21 December 2013

Deleuze

'Atmospheres of Law: Senses, Affects, Lawscapes' by Andreas Philippopoulos-Mihalopoulos in (2013) 2(6) Emotion, Space and Society is described by the author thus -
 In this article, I deal with airs and sounds and scents, while keeping an eye on the law. My field of enquiry is the interstitial area between sensory and affective occurrences, namely sensory experiences that are traditionally thought to be a causal result of external stimuli, and affective experiences that are mostly associated with emotional changes and generally allude to something internal. I am arguing that there is no constructive difference between internal and external origin of occurrences. In its stead, I suggest the concept of atmosphere, namely an attempt at understanding affective occurrences as excessive, collective, spatial and elemental. However, it quickly becomes apparent that an atmosphere is legally determined. The law controls affective occurrences by regulating property of sensory stimulation. At the same time, the law guides bodies into corridors of sensory compulsion - an aspect of which is consumerism in capitalist societies. The law achieves this by allowing certain sensory options to come forth while suppressing others, something which is particularly obvious in cases of intellectual property protection that capture the sensorial. I deal with the law in its material, spatial manifestation and in particular through what I have called the ‘lawscape’, namely the fusion of space and normativity. I employ a broadly Deleuzian methodology with insights from radical geography, affective studies, urban and critical legal theory in order to develop and link the various parts of the text.
Indeed.

From there it is on to -
Simply put, the lawscape is the epistemological and ontological tautology of law and the city (Philippopoulos-Mihalopoulos, 2007b, 2008). The neologism risks making the use of individual terms redundant. A city without law is a holy city of justice, perpetually floating in a post-conflict space where everything is light and forgiveness. Likewise, a law without a city is a law without materiality, an abstract, universal, immutable law that trammels the globe. Both the above are fantastic beasts that operate at best as horizon and at worst as cheap rhetoric. Think of the horizon of justice as a justice always-to-come, a messianic justice that demands present calculation (Derrida, 1992). Law is needed in the calculation part. After that, and once justice has been achieved (if ever), the law recedes for a well-deserved rest, since it becomes superfluous when the city is just. The law only emerges in conflict, in quest (for justice), and in need to capture the future. A just city, however, has captured time itself, engraved it right here, onto the surface of its urban sprawl. A just city is a theological concept and cannot accommodate anything that falls sort of divinity (contra Fainstein, 2010). Likewise, law as an abstract universal that is free from the constraints of matter and space is one of the illusions law (and some existing legal theory) insists on maintaining. Law as control is by definition material and more specifically spatial, for it is only through its very own emplaced body that the law can exert its power. Law comes from within the controlled, their bodies of appearance and their corridors of movement, as post-colonial theory has taught us (Bhabha, 2005). This is more than just biopolitical control, since it addresses the material nature of the law itself. To posit a law without a city is tantamount to positing, say, a universal human right that applies to everyone, without the need for contextualisation, namely that supreme need for closing in and eavesdropping on this particular body’s specific circumstances. For clarification’s sake, I should mention that by law I understand both standard law and regulation, as well as the generalised diffused normativity that characterises life - what Spinoza (2007) has called “rules for living”. This includes human and other bodies as well as objects. Just as a body, an object is already functionalised, normalised, never independent of its normative position in the world. The law is an expansive institutional affect that permeates the formal and the informal. What is remarkable, however, is that the latter diffused form of normativity exhibits the paradox of appearing both as a corporeally embedded preference for individual self-preservation, and a feature compliant with the current surveillance and control culture. This sense of normativity takes few risks and delegates conflict resolution to what it considers to be higher levels of judgement-making  -  indeed, to go back to Spinoza, a sort of guardian authority that pursues efficiently the individual interests of its subjects. The phenomenon of the “nanny state” is both an anathema and a desire, a direct result of which is the perceived political apathy. It is not all bleak though. This is a comfortable sense of normativity that covers specific needs, such as issues of belonging, constructions of home and community, as well as emplacement. It is, properly speaking, a product of its own spatiotemporal conditions, and as such it manages to make itself invisible and neutral, to recede from the surface and conceal its force. This works both ways: legal subjects recede from actively questioning the law (complacency or reassurance), and the law recedes from claiming a role in the construction of the everyday. This does not mean that the law is not there  -  simply that it is not perceived as being constantly there. This is a strategic move that aims at diffusing and dissimulating the force of law, offering instead a smooth, anomic atmosphere. Even so, things can on occasion overflow, exceed themselves and embark upon a flight of radical self-redefinition. In such cases, the already ‘contagious’ (in the sense of epidemic imitating, see Tarde, 1903) nature of the normative doubles up and becomes rapid, horizontal and fiery, engendering such eruptions as demonstrations, revolts, revolutions, coups. In all these cases, the law does not leave the stage. It is merely supplemented by a different normative direction and sometimes a higher velocity.
With city I understand the thick spatiality of bodies (humans, non-humans, linguistic, spatial, disciplinary), buildings, objects, animals, vegetables, minerals, money, communication, silence, open spaces, air, water, and so on. This spatiality is a fractal manifestation of what I have elsewhere called ‘open ecology’ (Philippopoulos-Mihalopoulos, 2011), namely the assemblage of the natural, the human, the artificial, the scientific, the political, the economic and so on, on a plane of contingency and fluid boundaries, or as Andrea Brighenti puts it, “a series of territories, which can be thought of as superimposed.or mutually exclusive.or even criss-crossed and overlapping” (2006: 80). The open ecology of the city is simultaneously open and closed. Hinterlands, globe, outer space, hybrid technohumans, technologically manipulated meteorological phenomena ‘and so on’ (see Anna Grear’s 2011 collapse of the anthropomorphic effigy) are all grounded on the urban materiality of here, itself open to any definition of materiality may come from over there. Thus, while infinite, open ecology is entirely immanent. Any transcending movement is inscribed within, in the recesses of the unknowable here. There is nothing that is not, actually or virtually, included in open ecology. And nothing that is not, actually or virtually, connected to everything else in some form of connection that enables everything to become everything else. This is a processual rather than value-based ecology and, to quote Deleuze and Guattari (1986: 4), “we make no distinction between man and nature: the human essence of nature and the natural essence of man become one within nature in the form of production of industry”. Instead of a distinction, a fractal fluctuation between human/artificial and natural. Instead of one city, an infinite multiplicity that repeats itself as difference. The lawscape therefore operates as a surface on which the open normativity of the law and the open ecology of the city emerge. Yet it does not constitute a new unity. The surface of the lawscape enables the reciprocal dissimulation of lawand the city. Thus, in the lawscape, the city sheds its asphyxiating normativity just as the law sheds its ever-present materiality. Law and the city are mutually exclusive in their emergence, thus dissimulating and diffusing the oppressive nature of the lawscape. In that way they can both carry on with their self-perpetuating myths, such as the city as an accueil of difference and the breeding ground of communitarian nostalgia, and of the law as a universal good that has the potential of universalising values such as right and wrong. Some elements remain, however. First, the inescapable lawscape. Wherever one is in the city (and arguably beyond it, in its global hinterlands), one swims with and against the various normative flows that constitute the materiality of its lawscape. Second, the posthuman lawscape. Defining the city as a slice of open ecology means that the lawscape lies beyond such distinctions as human/natural/artificial (Wolfe, 2009). Third, the fractal lawscape. While each lawscape is different, they all fractally repeat the reciprocally invisibilising embrace between open normativity and open ecology. There is no global lawscape that operates as a semantic and material common surface for the totality of cities, yet there is a plane of immanence, not unlike the earth or nature as Deleuze and Guattari put it (1986). This plane trammels the lawscapes like a line of flight, namely an internal movement that begins and ends within the plane of immanence yet pushes the edges of this plane always further. An example of such a line of flight would be the creative or competitive edge of any city that wants to attract the globe and that, by placing itself alongside other cities, manages to develop creatively its own potential.
For fans of Theory Bingo we have Bhabha, Deleuze, Derrida, Guattari, Lyotard, Sloterdijk and Virilio.

Food Crime

The UK Government has released the interim 'food crime' report [PDF], ie the review by Professor Chris Elliott into the 'Integrity and Assurance of Food Supply Networks' following revelations of horsemeat lasagna and other delights. (One of my more appreciative students has of course asked about kitten pie.)

Elliott comments that
This review was prompted by growing concerns about the systems used to deter, identify and prosecute food adulteration. The ‘horse meat crisis’ of 2013 was an obvious trigger, but so too were concerns about the increasing potential for food fraud, which I will refer to as ‘food crime’, in many instances due to the complex, widespread and organised nature of these activities nationally and internationally. These incidents can have a huge negative impact on both consumer confidence about the food they eat, and on the reputation and finances of food businesses.
I was asked to take evidence from the widest range of views and interests and issued a call for evidence in June 2013. ... With the help of a small but excellent team of subject matter experts, (see Annex B) I have taken a systems approach in making recommendations on how to make it much more difficult for criminals to operate in food supply networks and thus provide the UK consumer with safer and more authentic food.  ...
UK consumers have access to perhaps the safest food in the world and all those involved in supplying food and for developing and enforcing legislation should be commended for what has been achieved. However, our focus now urgently needs to turn to tackling food crime. Due to very limited intelligence it is hard to gauge the scale of this in our food supply chains. Estimates of the extent of criminality in food provision vary widely. In the UK we don’t know the scope or extent of the problem. Data collection and well structured surveys should be considered as a matter of urgency to fill in this knowledge gap. The food industry’s own testing for horse DNA earlier this year identified contamination in 1% of UK samples and over 4% in Europe.
Food crime is a global problem and not one which impacts on the UK alone. The UK food and beverage market (including food drink and catering) in 2012 was estimated by Defra to be worth £188bn, so the cost of criminal activity may be substantial. Limited intelligence has been collected and it is not possible to gauge whether we are dealing mainly with systematic criminality perpetrated by individuals and groups operating exclusively in the food chain, or whether organized criminal networks (i.e. those already established in activities such as trafficking drugs, cigarettes, fuel, firearms or humans) have moved into food crime. Conventional police wisdom suggests that there is no crossover but intelligence related to food-crime has never been collected systematically. I regard this as an unknown that requires urgent attention because of the ease with which money can be made from food fraud. In order to deal with the problem we must know the extent of the problem.
Food crime is an emerging issue for all of Europe and The European Commission has taken a proactive stance by establishing a new food fraud unit within DG SANCO. The recent award of substantial research funding via a Framework 7 project on ‘Food Integrity’ with the Food and Environment Research Agency (FERA) as co-ordinators will play a major role in the harmonisation of European efforts to combat food crime.
As I have taken a systems approach to ensuring the integrity and assurance of food supply networks it means no one part of the report can stand alone: my recommendations are interdependent, and based on the acceptance of the principles and characteristics set out below, of an approach that would support public confidence that those responsible for food supply networks are paying adequate regard to integrity and assurance. ...
The systems approach I have recommended is intended to provide a framework to allow the development of a national food crime prevention strategy. Making it much more difficult for criminals to operate in food networks by introducing new measures to check, test and investigate any suspicious activity. Ultimately those caught perpetrating criminal activity must be severely punished by the law to send a clear message to those thinking of conducting similar criminal activity not to operate in ‘our space’. In order to do this we need new and more rigorous measures of auditing and testing supply networks and a robust system of investigating and prosecuting wrong doers.
This interim report deals with each of these elements in turn, describing each of the elements of the systems approach, why I believe they are important, the problems which I believe exist and the extent to which there is capacity to improve the application of existing resource where it is or could be shared.
For each element of this systems approach there are clear roles and responsibilities for Government and industry. There is no single method of assuring the integrity of our food and my recommendations are directed at industry, regulators, enforcement bodies and consumers accordingly. Some of my proposals will require a change of culture within the industry and the Food Standards Agency so that they can work better together to protect consumers. I believe, however, that a new approach to tackle food crime as set out in this interim report will benefit industry by supporting and protecting the vast majority who are committed to complying with the law.
My systems approach comprises the following characteristics:
Consumers First - Industry, government and enforcement agencies should, as a precautionary principle, always put the needs of consumers above all other considerations, and this means giving food safety and food crime prevention – i.e. the deterrence of dishonest behaviour – absolute priority over other objectives. In this section of the report I seek to provide an overview of food crime and present my view on the importance of consumer confidence. Whilst identifying best practice, I recommend that all parties involved in the governance of the food chain should prioritise consumer confidence in the food they eat over all other aims; food crime prevention must be the primary focus (see R1 and 2)
Zero Tolerance - In sectors where margins are tight and the potential for fraud is high, even minor dishonesties must be discouraged and the response to major dishonesties deliberately punitive. My recommendations in this section focus on the actions industry can take to ensure that ‘casual dishonesty’ is discouraged and how their individual businesses practices and culture can be adapted to prevent and protect against food crime (see R3-9).
Intelligence Gathering - There needs to be shared investment between Government and industry in intelligence gathering and sharing, although to ensure its effectiveness all organisations must have regard to the sensitivities of the market. Here I set out what I consider to be the essential requirements of effective intelligence gathering and dissemination mechanisms; there is a role for both regulators and industry to have their own intelligence services and more action needs to be taken to ensure they derive the maximum benefit from one another (see R10-18).
Laboratory Services - Those involved with audit, inspection and enforcement must have access to resilient, sustainable laboratory services that use standardised, validated methodologies. My recommendations in this section focus on two areas; first ensuring that all food authenticity testing follows standardised procedures, using recognised, validated methodologies, and secondly creating a robust, sustainable public sector laboratory system that can be considered to be a national asset (see R19-23).
Audit - Industry and regulators must give weight to audit and assurance regimes, so as to allow credit where it is due; but also try to minimise duplication where possible. Audits of food supplies by producers, storage facilities, processors and retailers are undertaken both routinely and randomly. In this section I set out the key changes that I believe need to be made to audits in order to make them more effective, less burdensome and ultimately more focused on preventing food crime (see R24-35).
Government Support - Government support for the integrity and assurance of food supply networks is kept specific, measurable, attainable, realistic and timely (SMART). Here my recommendations focus on the Government bodies that I believe have a key role in the prevention and protection of food crime. I call for better partnership working between Government departments and a more robust FSA, still independent but with greater connectivity to Ministers. I also set out my views on why I think that it is necessary, to bring back the Food Authenticity Programme into the FSA whilst Defra retain policy of Country of Origin Labelling and other competitiveness based labelling policy, such as Product of Designated Origin (see R36-40).
Leadership - There is clear leadership and coordination of investigations and prosecutions; and the public interest is recognised in active enforcement and significant penalties for significant food crimes. My recommendations in this section set out the fundamental principles for establishing a dedicated Food Crime Unit, hosted within the FSA, which I believe to be necessary in order to develop the necessary expertise in order to undertake investigations in what may be serious organised crime (see R41-43).
Crisis Management - When a serious incident occurs the necessary mechanisms are in place so that regulators and industry can deal with it effectively. My final section focuses on the measures that need to be taken in order to ensure clarity of roles and responsibilities in the event of a food crisis and makes recommendations as to how these can be achieved (see R44-48).

Constitutionalism

Having been given a copy of Carl Schmitt's 1921 Dictatorship: From the origin of the modern concept of sovereignty to proletarian class struggle (Polity Press, 2014) for Christmas - more entertaining than socks, more emetic than chocolate, less persuasive than Ernst Fraenkel's The Dual State: A Contribution to the Theory of Dictatorship (Oxford University Press, 1941) - it's useful to encounter the 110 page 'Authoritarian Constitutionalism' (Harvard Public Law Working Paper No. 13-47) by Mark Tushnet.

He argues that
Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively.
The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished.
I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair.
The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.

Surveillance and the social

'The Legality of the National Security Agency's Bulk Data Surveillance Programs' by John Yoo in Harvard Journal of Law and Public Policy argues that
Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States.
Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.
Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.
A perspective on Yoo is provided in the mordant article noted here.

'Regulating Electronic Identity Intermediaries: The 'Soft eID' Conundrum' by Tal Zarsky and Norberto Nuno Gomes de Andrade in (2013) 74(6) Ohio State Law Journal comments that
Online intermediation platforms, such as Facebook and Amazon, are traditionally defined by their roles in enabling the publication, sharing and distribution of information, as well as the purchase of products and services. Nonetheless, these platforms have assumed an additional role, which has yet to be fully discussed and acknowledged: the role of identity intermediation. This new function can be defined as the process of creating, authenticating, verifying and guiding stable identities used for interacting in the digital realm. This Article explains and demonstrates this role, along with the disputes and tensions it generates. It further discusses a set of specific legal rules, duties and responsibilities for regulating identity intermediaries.
After a brief introduction (Part I), The Article (in Part II) provides the background and terminology for understanding the role of identity intermediaries in the digital age. It notes the recent rise of “soft eID” intermediaries. These are defined as entities which provide for identity intermediation, yet do so incidentally, remotely and in a lightly regulated environment. Part III moves to further address soft eID intermediation, distinguishing between intermediations which rely upon the use of “Real Names” and “Stable Pseudonyms” — each category employing a different set of technologies and verification methods, and generating unique benefits and concerns.
Part IV explores the benefits and risks associated with soft eIDs. Identity intermediation secures economic benefits, protects personality and identity interests, enhances autonomy and promotes free speech. Yet it also raises security and privacy concerns, as soft eIDs might be hacked, used for impersonation or identity misrepresentation. In addition, identity intermediaries may also abuse their power by terminating accounts or limiting their interoperability and mobility.
Seeking the proper legal regime, Part V briefly examines related regulatory frameworks for identity intermediation, namely the EU Electronic Signature (eSig) Directive and its future developments under the current revision process, and the US National Strategy for Trusted Identities in Cyberspace (NSTIC). On the basis of this analysis, Part VI provides recommendations for legal responses, examining a variety of policy moves specific to soft eID intermediaries, such as requiring mandatory approval, setting up a voluntary accreditation system and assigning tort liability. After generally discarding the first two options, the Article closely examines whether and how tort liability should normatively be assigned to these identity intermediaries. Finally, this Part examines the role law should take in curbing the intermediaries’ excessive ability to impede on the individual’s identity interests.
The same issue of the journal features 'Social Data' by Woodrow Hartzog, arguing that
As online social media grow, it is increasingly important to distinguish between the different threats to privacy that arise from the conversion of our social interactions into data. One well-recognized threat is from the robust concentrations of electronic information aggregated into colossal databases. Yet much of this same information is also consumed socially and dispersed through a user interface to hundreds, if not thousands, of peer users.
In order to distinguish relationally shared information from the threat of the electronic database, this essay identifies the massive amounts of personal information shared via the user interface of social technologies as “social data.” The main thesis of this essay is that, unlike electronic databases, which are the focus of the Fair Information Practice Principles (FIPPs), there are no commonly accepted principles to guide the recent explosion of voluntarily adopted practices, industry codes, and laws that address social data.
This essay aims to remedy that by proposing three social data principles — a sort of FIPPs for the front-end of social media: the Boundary Regulation Principle, the Identity Integrity Principle, and the Network Integrity Principle. These principles can help courts, policymakers, and organizations create more consistent and effective rules regarding the use of social data.

Concentration

The Australian Competition and Consumer Commission has announced that it will not oppose the proposed acquisition of Life Technologies Corporation by Thermo Fisher Scientific Inc. Competition concerns under section 50 of the Competition and Consumer Act 2010 (Cth) were resolved by Thermo Fisher's undertaking to sell its Australian cell culture business and comply with  commitments to the European Commission to sell its global HyClone cell culture and Dharmacon gene silencing businesses.

Thermo Fisher and Life Technologies operate globally in the life sciences sector, supplying products in the molecular biology, protein biology and cell culture markets.

The ACCC indicates that
In Australia, the merger parties’ customers are research institutions and biopharmaceutical companies.
“The ACCC considered that in the absence of the undertaking, the proposed acquisition would substantially lessen competition for the supply of certain cell culture products, which are used to grow cells for academic research and vaccine production,” ACCC Commissioner Dr Jill Walker said.
“Our market inquiries identified concerns about the strength of the merger parties in relation to foetal bovine serum (FBS). Life Technologies and Thermo Fisher are two of the three main suppliers of FBS to customers in Australia.”
The ACCC also considered that without the undertaking, the proposed acquisition would substantially lessen competition in the supply of siRNA, a product which is used in the study of genes.
The ACCC will issue a public competition assessment, providing an explanation for its view on the proposed acquisition and the undertaking, in due course.

Freedom from doorknockers

Privacy has sometimes be conceptualised as a freedom from interference, a freedom that encompasses bodily integrity and from unwanted interruption at home.

It might be protected through
  • a discrete privacy statute, 
  • trade practices law or 
  • communications law such as the Do Not Call Act 2006 (Cth) noted earlier this month.
The significance of trade practices law in enshrining a 'do not knock' regime is illustrated by the decision in Australian Competition and Consumer Commission v AGL Sales Pty Ltd (No 2) [2013] FCA 1360.

The ACCC has indicated that penalties in that case and in a related matter (combined penalties of $1.5 million  for unlawful selling practices by AGL Sales and AGL SA, $200,000 for conduct by marketing company CPM Australia) were a clear warning that businesses needed to comply with laws about making unsolicited approaches to consumers.

In ACC v AGL (No 2) the court stated that in late 2011 a sales representative ignored a "Do not knock, unsolicited door to door selling is not welcome here" sign on the consumer's front door, and persisted in offering the resident an energy supply deal, thereby contravening paragraph 75(1)(a) of the Australian Consumer Law (ACL), ie Schedule 2 to the Competition and Consumer Act 2010 (Cth).

The contravention had been identified in Australian Competition and Consumer Commission v AGL Sales Pty Ltd & Ors [2013] FCA 1030.

Middleton J found "the contravention subverted both the consumer's desire not to be disturbed or interrupted by sales representatives and the very protections provided to the consumer by the legislation".
The refusal to leave enabled that contravening conduct: had the sales representative left on request, no opportunity for that contravening conduct would have arisen.
The failure to leave when requested was serious in nature because of the location and context in which it occurred, being a private residence to which AGL SA and CPM were not invited.
The contravention subverted both the consumer’s desire not to be disturbed or interrupted by sales representatives and the very protections provided to the consumer by the legislation. ...
 A contravention of s 75 will rarely, if ever, directly result in financial loss or damage.
Section 75 of the ACL protects consumers in their homes by imposing a mandatory standard of conduct for persons engaged in door-to-door selling. The standard is intended to limit consumers’ exposure to inconvenience, invasion of privacy and unwanted sales calls.
The consumer did not suffer direct financial loss because she did not enter into an agreement with AGL SA. However, the consumer was subjected to unwanted interactions with a salesperson and suffered the inconvenience and invasion of privacy.

20 December 2013

Fertility and property

In Re H, AE (No 3) [2013] SASC 196 the South Australian Supreme Court has referred to Re YZ and Infertility Treatment Authority (2005) VAR 1 and Edwards; Re the estate of the late Mark Edwards (2011) 81 NSWLR 198 in authorising access under the Assisted Reproductive Treatment Act 1988 (SA) to spermatozoa extracted post-mortem from the applicant's husband.

The judgment follows Re H, AE (2012) 113 SASR 560 and Re H, AE (No 2) [2012] SASC 177. In the latter the applicant had sought a declaration of entitlement to possession of sperm extracted - pursuant to an order of the Court - shortly after her late husband's death. It was apparent that the applicant intended to use the sperm to procure pregnancy by in vitro fertilisation. The court was asked to consider whether the applicant was entitled to possession of the sperm, noting for example Jocelyn Edwards; Re the Estate of the Late Mark Edwards [2011] NSWSC 478, Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207, Pecar v National Australia Trustees Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 27 November 1996).and of course Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

The Court held that under its inherent jurisdiction it retained control of the use of the sperm. In response to the applicant's prima facie case for an order that she have possession of the deceased’s sperm for use in a manner approved by the Court a concern raised by the South Australian Attorney-General needed to be addressed. The A-G did not appear as a contradictor and did not consent to or oppose the relief sought.

The A-G's intervention, under section 9(2)(a) of the Crown Proceedings Act 1992 (SA), involved submissions regarding the assisted fertility scheme in South Australia, governed by the Assisted Reproductive Treatment Act 1988 (SA), which restricts access to in vitro fertilisation. The A-G contended that the legislative restrictions on obtaining in vitro fertilisation are relevant when considering whether to exercise the Court's discretion to grant declaratory relief, arguing that no registered person operating in South Australia would be able to lawfully provide in vitro fertilisation treatment using the deceased’s sperm to the applicant.

Gray J held that
I have reached the conclusion that the applicant and the deceased had decided to start a family and that but for the death of the deceased, their attempts to do so would have continued. I consider that the applicant, as a mother, would provide a loving, caring and stable environment for her child. I am satisfied that she is in a position as a mother to meet the emotional needs of her child. I am satisfied that the applicant is in a position to meet the material needs of raising a child. I am satisfied that there is wider family support for the applicant in the event of her motherhood. In reaching these conclusions, I have had regard to the evidence referred to earlier in these reasons. 
The applicant has adopted a responsible attitude to the within application. She is a determined and courageous woman. 
For the reasons that follow, I consider that the Court, in its inherent jurisdiction, retains control of the use of the sperm. However, I consider that the applicant has made out a prima facie case for an order that she have possession of the deceased’s sperm, but only for use in a manner approved by the Court. 
In reaching my conclusions, I have considered a number of articles and other papers addressing what may be described as the ethical and moral issues arising from this application. These articles and papers have emphasised the interests of the child to be conceived. I have also considered relevant legal authorities, both in Australia and other jurisdictions. There are precedents for the release of sperm in comparable circumstances to those arising in the within proceedings. It is to be noted that the applicant sought an order that she was entitled to the sperm as though it was a species of property over which she could claim ownership. The issue of whether the deceased’s sperm which has been extracted and preserved is subject to property rights requires some consideration.
In the current judgment Gray J granted the applicant use of the spermatozoa under the control and supervision of the Genea Clinic in the Australian Capital Territory, i.e. a jurisdiction with a different assisted fertility regime to that of South Australia. The expectation is that Genea will use "a treatment procedure or procedures … to produce an embryo or embryos to be implanted in the applicant".

The Court held that the -
Conclusion expressed in Re H, AE (No 2) [2012] SASC 177 that the deceased did intend to have a family with the applicant and that that intention was made known to others and was evidenced in writing. It remains a question for those providing treatment in the Australian Capital Territory to reach their own conclusion on this topic.
That is because the ACT relies on the 2007 National Health and Medical Research Council Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, an accreditation framework rather than a statute.

The Guidelines state that -
When either parent dies before the birth of a child, this is generally regarded by society as tragic in that the child will not know that parent. The facilitation of conception in circumstances where the child born will never know one of his or her genetic parents is, by analogy, a serious act of profound significance for the person born. In addition, state or territory legislation may prohibit the use of gametes after a person has died. 
Clinics must not facilitate use of gametes to achieve pregnancy in such circumstances, unless all of the following conditions are met: 
- a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes; or 
- a person in a postcoma unresponsive state (‘vegetative state’) prepared clearly expressed and witnessed directions, before he or she entered the coma, consenting to the use of his or her gametes; or 
- a dying person prepares clearly expressed and witnessed directions consenting to the use, after death, of his or her gametes; and 
- the prospective parent received counselling about the consequences of such use; and
- the use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents. ….
As these situations arise infrequently and involve serious ethical issues, clinics should ensure that those involved seek advice and guidance from a clinical ethics committee on the ethical issues raised above and, if necessary, seek advice regarding the application of relevant laws.
A perspective is provided in 'Post-mortem sperm retrieval in Australia' by Benjamin Kroon, Frederick Kroon, Saul Holt, Brittany Wong and Anusch Yazdani in (2012) 52(5) Australian and New Zealand Journal of Obstetrics and Gynaecology 487

Children’s Rights

The National Children's Commissioner has released the Children’s Rights Report 2013 under section 46MB of the Australian Human Rights Commission Act 1986 (Cth), which requires that the Commissioner submit an annual report relating to 'the enjoyment and exercise of human rights by children in Australia'. The Act authorises the Commissioner to make recommendations as to any action that should be taken to ensure the enjoyment and exercise of human rights by children.

The Commissioner indicates that the report -
examines the key international human rights treaty on children’s rights, the Convention on the Rights of the Child (CRC), and its implementation in Australia. Current statistics are used in the report to show how children are faring in Australia. The Report also refers to the outcomes of my national listening tour, the Big Banter, which concluded on 30 September 2013.
Based on this, the Report outlines five key themes that I have identified for progressing better protection of children’s rights in Australia. The Report includes six recommendations on actions that should be taken to ensure the enjoyment and exercise of human rights by children in Australia. 
The themes are -
1. A right to be heard – children’s voice and participation in decision-making processes; specifically involving children in issues that affect them; and ensuring that existing mechanisms for resolving disputes are accessible and available to children.
2. Freedom from violence, abuse and neglect – ensuring safe environments and respect for the dignity of the child; specifically making sure that the commitments made in national frameworks are achieved and built upon, through adequate resourcing and action; encouraging a proactive approach to issues of child safety that places a premium on prevention, through enabling safe communities and environments for children; and building resilience among our children.
3. The opportunity to thrive – safeguarding the health and wellbeing of all children in Australia, which includes promoting and supporting children through early intervention and prevention; and identifying and focusing on the most marginalised and vulnerable children.
4. Engaged citizenship – promoting engaged civics and citizenship through education and awareness-raising.
5. Action and accountability – taking deliberate and proactive steps to protect the wellbeing and rights of children, specifically by collecting comprehensive national data about the wellbeing and human rights of Australia’s children; progressing a national vision for Australia’s children through intergovernmental partnerships and agreements; developing outcome based reporting and monitoring of government service delivery and policy development; and developing a children’s impact assessment process for law, policy practice. 
The recommendations are -
R1 That the Australian Government respond formally to the Concluding Observations of the United Nations Committee on the Rights of the Child on Australia’s fourth report of progress under the Convention on the Rights of the Child and its Optional Protocols. The response should indicate how it intends to progress addressing the recommendations, and timelines and benchmarks for their implementation.
R2 That the Australian Government accedes to the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure and ratifies the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).
R3 That the Australian Government finalises its review of Australia’s reservations and withdraws its reservation under article 37(c) of the Convention on the Rights of the Child which relates to the obligation to separate children from adults in prison.
R4 That the Australian Institute of Health and Welfare (AIHW) extends its current cohort of Australian children in A picture of Australia’s children from 0 to 14 years to 0 to 17 years, consistent with the Convention on the Rights of the Child definition of the child.
R5 That the Australian Government establishes relevant data holdings and analytics covering all the key domains of children’s rights outlined in the Convention on the Rights of the Child, including comparable data across jurisdictions, which the National Children’s Commissioner can use to monitor the enjoyment and exercise of human rights by children in Australia.
R6 That the Australian Government includes in its regular monitoring and evaluation of national policy reforms and initiatives, a component that reports on how it is giving effect to the articles of the Convention on the Rights of the Child.

Do Not Call consultation

The Department of Communications has released a consultation paper [PDF] regarding the Do Not Call regime under the Do Not Call Register Act 2006 (Cth).

The 25 page 'Optimal period of Registration on the Do Not Call Register' discussion paper indicates that
The Do Not Call Register (the Register) allows registrants to opt out of receiving certain unsolicited telemarketing calls and marketing faxes by listing their telephone or fax numbers on the Register. When the Register was first established in 2007, registrations were valid for three years from registration. Since then, the registration period has been extended on three occasions, and is now set at eight years.
This discussion paper is seeking community views on the optimal period of registration for numbers on the Register. Public comment is sought on four options:
Option 1) Reduce the period of registration to three years
Option 2) Retain the current eight year registration period
Option 3) Extend the registration period to indefinite
Option 4) Remove the need to register
The Department of Communications is seeking comment on which of these four options maximises the value of the Register to Australian consumers and ensures that their privacy is adequately protected, while minimising the compliance cost on businesses engaging in telemarketing and fax marketing activities as far as possible. In addition, for options one, two and three, the Department is also considering the introduction of a cleansing mechanism, to improve the accuracy of the Register. ...
The Do Not Call Register Act 2006 (the Act), requires the Australian Communications and Media Authority (ACMA) to establish and maintain the Register. The Register became operational in May 2007, and since then 9 million numbers have been registered. The key objectives of the Register are to:
  • reduce the inconvenience and intrusiveness of unsolicited telemarketing calls and marketing faxes by enabling consumers to list their fixed line and mobile phone numbers on the Register 
  • provide a consistent and efficient operating environment for businesses engaging in telemarketing and fax marketing activities 
  • establish an effective complaints handling mechanism for consumers to report complaints about unsolicited telemarketing calls and marketing faxes.
The Register allows consumers to register their numbers, to opt-out of receiving certain telemarketing calls and marketing faxes. There are a number of ways that consumers can register, including via the internet (www.donotcall.gov.au), telephone (1300 792 958), fax and post. Registrations can take up to 30 days to become fully effective. Registrants can also remove their telephone or fax numbers from the Register through an online process. The Act prohibits the making of an unsolicited telemarketing call or the sending of an unsolicited marketing fax to a number on the Register, subject to certain exceptions.
Telemarketers and fax marketers can submit their calling lists to the Register operator, which then ‘washes’ the list against the Register to identify which numbers are registered. To access the washing service, telemarketers and fax marketers pay an annual subscription fee. The fees operate on a sliding scale, depending on the maximum number of Australian numbers to be washed in a 12 month period.
Since 1 July 2008, the full direct costs of operating the Register have been recovered from businesses engaging in telemarketing and fax marketing activities through these subscription fees. The ACMA undertakes regular cost-recovery reviews to determine the subscription fees, in line with the Australian Government’s Cost Recovery Guidelines. The fees currently range from subscription type A, that is free for 500 numbers, through to subscription type H, that is $90 000 for 100 000 000 numbers.
The Department notes that The registration period for numbers on the Register was originally set at three years. This meant that numbers registered in 2007, would have needed to be re-registered before 2010 so as not to fall off the Register.
Since the commencement of the Register in 2007, the registration period has been extended three times. The most recent extension occurred on 9 April 2013, and registrations are now valid for eight years from the date the number was first registered. Numbers registered soon after the Register commenced in 2007 will now begin to expire from 31 May 2015.
The limited period of registration was originally intended to address concerns that an indefinite (or very long) period of registration may introduce inaccuracies into the Register.
Account-holders do not generally request the removal of their number from the Register when they give up their number. When a number is given-up, it will eventually be reissued to a new account holder after being in quarantine for a period. As a result it is possible that there are inaccuracies on the Register. ...
There are also a number of other factors which act to prevent inaccuracy or reduce the need for intervention:
- Local Number portability allows consumers to keep their geographic number (i.e. 02 6271 XXXX) when they switch providers. For example, a person changing telephone providers can keep their number when they move to a new provider. In 2011-12, there were 627,16010 geographic numbers ported. There are 5 million landline numbers on the Register. Since the commencement of the Register, a total of 3.7 million geographic numbers have been ported. Access to Local Number Portability may mean that consumers are less likely to need to seek a new number when they swap providers, and this may therefore reduce the amount of numbers entering quarantine.
- Mobile Number Portability allows customers to retain their mobile telephone number when they change providers. For example, a person changing mobile telephone service providers can keep their number when they move to a new provider. In 2011-12, there were 2.6 million mobile numbers ported. There are currently 3.85 million mobile numbers on the Register. Since the commencement of the Register, a total of 8.9 million mobile numbers have been ported. Mobile Number Portability, like Local Number Portability, may mean that customers are less likely to need to seek a new number when they swap providers, and this may therefore reduce the quantity of numbers entering quarantine. However, it is worth noting that pre-paid number have a high turnover (that is, a customer may simply discard their number). Likewise, prepaid mobile services may also be passed on from person to person without anyone contacting the supplier. Hence, pre-paid mobile phone numbers on the Register have an increased likelihood of inaccuracy.
- Location portability allows individuals (and organisations) to retain their fixed line/landline number when they move. This is possible when an individual is moving house within the same general geographic area (for example within Canberra or Gosford). Some providers do not allow location portability, which may limit the ability of consumers to access this service when they move. The ACMA has relaxed these rules for Voice over Internet Protocol (VoIP) services – in certain circumstances, individuals can acquire a VoIP number that does not relate to the geographic area that they live in (for example, in certain circumstances a person living in Canberra can be issued a Melbourne number – e.g. 03 9963 XXXX). - Changing a place of residence does not normally require any change in the existing mobile numbers, so the accuracy of the mobile numbers on the register is not usually affected by moving. As of 15 July 2013, there were 3.85 million mobile phone numbers registered 
One rationale for the DNC regime is privacy as 'the right to be left alone'. The paper notes that
Consumers have consistently reported that telemarketing, and unsolicited marketing in general, can cause them inconvenience and annoyance. A recent 2013 study by the Office of the Australian Information Commissioner (OAIC) has found that:
56% of respondents felt annoyed from contact by unsolicited marketers.
39% of respondents concerned about how their details were obtained by the organisation contacting them.
Community attitudes also appear to be shifting. In 2013, 45% were annoyed by unsolicited marketing versus just 27% from a similar survey done by the OAIC in 2007. In the 2013 survey respondents were less likely to feel that unsolicited marketing was "a bit annoying, but mostly harmless" (11% in 2013 versus 23% in 2007). The 2013 survey also found that only 3% of respondents indicated that unsolicited marketing information either doesn’t bother them and only 2% indicated that they enjoy reading it.
It goes on to quote a researcher's comment that
the Australian Do Not Call Register compares poorly with other jurisdictions. In the US the renewal requirement was dropped in 2007 and registration is now permanent. Registration is also permanent in India, Spain and the UK. A major problem with the renewal requirement is that it adds regulatory burden, complexity and expense to a system that is supposed to be simple and inexpensive… (the renewal) process will be very ineffective and inefficient, as it is unlikely any registered consumers will suddenly wish to receive telemarketing calls. (In any case, a consumer can remove their number from the Register at any time if they have a change of heart about telemarketing)… There is no evidence that any of the Do Not Call Registers in jurisdictions without renewals have become ‘clogged’ with obsolete information.

19 December 2013

INSLM

The latest - and quietly eloquent - report by the Independent National Security Legislation Monitor [PDF] indicates that
Chapter II describes the not completely straightforward international setting in which Australia is obliged to have legislation to counter terrorism financing. 
Chapter III deals with the important provisions of the Charter of the United Nations Act 1945 (Cth) (“UN Charter Act”), being part only of such legislation. The many detailed recommendations made in it are largely directed to enhancing powers (including offence provisions) so as to produce a better fit of these provisions with the other mainstream CT Laws. 
Chapter IV deals with offences under the Criminal Code Act 1995 (Cth) (“Criminal Code”) concerned with financing etc terrorism, and in particular, the system of listing, designation or proscription of terrorist organisations. The system should be streamlined so as to permit the Attorney-General to act more expeditiously than is presently possible in light of practice under the relevant inter-governmental agreement. The controversial approach of listing only part of an organisation as terrorist should stop: an organisation has the character of being terrorist or it does not. Where there are presently partial listings, consideration should be given to replacing them with listings of the whole of those organisations as terrorist organisations. 
Chapter V questions the design of the Criminal Code offences concerning associating with terrorist organisations. Exceptions based on close family or public religious associations should not be available to remove criminal liability. But the relevant provisions should provide an exception for humanitarian activities under the aegis of respected organisations such as the Red Cross. 
Chapter VI doubts the efficacy of our terrorism financing legislation, not so much by reason of defects in design as because there are no persuasive empirical data. We do not really know whether any terrorist activities anywhere have been constrained by Australia’s rarely applied terrorism financing laws. Chapter VII examines the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (“NSI Act”). On balance, it is a worthwhile contribution to meeting the perennial challenge of reconciling the public interest in the proper administration of justice and the public interest in national security. The improvements recommended, while considered valuable by the INSLM, are not fundamental – except that which recommends its extension to all classes of proceedings in which national security considerations with respect to Australia’s counter-terrorist activities may arise.
The Monitor (Brett Walker SC) refers to "existential questions" about the INSLM. He comments that
the questions that the INSLM is required to address about the CT Laws involve value judgements. The facts of the administration and exercise of the powers and authorities under the CT Laws, that would provoke and inform those judgements, change with time and experience. Fourth, considering the effectiveness and appropriateness of the CT Laws is not best carried out by a solitary person. As I have recorded previously, and again in this Report, officers of the Commonwealth and many scholars and other commentators, as well as my professional colleagues, are essential sources of experience, opinion and testing, in carrying out the INSLM’s statutory functions. That exposure and consideration takes time. 
For these reasons, and in this sense, the three INSLM’s Annual Reports to date are cumulative, intended to be understood together. In that context, given the continued level of terrorist threat, it is appropriate to note the following examples of previous recommendations (all in the INSLM’s Second Annual Report) to enhance the CT Laws with respect to their effectiveness in countering terrorism. Recommendation II/4 was for consideration of authorizing control orders against persons convicted of terrorism, after their release from any imprisonment to which they have been sentenced, if they are shown to have been unsatisfactory with respect to their rehabilitation and continued dangerousness. The intention was to make available a form of protection against the threat posed by such proven offenders, upon their release into the community. The proposal was for a much more simply obtained form of control order than is presently the case, including for such proven offenders. It drew on established analogues with respect to recalcitrant sexual offenders. When the recommendation was made, there were about ten terrorist convicts already released, and about thirteen still imprisoned, of whom about three are quite likely to be released in the next five years. 
Indirect support for such an approach may be seen in the following UK experience. The Court of Appeal of England and Wales has considered notification requirements (imposed for 10 years from the date of release from imprisonment) on convicted terrorists. The Court held the notification requirements to be appropriate and not disproportionate, and upheld them as compliant with the European Convention on Human Rights. The Court held that the scheme is not disproportionate when set against the legitimate aim of the prevention of terrorism and considering “the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists”. The Court held that terrorism offences fall into a special category and that “even if it is the case that there may be exceptional cases [where a terrorist offender can be said to pose] “no significant future risk”, their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this”. 
The Court held it was “important to keep in mind the gravity of the disorder or crime which is being sought to be prevented” finding that terrorism offences have unique features which compound concern (acts committed by someone motivated by extreme political or religious fanaticism) and if anything calls for a precautionary approach it is counter-terrorism. The INSLM’s recommendation was made on 20th December 2012. Nothing has come to the attention of the INSLM about any governmental or official response to it.
Recommendation IV/1 was to lower the requirement for the issue of ASIO questioning warrants, so as to eliminate the excessive last resort test and replace it with the satisfaction of the Attorney-General and the issuing authority that the issue was reasonable in all the circumstances. 
Again, the INSLM has heard nothing about a governmental or official response to this suggestion. It may be that no opportunity to obtain intelligence has been lost by the last resort test remaining the law, but that would hardly justify leaving the position as it is, given the unpredictable urgency with which such occasions are apt to arise. 
Recommendation VI/3 was for the exclusion from the definition of “terrorist act” of conduct governed by international humanitarian law concerning armed conflict. In effect, it would ensure the plain impossibility of terrorism being alleged against soldiers, including Australian soldiers. (Such persons being, of course, subject to the relevant laws of war including Australia’s own legislation with respect to war crimes and crimes against humanity.) 
A similar view has been expressed by the INSLM’s counterpart in the UK, Mr David Anderson QC, who is the statutory Independent Reviewer of Terrorism Legislation. In turn, the UK Independent Reviewer’s concerns and suggestions to this effect were expressly noted in the unanimous reasons of the UK Supreme Court in R v Gul [2013] UKSC 64 at [61], [62]. Their Lordships expressly noted the UK Independent Reviewer’s mention of the INSLM’s recommendation. The suggestion conveyed by it was one of those that their Lordships regarded as meriting “serious consideration”. 
Again, there is no governmental or other official response to this recommendation known to the INSLM. 
It should be said that the three recommendations noted above are not unique in the lack of response – there has been no apparent response to any of the twenty-one recommendations made on 20th December 2012 by the INSLM (nor indeed to any of the forty-seven recommendations made by the COAG Review of Counter-Terrorism Legislation delivered on 1st March 2013). 
The functions of the INSLM go no further than review, report and recommendation. The INSLM Act was enacted explicitly in recognition of the grave threat of terrorism and the significance of widespread concerns that the best balance be struck by Australia’s legislation to counter terrorism. When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some scepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws. That would be, in the opinion of the INSLM, a regrettable atmosphere in which future and continued assessment and improvement of Australia’s CT Laws are undertaken.
He goes on to note that
The regrettable history of international non-achievement in relation to the definition of terrorism for the purposes of important international obligations has been touched on in earlier Reports. It produces something of an anomaly when considering the ensemble of Australia’s legislative responses to its international counter-terrorism obligations. In particular, the fact and nature of the differences between the definition of terrorism for the purposes of the Criminal Code and the definition of terrorism found in the Terrorism Financing Convention are difficult to justify. 
On the one hand, the Criminal Code definition, by means of the statutory term “terrorist act” and its detailed elements, broadens the concept by comprehending dangers beyond immediate threats to life and limb, and narrows the concept by requiring motive as well as purpose. On the other hand, the Terrorism Financing Convention, as discussed in Chapter II, includes one of the rare international agreements to define terrorism, focussing on threats to life and limb but content with intimidatory political purpose without requiring ideological motive. 
However, the listing system under sec 15 of the UN Charter Act does not rely explicitly on the Terrorism Financing Convention, and so the lack of a definition of terrorism in the UN Charter Act itself is unlikely to be easily supplied by judicial borrowing from the Terrorism Financing Convention. Rather, the approach, as noted above, looks to 1373 and the like. Unfortunately, 1373 notoriously lacks any definition of terrorism. 
A major reason for the Criminal Code to have defined terrorism was the lack of a definition in 1373. In principle, even if there had been a definition of terrorism in 1373, as a matter of international practice and explicit expectation in 1373 itself, Australia would in any event stipulate a definition for the purposes, and in the style, of Australia’s municipal criminal laws. As it was done, it has the defect of including motive, leading to the INSLM’s Recommendation VI/1 in the Second Annual Report. 
Does the definition of terrorism in and for the purposes of the Criminal Code also provide the definition for the UN Charter Act? Are they cognate statutes so as to share the meaning and central concepts? (Both the Criminal Code definition and Part 4 of the UN Charter Act, lacking its own definition, were enacted in 2002 by the Suppression of the Financing of Terrorism Act 2002 (Cth)). One technical difficulty in the way of that solution is the apparently designed absence of the Criminal Code definition from the UN Charter Act provisions. One strong indication in favour of that solution is the common route in 1373. 
These fundamental questions should not be left in this much doubt. As neither 1373 or the UN Charter Act define “terrorist act” it is unclear what definition of terrorism is to be applied in determining which individuals or entities must be proscribed, and which assets may be proscribed, under sec 15 of the UN Charter Act. While Art 2(b) of the Terrorism Financing Convention contains a definition of “terrorist act”, the Australian legislature made the decision to implement the Convention by applying the definition of “terrorist act” under sec 100.1 to the terrorism financing offences in the Criminal Code. 
The definition of “terrorist act” forms the basis of the definition of “terrorist organisation” under the Criminal Code - an organisation “directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act” or where the organisation is proscribed by regulation, an organisation meeting that definition or who “advocates the doing of a terrorist act”.There is no policy reason for different definitions of “terrorist act” to apply to the proscription régimes under the UN Charter Act and the Criminal Code. The merits of carving out conduct covered by the law of war from the definition of terrorism were canvassed in the INSLM’s Second Annual Report. It was recommended that there be an exclusion of such conduct. It is to be noted that, as well as the Canadian precedent discussed in the INSLM’s Second Annual Report in this regard, the terms of the Terrorism Financing Convention (discussed in Chapter II) efficiently accomplishes the same carve out. 
Another defect in the Criminal Code definition of terrorism is its failure explicitly to include hostage taking, notwithstanding the strong international and operational reasons for doing so, noted in the INSLM’s Second Annual Report. 
The virtue of consistency in the definition of terrorism for the purposes of all of Australia’s legislative responses to the evil of financing terrorism is self evident. It is not, however, so great as to mandate resort to a defective definition, consistently. But the unsatisfactory and unjustified difference between the position under the UN Charter Act and the position under the Criminal Code should not continue. It bespeaks a badly crafted legislative exercise. It would be better if the central definition was improved, and then made uniform in all contexts to which it should apply. 
It bears emphasis by repetition that improvements to the definition of terrorism in the Criminal Code recommended in the INSLM’s Second Annual Report are straight forward. They can be summarized as follows. The removal of motivation as opposed to purpose would ease the burden of prosecutors and reduce if not eliminate invidious evidence and argument. The inclusion of hostage taking would reflect the weight of international opinion and practice, and meet the vicious conduct of current terrorists. The carved out for armed conflict covered by International Humanitarian Law would usefully advance the coherent and principled placement of counter-terrorist legislation in the context of international control and disapproval of certain forms of violence. 
Nor has there been any official presentation of a view hostage taking should not be regarded as potentially terrorist. Meanwhile hostages continue to be taken by terrorists internationally, such as the Libyan Prime Minister in October 2013. 
In short, last year’s recommendations were designed to sharpen the legislative response by Australia to terrorism. They were the opposite of slackening the national resistance to terrorism. The entire lack of any response to them officially, in the context of the publication of them being officially delayed until the very last moment, raises existential questions about the rôle of the INSLM. 
Be that as it may, the position produced by official inaction involves a dual but conflicted recommendation for consistency, of a better definition of terrorism than presently exists.

18 December 2013

Character, admission and the legal profession

'Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers' by Francesca Bartlett and Linda Haller in (2013) 41(2) Federal Law Review 227 comments that
Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's 'suitability' for professional practise; also referred to as the 'character test' of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission. 
This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that. ...
Do these discrepancies in state disclosure rates, and process practices, really matter? We would argue, at least, that the consequences of these differences may be significant. For instance, it is possible that in Victoria, and Queensland, authorities consider the admission process an important educative opportunity in which new lawyers reflect on professional and personal ethics, particularly when they conflict with a personal desire to hide embarrassing information. Even the process of admission is considered part of the ethical 'education' of applicants. Applicants are expected to reveal very personal and minor matters and are perhaps judged more harshly should they not do so.  In contrast, NSW admission authorities appear to place greater responsibility on applicants themselves to self-filter and only disclose serious matters. The lack of any need to publish notice of an intention to seek admission in NSW means there is also no threat from third parties of further disclosures in that state. The experience of admission in NSW may consequently be less adversarial, invasive and paternalistic. It may provide a solution to the critiques offered by Rhode and other commentators. On the other hand, if there is some merit in the 'character test', it is arguable on the basis of 2009 national data that NSW potentially has more 'unsuitable' applicants slip through their admission process than in Victoria. At the lowest, it has arguably signalled to the public a negligible role for the character test in that state.  We query whether local legislatures intended to produce substantively different results across Australia. The jurisdictions considered introduced a form of national legislation in the Model Laws. The relevant Acts allow for the common law to concomitantly govern in this area, which is ostensibly similar across Australia. We argue that one explanation for the discrepancies lies in the symbiotic relationship of the courts and those agencies who administer law. In Victoria, the expansive approach in the jurisprudence has engendered a rigorous process adopted by the admitting authority which has been communicated to those applying for admission. Until recently, there was no guidance from the authority and applicants had to rely on case law. This is generated when an applicant appeals a refusal of the Legal Profession Admission Board to issue them with the compliance certificate they require for admission or the NSW Bar Association or Law Society of New South Wales appeals a decision to grant a certificate.There appear to be fewer such appeals relative to the number of applications in NSW, which might actually flow from a less demanding admission process (requiring fewer disclosures) than in other jurisdictions.The NSW picture appears to be that only very significant matters will be relevant to disclose. 
State courts almost exclusively refer to only local case law when deciding admission cases, making the influence of precedent from other parts of Australia opaque. This, together with the confluence of factors described above, has produced large disparities across the jurisdictions considered. At the very least, we argue that there is a need for a more transparent and consistent approach to admission in Australia. Some would say these differences are nothing to be concerned about and simply reflect the healthiest aspects of a federated state-based admission system. We disagree for a number of specific reasons. 
First, we believe there is no justification for the lack of transparency that occurs in most states and territories as to applications processed each year. We applaud the detailed reporting that emanates from Western Australia and efforts of LACC. This not only provides transparency but also guides future applicants as to the sorts of matters that may require further explanation to admission authorities, and the type of procedural steps (decision on the papers, informal chat with the Convenor, or formal adversarial hearing) that they are likely to expect. We do not call for confidential information to be published. Rather we ask for reporting of key indicators such as how many applications are refused each year; generic descriptions of the reasons for denial; rates of disclosure by applicants, the general nature of such disclosures and how they are classified. 
Second, we are concerned that, at the same time that the process lacks transparency, paradoxically, it lacks privacy. For instance, there are examples of the process being far from private. In a recent Victorian professional disciplinary case that identified the individual involved, the Supreme Court mentions oral hearings conducted by the admitting authority and its deliberations as to whether to admit the candidate over an incident of student misconduct. Despite the Board's concerns about character, the Court ultimately admitted the candidate. Thus it seems even matters which do not bar admission can haunt a person professionally and lead to a slippage of confidential information. Relatedly, we have particular concerns about what the perception of a lack of privacy might mean for disclosures relating to mental illness. We are also concerned about the apparently adversarial and invasive nature of such inquiries. We suggest that concerns about maintaining privacy are best dealt with by taking 'capacity' concerns out of the 'character' test. LACC makes a similar recommendation. As Bauer recommends, what is needed is close scrutiny of process. 
Third, we are concerned about the lack of coherence and clarity concerning the implications for applicants revealing a history of mental illness. It appears that there are very different standards and practices across the three jurisdictions considered. Victorian, NSW and Queensland guidelines now state that:
if an applicant makes a full disclosure of a condition relevant to capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.
This form of clarification for future applicants is welcomed. However, applicants may read cases like XY v Board of Examiners as a continuing indication that mental illness disclosures will result in differential treatment. In this regime, there may yet be claims of unlawful discrimination as in the United States if decisions are made on the basis of status. While NSW and Queensland apply a different test, we remain concerned about the lack of certainty as to its scope, particularly in the light of Doolan v Legal Practitioners' Admission Board which provides no guiding principle. 
Finally, we are concerned that the admission process discriminates so dramatically between law graduates depending upon the state in which they seek admission. If this becomes well known, it is foreseeable that there may be forum shopping. On the eve of uniform legislation in NSW and Victoria, we should take this opportunity to discuss this as a national issue. One approach is to consolidate the admission standards and process. Under the LPNL, the National Legal Services Board is empowered to decide who will be admitted by issuing 'compliance certificates' to the state court. The state courts would still retain a power to refuse to admit a person, but there would be a strong, public disincentive to act in a way that is unjustifiable as there is a requirement to report reasons. As this process is centralised, more anonymity for applicants can be seen to be, and actually, accorded. We concede that this structural change to admission may not be part of any enacted version of the LPNL next year. However, it provides a useful example of how a 'uniform' legislative approach could produce positive results. As it stands for the foreseeable future, applicants for admission across Australia will continue to be subject to variable approaches to their 'character', if and when they ask to join the legal profession.

Investigation and Privilege

'Data Protection in the Context of Competition Law Investigations: An Overview of the Challenges' (Tilburg Law School Research Paper No. 020/2013) by Monika Kuschewsky and Damien Geradin comments -
The interface between data protection law and competition rules has become a growing area of interest for companies and lawyers. First, in the course of unannounced inspections (the so-called "dawnraids"), European Commission and national competition authority officials typically review company records and search employees’ e-mails and electronic files and records (including those which people thought had been deleted). They will make hard and/or soft copies of relevant documents and in certain cases may even seize entire hard discs. This raises the question of whether such intrusions are compatible with data protection rules and thus which restrictions such rules impose on the ability of competition officials to collect and process data seized during inspections. Another intersection between competition law and data protection law arises where companies need to collect and further process data from their employees to respond to a competition authority’s request for information or a statement of objections in the course of a pending competition law investigation. Companies may also wish to access and review e-mails and other employee records so as to uncover potential competition law infringements (e.g., in the context of a compliance programme) or to prepare a leniency application.
Against this background, this paper seeks to identify the limits that may be placed by data protection law on competition authorities, on the one hand, and companies, on the other hand, to collect and further process personal data in the context of competition law investigations.
This paper is divided into four sections. Section II briefly sets out the legal framework for data collection and processing in the EU. Section III explains the key data protection principles and Section IV identifies the key players in the context of EU data protection law. Section V elaborates on the key data protection principles and how they apply to competition authorities on the one hand and companies on the other hand. Section VI discusses the legal consequences of non-compliance with data protection rules. Section VII concludes.
'The Applicability of Privileges to Employees’ Personal E-Mails: The Errors Caused by the Confusion between Privilege Confidentiality and Other Notions of Privacy' (UC Davis Legal Studies Research Paper No. 362) by Edward J. Imwinkelried states -
Americans will generate approximately seven trillion e-mails this year. Each year employees send hundreds of billions of e-mails from their work accounts. Some of these e-mails relate to personal matters, including communications with spouses and confidants such as attorneys and therapists. Yet, many employers have formal policies both prohibiting personal use of the work account and reserving the employer's right to monitor e-mails sent through the work account.
The question has arisen whether the traditional privileges such as attorney-client and spousal attach to e-mails sent through the employee's work account. Does the employer policy negate the confidentiality ordinarily required for the privilege to attach?
That general issue has triggered a number of splits of authority. Two are especially noteworthy. One question is whether the same confidentiality standard applies whether the employee is asserting the privilege against the employer or a third party. Some courts have indicated that the employee may invoke the privilege against a third party even when the employee could not assert the privilege against the employer. A second question is whether the existence of an employer policy automatically precludes privileges from attaching. Some courts have adopted a flexible, multi-factor test including such considerations as whether the employer actually monitors or has made inconsistent representations to the employee. However, other courts -- the majority -- have ruled that the existence of the employer policy is dispositive, precluding any privilege claim by the employee.
This article criticizes the view that the confidentiality standard varies as well as the view that the existence of an employer policy is dispositive. Both views distort the basic concept of confidentiality. The first view is flawed because the concept of confidentiality requires the holder's intent to exclude all parties outside the circle of confidence. The employer is not within the circle including the employee and his or her confidant. Thus, if the employee impliedly consents to the employer's monitoring, there is no privilege to assert -- whether the opposing litigant is the employer or a third party. The second view is equally unsound. That view confuses the normative meaning of reasonable expectation in Fourth Amendment jurisprudence with the factual meaning of reasonable expectation in privilege law.
Confidentiality is the central concept in modern privilege law. Three quarters of the published opinions addressing privilege issues turn on the confidentiality concept. The courts must resolve the modern disputes over the applicability of privileges to employees' e-mails on work accounts without distorting that basic concept.

Juries

'Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions' by Anna Roberts in (2013) 98 Minnesota Law Review 592 comments that
Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This Article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror exhibits individual bias, he or she can be excused for cause. If the state presumes embitterment in the absence of any showing of individual bias, it can exercise peremptory challenges. These are finite in number, and thus exact a litigation cost that may incentivize reform. A rich body of recent scholarship proposes adjustments to prosecutorial incentives in other areas of the criminal justice system; this Article adds a focus on jury exclusion to that literature, and to other recent policy critiques.

Smuggling

'Prosecution and Punishment of People Smugglers in Australia 2008-2011' by Andreas Schloenhardt in (2012) 40(1) Federal Law Review 111 offers
an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of 'typical' people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change
Schloenhardt comments that
If prosecutions are to have any impact on people smuggling ventures to Australia, the focus must be shifted from prosecuting those at the end of the chain to those higher up in the organisations who arrange for, and profit from, those ventures. Between 2008 and June 2011, only two organisers — Messrs Ahmadi and Olong, who were extradited from Indonesia and Thailand respectively — were successfully prosecuted, and one of those, Mr Ahmadi, was at most a 'middleman', not a primary organiser. The gaoling of these offenders, whose conduct in organising multiple boats brought hundreds of passengers to Australia, prevented them from engaging in further people smuggling operations, which had been their intention. Although the typical offenders' conduct in undertaking the final voyage to Australia remains important as the final step in the people smuggling process, they are essentially the 'sacrificial lambs of the people smuggling industry', allowing the organisers to profit from their trade while staying out of the reach of Australian authorities. 
Leaving questions of the effectiveness of incarceration and recidivism aside, the people smuggling activity which Australia's laws are designed to 'target and deter' could be more effectively disrupted by tracking down the organisers, incapacitating their operations (at least temporarily), and preventing them from continuing the practice of recruiting poor fishermen to take the passengers to Australia. The time, money and effort involved in prosecuting and gaoling hundreds of Indonesian fishermen would be better invested in investigating, extraditing and prosecuting the organisers who put them to the task in the first place. 
Second, the prosecutions have not been successful in deterring individuals from engaging in offending of this type. Many impoverished fishermen continue to be targeted and continue to be persuaded by the offer of large sums of money to take passengers to Australia. Australian policymakers should take note of the reservations in relation to the effectiveness of general deterrence in the context of people smuggling offences expressed by some sentencing judges. It is extremely doubtful that the fishermen who are targeted by organisers, who are often illiterate and living in isolated villages, will be aware of, let alone be deterred by, the tough penalties imposed for people smuggling offences. This concern has been expressed in many sentencing remarks and is shared by many experts in the field.  
Australia must therefore rely on other means to ensure that Indonesians are aware of Australia's tough penalties for people smuggling offences, particularly those who are at risk of being targeted by organisers. It is worth noting that the Commonwealth government launched an AUD4 million education campaign in Indonesia in 2010 intended to reinforce the message that there are tough penalties for people smuggling offences, but this has been met with a mixture of enthusiasm in some of the villages that have been targeted and cynicism in others. Those formulating public awareness campaigns must bear in mind Indonesia's diversity of language and culture, and the poverty afflicting many of the small islands comprising its archipelago. 
Third, the mandatory minimum penalties provision has forced sentencing judges to impose sentences which are greater than the circumstances would otherwise justify. Because, according to the usual principles of sentencing, the appropriate sentence in these cases was frequently a lesser sentence than the mandatory minimum, the mandatory minimum sentence has been applied to all offenders who fall within that class. As a result, principles of parity between people smuggling offenders have been compromised. The recent decision in Bahar v The Queen has allayed these concerns somewhat, but this has come at the cost of potentially even more unjust sentences for individual offenders (which is what the earlier approach sought to avoid). 
Given that the two organisers who were prosecuted during the period studied, Messrs Ahmadi and Olong, were sentenced according to the usual sentencing principles and were given head sentences equal to or greater than the mandatory minimum now required, there is little support for the view that courts would impose lighter sentences on organisers, whose culpability for the offending is substantially greater than the typical offender, in the absence of a statutory minimum. 
The fear, it seems, is that courts would return to the pre-2001 practice of applying the usual sentencing principles in relation to the offenders who make up the majority of people smuggling prosecutions and impose sentences which, in the eyes of the Commonwealth government and the Opposition, appear too lenient. It is, however, implausible that Parliament genuinely considers these typical offenders deserving of sentences 'completely out of kilter with sentences handed down ... for offences of the same or higher maximum sentences involving far greater moral culpability including violence causing serious harm to victims',  as the mandatory minimum provision requires courts to impose. Rather, the retention and extension of the mandatory minimum sentence to a broader range of circumstances for people smuggling offences by a government which is — rightly or wrongly — popularly blamed for the surge in people smuggling ventures since September 2008, seems designed for the same purpose which motivated the introduction of mandatory minimum sentences by the former government in 2001: to appear 'tough' on people smugglers. 
That is wrong. Judges' sentencing discretions should not be curtailed for political purposes. In the context of people smuggling offences, it has required courts to impose heavier sentences than would be proper according to the circumstances. The mandatory minimum provision should be removed so that offenders can be sentenced appropriately and according to basic principles of fairness and justice.