Government advocate that the Commonwealth, States and Territories amend their criminal legislation to provide defences to child pornography offences, consistent with the new Victorian defences. 
  • advocacy to be undertaken
R8 - adoption of an express policy to not prosecute Commonwealth child pornography offences where an accused person would have a valid defence to child pornography charges under Victorian legislation.
  • investigation to be undertaken
R9 - introduction of a specific offence for sexting to the Summary Offences Act 1966 (Vic).
  • recommendation accepted, with legislation to be introduced
R10 - that if R6 and R9 are not accepted in full, the  Government introduce legislation to amend the Sex Offenders Registration Act 2004 (Vic) so that sentencing judges have discretion whether to order that an adult offender convicted of a sexting-related offence be listed on the Sex Offenders Register.
  • NA, given acceptance of R6 and R9
R11 - establishment of a mechanism to review the registration of any person currently listed on the Sex Offenders Register, where that person would have had a defence under legislation introduced in accordance with R6.
  • review to be undertaken
From a privacy (and personality rights) perspective the most interesting point is the response to R9, with establishment of an offence potentially acting as a deterrent for invasions of privacy in the form of nonconsensual sexting.


The traditional freedom to sleep under bridges

The national Attorney-General, emulating the Cameron-Clegg government, has announced that the Australian Law Reform Commission will "review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges". Sound the trumpet, bang the drum, and don't wish for a Charter of Rights and Freedoms!

Senator Brandis indicates that
the review will be one of the most comprehensive and important ever undertaken by the ALRC.
“This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia,” said Senator Brandis.
“I have asked the Commission to identify where traditional rights, freedoms and privileges are unnecessarily compromised within the legal structure of the Commonwealth. Where encroachments exist, the Commission will determine whether they are justified.
“For too long we have seen freedoms of the individual diminish and become devalued. The Coalition Government will strive to protect and restore them.”
“Freedoms are some of the most fundamental of all human rights. They underpin the principles of democracy and we cannot take them for granted.
“The Commission will focus in particular upon commercial and corporate regulation; environmental regulation; and workplace relations.”
A legal realist might be forgiven that the review is intended to reinforce the freedoms of the privileged. As I commented earlier today, both rich and poor alike enjoy a traditional freedom to sleep under bridges but the rich rarely choose to exercise that freedom (no doubt sensibly, because identification as a person of no fixed address can attract unwelcome attention by law enforcement personnel).

The ALRC is to undertake an "identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified".

What are those laws? They are to be "understood as laws" that:
  • reverse or shift the burden of proof;
  • deny procedural fairness to persons affected by the exercise of public power;
  • exclude the right to claim the privilege of self-incrimination;
  • abrogate legal professional privilege;
  • apply strict or absolute liability to all physical elements of a criminal offence;
  • interfere with freedom of speech;
  • interfere with freedom of religion;
  • interfere with vested property rights;
  • interfere with freedom of association;
  • interfere with freedom of movement;
  • disregard common law protection of personal reputation;
  • authorise the commission of a tort;
  • inappropriately delegate legislative power to the Executive;
  • give executive immunities a wide application;
  • retrospectively change rights and obligations;
  • retrospectively extend criminal law;
  • alter criminal law practices based on the principle of a fair trial;
  • permit an appeal from an acquittal; and
  • restrict access to the courts.
No reference to privacy, regrettable because a freedom from interference is distinctly traditional and is encapsulated in tags such as 'an Englishman's home is his castle'.

Although all persons are equal before the law some are more equal than others. The Commission is to focus on commercial and corporate regulation; environmental regulation; and workplace relations.

The Rule of Law Foundation - fine folk horrified by the prospect of a privacy tort - has hailed the Brandis announcement, presumably as restoring the traditional freedom of the press. Elsewhere I've commented that freedom of the press is often most enjoyed by people who own a press and can afford the silks that give effect to that freedom. We should all be so lucky.

The Centre for Independent Studies has meanwhile published 'Multiculturalism and the fetish of diversity' by Peter Kurti, a report [PDF] arguing that "a narrow focus on promoting diversity threatens individual liberty by promoting the interests of particular groups over those of the individual".
When it first emerged as an official policy in the 1970s, multiculturalism was a response to the legacy of the White Australia policy. Multiculturalism continues to enjoy broad popular support, with Australians broadly accepting of reasonably high levels of immigration and the benefits of cultural diversity in society.
For example, the 2012 Scanlon Foundation’s Mapping Social Cohesion report showed a steady support of between 67% (2007) and 65% (2012) for immigration in Australia. The 2013 report showed that our support for multiculturalism, and appreciation of its benefits, remains high (84%).
But there are disturbing trends in this success story. Multiculturalism is raising important questions about the way public policy promotes the peaceful coexistence of diverse people in a single polity.
In its ‘soft’ form, multiculturalism simply named that traditional willingness of Australians to tolerate cultural and ethnic diversity and make newcomers reasonably welcome.
But then it began to give way to a new, ‘hard’ form of multiculturalism. This form was fuelled by a determination to eliminate racism and a fear that unless carefully managed, diversity would cause intolerance and racist prejudice to flourish among Anglo-Celtic Australians.
‘Hard’ multiculturalism may have been well intentioned to begin with. However, over time, concern about protecting diversity has turned into a determined drive to promote it as both a moral and political end. The proponents of ‘hard’ multiculturalism argued that unless diversity was managed by the state, the ‘fair go’ would not be extended equally to all Australians.
This determination to promote diversity has become an obsession that has driven ‘hard’ multiculturalism beyond a concern to eradicate racial discrimination; it has begun to cast doubt on the very legitimacy of the notion of a core national culture.
Diversity has come to be seen as not just a policy outcome but a moral objective that must be promoted as an end in itself.
This narrow focus on promoting diversity threatens individual liberty by promoting the interests of particular groups over those of the individual. In doing so, it diminishes the liberty of every citizen.
It is time for the fetish of diversity to end, and the advance of hard multiculturalism checked. In pursuing a vested notion of social justice, the demand for equal recognition should not trump the demand for liberty.
The fairest way to accommodate differences is not by eradicating perceived inequality as a matter of public policy. Freedom of the individual is the only acceptable basis for a healthy, descriptively multicultural society.
Once the rule of law determines the extent of permissible behaviours, the state should get out of the business of supporting or maintaining the cultural, ethnic or religious components of identity.

10 December 2013

Covert Policing

The 115 page 'CAJ Policing Report (The Policing You Don't See)' (Transitional Justice Institute Research Paper No. 13-07) by Brian Gormally argues that
Covert policing - the practices of communication interception, surveillance, the use of informants and undercover operations - was used extensively during the Troubles in Northern Ireland. Covert policing is argued to have prolonged the conflict and did lasting and immense damage to the rule of law. After the signing of the peace agreement, the Northern Ireland police service undertook large-scale reforms which were designed to prevent the recurrence of such abuses. Yet the secret Security Service – implicated in past abuses – has not yet undertaken such reformation but has been put in charge of a highly important area of mainstream policing. MI5 maintains primacy in covert ‘national security’ policing and gives ‘strategic direction’ to the PSNI in this area. Despite its large role in policing and its lack of reform, governmental oversight of MI5 is limited and ineffective. Limited additional accountably measures were promised in the St Andrews Agreement but some of the most significant commitments, such as those to publish policy frameworks, have not been honoured. Instead, MI5 has been given control of one of the most sensitive areas of policing in Northern Ireland, operating undercover, without having been reformed, and without an accountability structure. This report develops a human rights based framework from international standards and the Patten Report and uses it to analyse past and present covert policing practice.
This report reflects on evidence of the involvement of police informants in serious criminality, which led to recommendations to improve legality and accountability of covert policing. However, since primacy in ‘national security’ policing was given to MI5 five years ago (2007), the research finds that there is a growing “accountability gap” over a large part of policing. This report explains that the UK level oversight of MI5 is plainly inadequate and that the local mechanisms that hold the PSNI to account are evaded by the Security Service. It argues that this situation falls woefully short of international standards and has the capacity to undermine confidence in policing as a whole.
The report states that -
The question this report explores is the extent to which a gap has emerged in the accountability framework in relation to the most controversial, risk-laden area of policing: covert policing – ‘the policing you don’t see.’ In relation to defining covert policing the Patten Report indicates it includes: “interception, surveillance, informants and undercover operations.” The Regulation of Investigatory Powers Act 2000 (RIPA) covers matters including the interception of communications, the acquisition and disclosure of data relating to communications, the carrying out of surveillance, and the use of agents and informants. In the past and current context of Northern Ireland, a great deal of covert policing is focused on what St Andrews described as ‘national security’ policing. This is the area of policing and security policy which gave rise to many of the most serious human rights concerns during the conflict relating to ‘collusion’, the State otherwise acting outside of the rule of law and impunity for unlawful State actions. This, in particular, included the controversial role of agents and informants. In this context policy, oversight and accountability arrangements for covert policing have profound implications for the administration of justice and human rights. Such reflections are particularly judicious given pending legislation to establish the ‘National Crime Agency’ and introduce it into Northern Ireland, a move that will further widen the emerging policing accountability gap.
This report contends that in contradiction to the Patten vision of a police service unfettered by direct political control and able to ensure accountability, since the St Andrews Agreement what has emerged is a parallel police force answerable to ‘direct rule’ Ministers and concentrated on perhaps the most sensitive area of policing. The transfer of policing and justice powers has made it even more obvious that a raft of ‘national security’ powers are in fact retained and exercised by the Northern Ireland Office (NIO). The St Andrews Agreement did promise additional ‘safeguards’ in relation to the MI5 transfer. However, as this report will show, at best it is not possible to tell if such safeguards are actually effective in practice. Even worse it will document how other promised safeguards have already been reneged on and others actually appear to have been used as a mechanism to further rollback accountability measures.
The first chapter of this report will draw on international standards and the recommendations of Patten to elaborate a human rights framework for covert policing. By this we mean the principles, methods of operation, and accountability mechanisms which can ensure that covert policing is human rights compliant.
The second chapter examines the evidence of past human rights abuses in covert policing in Northern Ireland. This does not pretend to be a comprehensive review of the subject. The chapter refers almost exclusively to official independent investigations by Stevens, the Police Ombudsman, Justice Cory and public inquiries. These investigations demonstrate both the need for a radical break with the past and the continuing importance of applying a human rights framework to covert policing for the present and future. The focus of these reports, and hence of chapter two and much of what follows in this report, is the element of covert policing which involves the running of what are called ‘agents’, ‘informers,’ ‘informants’ or, in some official documents ‘CHIS’ (Covert Human Intelligence Sources). These terms will be used interchangeably throughout the report.
The third chapter examines the specific role of MI5 during the conflict, as far as it is known from official reports and other sources, and what little we know of its operations since the St Andrews Agreement. This includes the impact of MI5 on the ‘counter-insurgency’ model of policing adopted in Northern Ireland, particularly following the 1981 Walker report, as well as the Security Service’s relationship with Government and other agencies. In relation to the current role of MI5 the limited information emerging from court cases and media reports is analysed.
The fourth chapter outlines and analyses the mechanisms that exist to officially provide accountability in respect of MI5. This includes the general UK-wide mechanisms such as the Intelligence Service Commissioner and Investigatory Powers Tribunal. It also includes analysis of the arrangements and safeguards envisaged in the St Andrews Agreement in relation to the transfer of primacy to MI5.
The final chapter provides a critique of the application and impact in practice of the St Andrews safeguards. It also benchmarks the arrangements following the transfer of primacy over ‘national security’ policing to MI5 against the human rights and Patten frameworks for covert policing outlined in the first chapter. This chapter examines the breadth of the accountability gap which has emerged since the transfer and concludes by exploring the question of who is running the most sensitive area of policing in Northern Ireland.

Healthcare

'Access to Health Care for Undocumented Migrants from a Human Rights Perspective: A Comparative Study of Denmark, Sweden and the Netherlands' by Dan Biswas, Brigit Toebes, Anders Hjern, Henry Ascher and Marie Nørredam in (2012) 14(2) Health and Human Rights comments that 
Undocumented migrants’ access to health care varies across Europe, and entitlements on national levels are often at odds with the rights stated in international human rights law. The aim of this study is to address undocumented migrants’ access to health care in Denmark, Sweden, and the Netherlands from a human rights perspective.
Based on desk research in October 2011, we identified national laws, policies, peer-reviewed studies, and grey literature concerning undocumented migrants’ access to health care in the three involved countries. Through treaties and related explanatory documents from the United Nations and the Council of Europe, we identified relevant international laws concerning the right to health and the rights of different groups of undocumented migrants. A synopsis of these laws is included in the analysis of the three countries.
Undocumented migrants in Denmark have the right to emergency care, while additional care is restricted and may be subject to payment. Undocumented migrants in Sweden have the right to emergency care only. There is an exception made for former asylum-seeking children, who have the same rights as Swedish citizens. In the Netherlands, undocumented migrants have greater entitlements and have access to primary, secondary and tertiary care, although shortcomings remain. All three countries have ratified international human rights treaties that include right of access to health care services. We identified international treaties from the United Nations and the Council of Europe that recognize a right to health for undocumented migrants and embrace governmental obligations to ensure the availability, accessibility, acceptability, and quality of health services, in particular for specific groups such as women and children.
In the Netherlands, undocumented migrants’ right to health care is largely acknowledged, while in Denmark and Sweden, there are more restrictions on access. This reveals major discrepancies in relation to international human rights law.

Status

'Anarchy, Status Updates, and Utopia' by James Grimmelmann in Pace Law Review (Forthcoming) argues that
Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Paypal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.
Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power there is also social power. Whenever people come together through software, they must agree on which software they will use. That agreement vests technical power in whoever controls the software. Social software cannot be completely free of coercion — not without ceasing to be social, or ceasing to be software.
Rule-of-law values are worth defending in the age of software empires, but they cannot be fully embedded in the software itself. Any technical design can always be changed through an exercise of social power. Software can help by making this coercion more obvious, or by requiring more people to join together in it, but it alone cannot fully protect users. Whatever limits make social software humane, fair, and free will have to come from somewhere else — they will have to come from We the Users. 

09 December 2013

Roots, Branches and Chainsaws

The Prime Minister has announced a 'root & branch' (no mention at this stage of applying chainsaws to sacred cows of the National Party variety) review of competition policy -
The Government will undertake a comprehensive review of competition laws and policy, the first in more than 20 years.
The ‘root and branch’ review delivers on a key election commitment and will help identify ways to build the economy and promote investment, growth and job creation.
The competition review will examine not only the current laws but the broader competition framework, to increase productivity and efficiency in markets, drive benefits to ease cost of living pressures and raise living standards for all Australians.
The last comprehensive review of competition policy – the Hilmer Review – was carried out in 1993 and much has changed in Australia’s economy since then.
Competition policy has contributed significantly to productivity and price changes in key sectors and in 2005 the Productivity Commission found that the changes resulting from the Hilmer Review increased Australia’s GDP by 2.5 per cent.
The Federal Government has provided the states and territories with draft terms of reference for a competition review. The review panel will be established shortly so that we can have a final report within 12 months.
This review is long overdue and will help identify microeconomic reforms and long-term improvements to build strong foundations for a more productive and competitive 21st century Australian economy.

MOOCs

Having emerged from the Graduate Certificate in Tertiary Education - "the horror, the horror" - I can savour The Maturing of the MOOC, a UK government report [PDF] that "aims to capture the state of knowledge and opinion about MOOCs and ODL, how they are evolving, and to identify issues that are important, whether consensual or controversial". It's a lit review of over 100 items.

The document comments -
Conflicting perspectives on MOOCs divide education communities
Elite institutions in The Academy, primarily leading US universities, are widely engaging enthusiastically in MOOCs by lending brand, content, funds, staff, badging and policy support. They see opportunities for brand enhancement, pedagogic experimentation, recruitment and business model innovation. (A few have actively disengaged (Duke, Amherst) but these are a minority.) The pro-MOOC impetus is producing a conspicuous literature. It reports positively on these experiments, describing a process of maturing, expansion and deepening. There are dissident voices in the elite institutions, however, and the arguments they are assembling against MOOCs remain strong and vocal.
Smaller or less prestigious institutions have not so far engaged strongly with MOOCs, either through lack of appetite, lack of capacity, or lack of opportunity. Often, smaller players who have considered the MOOC issue have sounded alarm bells – they see threats of being left behind, of losing market share and recruits. They also charge that MOOCs are unable to serve learners with more complex learning needs. Although such perspectives would appear to represent the position of the vast bulk of post-16 educational activity, the sceptical literature reflecting these concerns is less visible and less extensive.
Learning Practitioners disagree about the value of MOOCs
Learning practitioners have engaged by contributing extensive critical review literature in peer-reviewed journals, the specialist educational press, blogs, and the general media. Two conflicting strands of opinion run in the critical practitioner literature.
1. A strand of enthusiasts welcomes the shake-up and energy MOOCs bring to learning, teaching and assessment. They report positively on learning experiences and innovative formats of pedagogy, and spotlight themes such as access, empowerment, relationship building and community. This strand is particularly prevalent in the general press. Examples include Shirky and Legon.
2. A strand of sceptics tempers the general enthusiasm along two themes:
The supposed benefits of MOOCs were already realised in previous generations of ODL innovation – and the innovations of MOOCs are the victory of packaging over content
The MOOC format itself suffers from weaknesses around access, content, quality of learning, accreditation, pedagogy, poor engagement of weaker learners, exclusion of learners without specific networking skills.
Formal comprehensive analyses of MOOCs mostly concur that they are disruptive and possibly threatening to current HE models
National and international authorities, research brands, think tanks and professional bodies have actively commissioned formal expert appraisals and overviews of MOOCs. There is often a brief to explore issues of national strategic importance. The focus of these overviews is more the Universities, than the learners.
This literature, typically more impartial and comprehensive than the other types, tends to acknowledge (with a few exceptions) that MOOCs bring an impetus of reform, research and innovation to the Academy. All reports foresee dramatic imminent change as a result. Some suggest, however, that the MOOC proposition lacks novelty, and the scale of MOOC impact, along with its potential to transform Universities, may be over-hyped. This literature detects failings in the MOOC format around sustainability, quality, equality, equity, financial viability, learning quality and accreditation. However, it also reports initiatives to address them, and consistently identifies MOOCs as a tipping point for HE.
Reporting of MOOC learner experiences is positive
Learners who have completed MOOCs emerge from the literature as relatively enthusiastic about the MOOC format. Different kinds of learner experience have been identified, and passive consumption or lurking in a MOOC is a common pattern. The consensus is growing that lurking and auditing have validity as a learning activity within MOOCs, and that non-completion is not a significant problem in this learning format. The benefits of MOOCs to learners come in the form of access to high quality material, and new kinds of collaborative learning experiences in some types of MOOC. Most studies show that the MOOC experience demands skill and aptitude in online social networking, and that these baseline capabilities are not widely enough shared for MOOCs to present a realistic format for many learners. Credit does not appear to be a major motivation for learners who have chosen MOOCs so far; however, there are clear signs that this will change.
The MOOC is maturing – and engaging with its business and accreditation issues
The Burning Issue in the MOOCosphere is the search for business models – and all the associated sub-issues of scale, sustainability monetisation, accreditation for MOOC learning and openness. Our report focuses in depth on analysis of this topic in the literature. The survey suggests that after a phase of broad experimentation, a process of maturation is in place. MOOCs are heading to become a significant and possibly a standard element of credentialed University education, exploiting new pedagogical models, discovering revenue and lowering costs.
The authors comment that "In view of the level of controversy, and the different approaches of different types of literature, we have divided the MOOC literature into three classifications" -
  1. Contributions by individual authors on MOOCs which are often polemical and even parti-pris. These cover MOOCs from the perspective of institutions, and learners
2. Formal and comprehensive surveys carried out with methodological approaches
3. General press writing and journalism.
The overview literature contributed by informed writers covers the MOOC phenomenon from two distinct perspectives: its impact on education institutions, and its impact on learners.
Whether the MOOC is a welcome or a threatening prospect for HEIs divides informed writers. There is consensus that MOOCs, correctly deployed, do offer education institutions a useful lever for restructuring and transition. On balance, the literature expresses the view that MOOCs will probably not threaten traditional forms of University teaching in the short term, but a significant sub-group of credible writers forsees wide and sudden changes and disruptions to HEIs from MOOCs.
Learners’ experiences in MOOCs are examined in literature, both through statistical analysis and anecdote. The statistical approach has yielded insights about different types of learner behaviour in MOOCs, creating a distinction between learners who are “auditing”, “sampling”, “disengaging” and “completing”. Statistical analysis has also captured a trend of diminishing learner participation in MOOCs over course durations. Writers assess MOOCs as challenging environments which can discourage or disorientate many learners, as witnessed by the low percentages completing. However, the literature also shows that mere completion is not a relevant metric, that learners participate in many valid ways, and that those who do complete MOOCs have high levels of satisfaction. There is as yet no agreed satisfactory system of measurement for assessing the quality of MOOCs from the learners’ point of view.
Formal analytical reporting of the MOOC issue almost invariably diagnoses MOOCs as potentially disruptive and likely to threaten existing practices. With the exception of Canada’s early “MOOC Model” report written in the optimistic moment of the first cMOOCs, authorities who commission or produce systematic MOOC analyses receive variations on the same conclusion: MOOC formats will pose huge challenges for existing HEI business models, for institutions at all levels, for pedagogy, and for international education.
Analyses vary in the amount of positive energisation they discern alongside these disruptive elements of MOOCs. At their most benign, MOOCs may drive innovation and experimentation, leading to improved learning and lower costs and a managed restructuring. At their most ferocious, MOOCs will force many HE players to radically transform themselves, or die if they fail to adapt, and a chaotic rout of the sector is in prospect.
Challenges for learners also emerge as a consistent thread of analysis. There will be benefits in terms of flexible pathways and accessible affordable learning. However, the literacies and skills required to benefit from MOOCs are very specific, and existing educational curricula may be unsuited.
Journalistic writing is significant for this topic, because popular discourse in mainstream media titles is shaping the MOOC trajectory. Public attention creates a bubble. The Maturing of the MOOC of hype and a “must have” factor, which may be contributing to a herd mentality and a stampede to produce MOOCs
Positively-spun press articles hail MOOCs as the hi-tech engine of a transformative revolution that will remake education as a highly engaging, open and low cost activity.
Critical journalism decries the hype surrounding MOOCs and claims that their benefits are illusory, and that in reality MOOCs harbour undesirable and inappropriate behaviours.
Clear numerical evidence of the balance between these two opposing “spins” of press coverage is hard to obtain. However, anecdote, observation and a count of search query returns suggests that the proportion of negative commentary may be rising.
The burning issues for MOOCs are the exploration of a viable business model and the accreditation of MOOC learning.
The maturing of the MOOC format is attested to in the literature by analysis of an emergent (and still incomplete) picture of MOOCs’ falling costs and growing revenues. Whether this adds up to a viable business model is being tested with a new generation of low-cost accredited degrees based on MOOC principles being prepared by some leading US colleges.
Accreditation is discussed in the literature mostly to the extent that it offers a route to revenue for US MOOC platforms and possibly for colleges. This debate has not been seriously applied to the UK yet – but there is every reason to expect it will come. For the time being, discussion of the models for assessing learning, which would be essential to credentialed outcomes, is not highly developed. However, some new potential methods, specific to MOOC technology, are starting to emerge.
Some specific issues for MOOCs in HE and FE are handled in separate sections:  Education theory: are MOOCs an innovation or a continuation of prior ODL; Futurelearn – the UK MOOC platform: what will it offer; FE – can the sector profit from the maturing of MOOC formats; Completion and drop-out rates and metrics for MOOC quality; Technology evolution: how will learner analytics develop to enhance MOOCs
The MOOC skillset – what skills will a MOOC-shaped world require? The extent to which MOOCs are a genuine innovation, or a mere repackaging of prior heritage in open learning, is a significant theme in the academic literature. Overall, we see that a wide range of views obtain on this topic, with many competing theories and models advanced to account for different pedagogical models. ...
The literature on MOOCs and FE is sparse. However, primary research shows that the UK FE sector is adequately aware of the issue. Educational experimentation and development of online pedagogy is, however, taking other non-MOOC tracks for the time being. Marginal uses, for example in FE teacher development, look well established. The US community college sector shows ways in which FE might exploit MOOC opportunities. These involve partnership with MOOC-producing HE.
On MOOC drop-out rates, authors argue from a variety of perspectives that the high crude drop-out rates of MOOCs are an irrelevant issue, despite the frequent reference to these numbers in popular discourse. Reasons include the high drop-out rate in many types of learning, and the evidence that with no penalty for exit or entry, lapsing from MOOC enrolments is simply not a significant decision.
Learner analytics technology, already theorised and explored in a mature and established debate rooted in the ODL literature, comes to its full potential with the scale and mechanisation of MOOCs. Applications will enable students to be served more engaging material based on their individual profiles. Adaptive learning is a real possibility. Interventions can be targeted to secure completion.
The networking, reputational and learning skills that MOOC environments require for successful learning are an important issue for many writers. Online autonomy, group formation and inclusion/exclusion feelings among learners are a vital dynamic in MOOC learning, and are probably insufficiently understood. It is also likely that primary and secondary education curricula are not addressing these learning skills adequately.
MOOCs demand policy and research responses from policymakers