15 March 2014


The European Fine Art Foundation annual art market report [PDF] by Clare McAndrew claims that the fine art market was up by 8% in 2013, an overall increase of more than 150% in the past decade.

Highlights are -
  • the international art market reached €47.4bn in total sales of art and antiques in 2013, up 8% year-on-year over the decade. 
  • the volume of transactions in the global art market also increased in 2013, but by less than the growth in value, indicating that much of the increase was due to higher priced works, rather than simply more works sold.
  • sales in the US in 2013 increased by 25% in value year-on-year, confirming its position as the key centre worldwide for sales of the highest priced art. 
  • the Chinese market experienced more cautious buying in 2013, with 2% growth. 
  • sales in the EU fell by 2% in 2013. 
  •  the US accounted for 38% of the market by value in 2013, with China at 24% and the UK  at 20%. 
  • online sales in 2013 were estimated to have been in excess of €2.5bn, or around 5% of global art and antique sales. It is estimated that the online art market, including online sales by auction houses, dealers and online-only companies, could grow at a rate of at least 25% per annum, meaning that they could exceed €10bn by 2020. 
  • Post War and Contemporary art was the largest sector of the market in 2013 and included the highest priced works sold during the year. It accounted for 46% of the fine art auction market by value and 44% by volume. 
  • the Post War and Contemporary sector grew 11% in value in 2013 (€4.9bn in auction sales alone). The number of lots sold also rose to its highest level, with 6% growth year-on-year.
  •  in 2013, dealers reported making 33% of their total sales through art fairs, while sales through galleries increased 6% to 50%. 
  • there were 32 'million millionaires' worldwide in 2013 and 42% of those were based in the US. At least 600,000 of this global group are mid-to-high level art collectors (less than 2% of the world’s millionaire population). 
  • World imports of art and antiques reached a total of €17.6bn in 2012A, a 19% increase year-on-year and the highest total yet recorded. 
  • the US and UK accounted for a combined majority of 69% of world imports as they continued to attract both international and domestic demand for art and antiques. Switzerland also maintained a high share at 8%.
  • World exports increased 25% year-on-year to a new record high of €18bn in 2012, their highest ever recorded level. 
  • the UK and US together accounted for the majority of the value of exports of art, with a combined share of 65%, underlining their importance as entrepĂ´t markets for the art trade. 
  • the UK was the largest importer and exporter of art globally and a net importer of art, with imports of €6.1bn exceeding exports of €5.8bn, both just marginally ahead of the US. 
  • in 2013 sales in the art market in the US by dealers and auction houses reached a total of €18bn, an advance of 25% year-on-year, having doubled in value in the five years since 2009. 
  • the US is the leading market place for sales of the highest priced art and antiques in the world. In 2013, it had a 52% share of the value of all lots sold for over €1m at auction, also accounting for 78% of the volume and 60% of the value of all transactions priced over €10m. 
  • Post War and Contemporary art represented by far the largest sector of the art market the US in 2013, accounting for 59% of the value of fine art auction sales, with several examples of US and international artists selling for prices in excess of $50m during the year.
  • China remains the most important of all of the newer art markets, both in terms of the size of its domestic sales and the importance of its buyers globally, and was the second largest market by value worldwide in 2013, with sales of €11.5bn. 
  • in 2013 public auction sales in China reached €7.5bn, with 29% by value taking place in Hong Kong and 71% in Mainland China. 
  • the volume of auction sales in China in 2013 increased by 8% year-on-year, but buy-ins remained persistently high, at 53%, the highest average rate in the last ten years. 
  • most sales at auction in China in 2013 were within the fine art sector, (accounting for 66% of total sales). The largest sector was Chinese painting and calligraphy, with 56% of the market by value. 
  • late and non-payment by winning bidders at auction remains a persistent problem in the art market in China. 
  • in 2013, based on conservative estimates, there were 308,525 businesses selling art and antiques worldwide, consisting of dealers, galleries, antique shops and auction houses. 
  • art market businesses in 2013 directly supported 2.5 million jobs, including over 400,000 in the EU, 587,000 in the US and 300,930 in China. 
  • in 2013, it is conservatively estimated that the global art trade spent €12.1bn on a range of external support services directly linked to their businesses.
  • the highest single item of expenditure in 2013 by the art trade was on advertising and marketing at €3.2bn (26% of total spending), of which 79% was spending by auction houses. Spending on art fairs, although only incurred by dealers, was the second largest at €1.9bn.

EU Data Protection Regulation

'Data Protection Reform and the Internet: The Draft Data Protection Regulation' by Colette Cuijpers, Nadezhda Purtova and Eleni Kosta in Savin and Trzaskowski (eds) Research Handbook on EU Internet Law (Edward Elgar, 2014) claims to critically examine
the proposal for a new General Data Protection Regulation -  both the original Commission Proposal and the amendments adopted by the Parliament. It focuses on the proposed changes to some key traditional data protection concepts: the territorial scope, consent, purpose limitation principle, and on some novelties introduced by the draft Regulation: the principle of accountability, data portability and the principles of data protection by design and by default.
The efforts to reform EU data protection have shown that the very concept of data protection as a right and as a regulatory regime is in crisis. The Commission Proposal seems to accept the bankruptcy of the idea to build data protection law around individual control over what is going on with his/her personal data, while tightening the tools for monitoring and ensuring compliance.
The Parliament text turned the idea of the data protection reform around by introducing -- albeit in not too explicit way -- the individual autonomy back into the data protection discussion. It remains to be seen what the consequences of inclusion of the references to the individual autonomous choices would have for interpretation of the Regulation, if those references will make it to the final text. Even more importantly, the Parliament text seems to have made an attempt to divorce itself from the traditional ‘consent versus fair use’ dichotomy that has been used to describe dominant and conflicting approaches to data protection. The Parliament text seems to craft an alternative way for data protection by introducing a risk-based approach to data protection and by differentiating between ‘regular’ personal data and pseudonymous data that receive different degrees of protection.

Poppyseeds and postal privacy

The brief  'Surveillance, privacy and history' by David Vincent comments
In the surveillance of private communication almost everything is history. Edward Snowden’s revelations about the extent of state interception exposed the obsolescence of current legal safeguards. In Britain the 1994 Intelligence Services Act, which gave legal underpinning to the Government Communications Headquarters (GCHQ) for the first time, and the 2000 Regulation of Investigatory Powers Act (RIPA), have been overtaken by the rise of search engines and the social media and accompanying developments in digital systems and software. The late twentieth century is a far away country and the world before the computer beyond sight or meaning.
It may be argued however that the characteristics of the current controversy were established at the beginning of the modern state and mass communication in the second quarter of the nineteenth century. The 1830s saw the Great Reform Act and the first wave of railway building. In 1840 the government slashed the cost of postage to a penny irrespective of distance, and introduced pre-payment to speed the process of delivery. The intention was to democratise correspondence, stabilising a society disrupted by urbanisation, promoting the exchange of the information necessary for a fluid industrialising economy, and creating demand for universal literacy. Four years later what Torrens McCullagh Torrens, the biographer of the Home Secretary, Sir James Graham, called a ‘paroxysm of national anger' exploded when the government was caught opening letters in the interests of national security. It was the political scandal of 1844, permanently scarring the career of the Minister and recalled at intervals down the decades until new regimes of surveillance were introduced around the time of the First World War, such as the 1911 Official Secrets Act.
The 1844 postal espionage crisis contained in embryo all the main features of the international controversy that was ignited in June 2013 by the exposure of the surveillance practices of America’s National Security Agency (NSA) acting in conjunction with other national agencies, including GCHQ. Five aspects of the event, in particular, can help clarify the dynamics of the present situation and the room for manoeuvre of governments and their critics. These are the interaction between privacy and secrecy, the management of secrecy, the boundaries of the state, the nature of privacy panics and the behaviour of consumers.
The initial controversy was purely political. The Italian republican Giuseppe Mazzini, who had been chased across Europe to Britain by the Austrian Government, suspected that his correspondence with radical sympathisers in London was being opened by the Post Office. He placed poppy seeds and grains of sand in the envelopes, and when they arrived empty, he caused the MP Thomas Duncombe to raise a complaint in Parliament.
Vincent notes -
The Penny Post was intended to terminate the flourishing networks of informal letter-carrying which had grown up to circumvent the high cost of the Royal Mail. Its success meant that all the delicate sentiments communicated between friends, lovers, parted husbands and wives, and parents and children away from home, were now passing through the hands of official employees under the supervision of the government of the day. The Lord Chief Justice challenged the Home Secretary:
He (Lord) Denman should like to know the feelings of any Secretary of State when he first found himself in the execution of his duty, opening a private letter, becoming the depository of the secrets of a private family, becoming acquainted with circumstances of which he would wish to be ignorant, meeting an individual in society, and knowing that he was in possession of secrets dearer to him than his life.
But the Home Secretary, an upright Tory baronet, could not see the point. His responsibility was keeping the nation safe from internal threats, which in the era of Chartism, the first mass working-class movement, seemed real and imminent. He had no conception of the heightened sensitivies surrounding privacy.
The interaction between privacy and surveillance remains the difficulty for the current government spokesmen. The behaviour of overseas security agencies is at one level a matter for the Foreign Secretary but at another entirely beyond his sphere of competence. Placatory statements to Parliament about the behaviour of GCHQ or the NSA do not begin to embrace the concerns raised by Edward Snowden’s revelations. The event gains its scale because of the collision between state security and the structures and expectations of virtual privacy that have gained new forms and intensities as a consequence of the digital revolution.
Sir James Graham’s second difficulty was his defence of secrecy about secrecy. A year before the postal espionage crisis, Jeremy Bentham’s essay ‘Of Publicity’ was posthumously published. This became a founding text of open government. 'Publicity', he wrote, 'is the fittest law for securing the public confidence, and causing it constantly to advance towards the end of its institution.’ Conversely, 'secresy [sic] is an instrument of conspiracy; it ought not, therefore, to be the system of a regular government.' The destruction of the ‘mystery’ surrounding the state became a shared endeavour of reformers on both sides of the Atlantic. But the post-Reform Act Parliament, forged out of a constitutional crisis between 1830 and 1832, and then threatened by Chartism from 1838, was by no means hostile to the need for some degree of covert action to counter the challenges to the new order. No MP in the often bitter debates that followed Mazzini’s protest demanded the end of all forms of surveillance. Rather they wanted the rules to be made visible and their application accountable. Their preferred remedy was legislation which would compel the Post Office to inform recipients that their mail had been opened.

Saudi Names

A brief item in Gulf News claims that the civil affairs department of the Saudi Arabia interior ministry has banned 50 given names including "foreign" names, names affiliated to royalty, names that contradict the culture of the KSA and those the ministry considers to be blasphemous.

The report indicates that the blacklist includes some names that do not come within three categories, ie those that offend perceived religious sensibilities, those that are affiliated to royalty and those that are of non-Arabic or non-Islamic origin. Some of the names are an unexceptional usage, such as Malak (angel), Amir (prince), Abdul Naser and Jibreel (Gabriel)
Binyamin is believed in Islam to be the son of Prophet Jacob (Yaqoub) (PBUH) and the full brother of Prophet Joseph (PBUH), but it also happens to be the name of the Israeli prime minister. Abdul Naser, similarly, is the name of the famous Arab nationalist ruler of Egypt, who was at odds with Saudi Arabia. Names such as Abdul Nabi and Abdul Hussain, common among Shiites and some Sunni Arabs, are controversial because of the multiple ways in which they can be interpreted. Abdul in Arabic means “worshipper of” or “slave of”, while Nabi means “prophet” and Rasool means “messenger”.
The restrictions include names read as titles, eg Sumuw (highness), Malek (king) and Malika (Queen).

No Talula Does The Hula or Mr King of Ink, fortunately.

Controversies about titles such as Grand Duke of Lithuania or Cardinal & Duke of Avram are addressed outside the Birth name registration regime.

13 March 2014


Insights into the Australian Competition & Consumer Commission conceptualisation of its function are provided in today's speech by ACCC chair Sims, which reiterated the enforcement priorities statement noted recently and featured the following comments
Each year the ACCC receives roughly 160,000 complaints and inquiries. From this pool we have to make a judgment on which matters merit an investigation.
This process narrows our scope to about 500 initial investigations, around 140 of which are then conducted at an ‘in-depth’ level.
From this activity we take around 35 cases to court each year, accept around 30 court enforceable undertakings and issue infringement notices in around 30 matters.
Like any other agency, we need to make important choices about where to allocate our resources.
The ACCC conducts an annual strategic review of consumer and competition issues to identify areas we should focus on.
As part of this process, consumer groups, ombudsmen and other fair trading agencies provide an excellent sounding board in helping us shape our priorities.
At the start of each year we publish a revised Compliance and Enforcement Policy which sets out our areas of focus and explains the factors we take into account when deciding whether or not to pursue particular matters.
This year the review confirmed many previously identified priorities, some of which I have already covered, but also revealed some new areas we intend to pursue.
Deterring cartels, misuse of market power and anti-competitive agreements are enduring priorities for the ACCC.
Consumers stand to benefit from our work in this area. When there is anti-competitive conduct consumers often bear the cost by paying higher prices.
For example, late last year we instituted proceedings against a number of parties relating to an alleged cartel in the laundry detergent industry. We argue that an industry-wide shift to ultra-concentrated laundry detergent products resulted in denying Australian consumers the benefits of lower prices for these products.
It is alleged by the ACCC that in a meeting with a retailer, one of the manufacturers involved estimated that, without the conduct, the value of the laundry detergent market would be $146 million lower over 2009-13. In our view this is one measure of the potential detriment to consumers flowing from the conduct alleged by the ACCC.
In a separate case, last month, the ACCC took court action against Pfizer Australia Pty Ltd. We are alleging misuse of market power and exclusive dealing in relation to its supply of atorvastatin to pharmacies.
Atorvastatin is a tablet product used to lower cholesterol. Prior to the expiry of patent protection, Pfizer’s brand, Lipitor was one of the highest selling prescription medicines.
The ACCC alleges that Pfizer’s purpose was deterring or preventing competitors in the market for atorvastatin from engaging in competitive conduct, as well as to substantially lessening competition.
Product safety
Product safety is another perennial priority for the ACCC. This year our campaign activities will focus on quad bikes and button batteries.
We have also observed a trend of greater direct sourcing of less expensive products from overseas by retailers of “fast-moving consumer goods” which correlates with an increase in consumer injuries and a sharp increase in the number of recalls of those goods.
We are concerned by indications that some major retailers appear not to have satisfactory processes in place to properly meet their responsibility to ensure the safety of the goods they sell. Quality assurance processes may be slipping resulting in consumers being injured.
Let me be very clear: if major retailers are discovered to have taken short-cuts in applying basic quality assurance and control measures, at the expense of consumer safety, we will take action in any way we can.
Emerging consumer issues in the online marketplace
The priority area which best fits the theme of the congress is our interest in comparator websites and drip pricing. …
Drip pricing involves the incremental disclosure of fees and charges over an online booking process. It causes both competition and consumer detriment.
Consumers see a ‘headline’ price advertised at the beginning of the booking process but when they progress to the payment phase, additional fees and charges have been added.
Consumers purchasing airfares or event tickets are all too familiar with this practice.
Drip pricing involves a lack of transparency which may mislead consumers, and it can also make it difficult for businesses to compete on a level playing field.
There will be enforcement action in this area shortly.
Consumer protection in the telecommunications and energy sectors
Our scrutiny of the telecommunications industry’s advertising and sales practices continues.
In relation to this, as I have already mentioned, we were pleased with the High Court’s decision last year to reinstate a $2 million penalty against TPG. The ruling reinforced the importance of accurately stating the full cost to consumers in headline advertising.
In the energy sector our focus in 2013 was on addressing unlawful door-to-door sales conduct by energy retailers. AGL and APG were ordered to pay penalties more than $1 million, and our proceedings against Energy Australia and Origin Energy are still before the Federal Court.
Our next area of focus in the energy sector is misleading discount claims. The ACCC is increasingly concerned about possible misleading conduct by energy retailers in their promotion of energy plans. These concerns relate to the promotion of discounts and savings off energy use and/or supply charges under those plans. We refer to this new focus of our energy work as ‘discounts off what?’
This new focus will not come as a surprise to the sector. In August 2013, the ACCC wrote to energy retailers about our concerns. In December 2013, the ACCC commenced legal action against AGL South Australia for allegedly misleading residential consumers in South Australia about electricity discounts.
It is likely that there will soon be further court action. 
Scam disruption 
For the past couple of years, the ACCC’s Infocentre has received around 80,000 contacts about scams. In 2012, consumers reportedly lost over $93 million. These statistics are very concerning and yet represent just the tip of the iceberg when it comes to the financial impact of scams.
The ACCC, as the national consumer protection agency, has an important role in helping protect Australians from scams. In the past we have focused on empowering consumers to spot a scam and how to avoid being scammed.
This year we are prioritising some level of scam disruption. We will seek to identify and contact scam victims in order to stop money being sent to scammers. We will also be working with money remitters, for example Western Union, to stop fraudulent funds transfers.
Given the size of the problem, this is not something that we can tackle alone. We will be working collaboratively with state and territory consumer agencies, many of which are already doing excellent work in this area.


Two perspectives on work, boundaries and power.

'Labour Market Deregulation and Temporary Migrant Labour Schemes: An Analysis of the 457 Visa Program' by Iain Campbell and Joo-Cheong Tham in (2013) 25(3) Australian Journal of Labour Law examines the 457 visa program (Australia's main temporary labour migration scheme) through the concept of 'labour market deregulation'.

The authors comment
In this article, 'deregulation' is not equated with the removal of regulation; rather it is defined to mean the removal of a particular kind of regulation - protective regulation. Applying this concept to the 457 program, the article identifies three protective purposes: protection of the employment opportunities of local workers; protection of the working conditions of local workers; and protection of the working conditions of temporary migrant workers. It argues that this program was deregulated under the Coalition Government (1996-2007) while being subject to re-regulation under the current ALP Government (2007-present). The significance of this study is twofold: it provides a specific analysis of the 457 program, up to and including the most recent changes, and it suggests an analytical approach to examining the regulation of temporary migrant work. … 
The phenomenon of temporary migrant work is directly relevant to labour law scholarship. It concerns a substantial segment of the modern workforce. At the same time, this is a special segment, whose employment conditions are influenced not only by mainstream labour regulation but also by their temporary migrant status and the rules that govern that status. There is concern here that such workers encounter precarious employment conditions partly because of their migratory status. As a result, the phenomenon of temporary migrant work presses scholars to go beyond the boundaries of traditional labour law scholarship; it points to the overlap between the study of labour law and the study of migration law and it underlines the value of the argument for a re-envisioning of the scope of labour law in order to capture its role in shaping labour market regulation. Some scholars have begun to explore the connection between labour law and migration law. Yet, there is an immediate challenge in studying temporary migration schemes as labour law scholars: how should a fast-changing area with seemingly different organising principles be understood? How relevant are traditional concepts and arguments to do with labour regulation? 
This article picks up the challenge of examining the complex detail of temporary migration schemes by focussing on the major program in Australia that is explicitly designed to facilitate temporary migrant work – the 457 visa program, which now goes by the formal name of the Temporary Work (Skilled) (Subclass 457) visa program7 (from 1996 to 2012, its formal title was the Subclass 457 Business (Long Stay) visa program). The article aims to begin an analysis of this important and controversial scheme, using the tools of labour law scholarship. 
Introduced in 1996, the program has been controversial, with critics complaining about a lack of adequate protective regulation and the possibility of abuse. These complaints stem in part from the structure of the program as an employer-sponsored program. The 457 visa program could in fact be called an ‘employer-driven scheme’, as employers determine both which workers are brought in under the scheme and also the number of such workers, with no limits or quotas applying to the number of 457 visas issued. In order to successfully apply for a 457 visa, a worker needs to be nominated by an employer. These visas can last up to four years and can also be renewed (repeatedly). 457 visa workers, known as primary visa-holders, are entitled to bring members of the immediate family (secondary visa-holders). They can transfer employers provided that the new employer meets the relevant migration requirements. There is no restriction on these workers applying for permanent residence. Many features of the scheme encourage dependence on the employer, opening up room for abuse. 
This article assesses the detail of the 457 visa program through the pivotal concepts of labour market ‘deregulation’ and ‘re-regulation’, commonly used to characterise changes in labour law and labour regulation, both internationally and in Australia. These concepts can be blurred and characterised by difficulties, but they have proven useful in establishing the parameters both of the changes themselves and of the debates that accompany these changes. We argue that, carefully defined, they remain useful in labour law scholarship and can also be used fruitfully to analyse temporary migrant work schemes. In this way, this article offers two contributions to the literature of labour law in Australia: first, an analysis of one important program of temporary migration; and, second, further reflection on the value of central concepts used in current scholarship. 
The article is set out in the following manner. It begins with elaboration of the concept of ‘deregulation’ (and ‘re-regulation’), starting with labour law and then reaching out to show its relevance to temporary migration schemes. In the remainder of the article, the analytical framework is used to begin an assessment of the 457 visa program. The article suggests that the 457 visa program under the Coalition government was deregulatory: this was true when the scheme was enacted in 1996 and a basic deregulatory thrust was maintained over the course of the period to 2007, including in the course of the liberalisation of the rules in 2001. Documenting the changes made since the election of the Australian Labor Party (ALP) to federal government in 2007, the article highlights how such changes, first made in 2009 and more recently in 2013, have entailed a re-regulation of the scheme. We conclude, however, that these changes amount to only a partial re-regulation of the 457 visa program because of the continued existence of substantial executive discretion to set lower levels of protection.
'Control is a Double Edged Sword, and One Edge is Sharper' by Omri Rachum-Twaig in Journal of Law, Technology and Policy (Forthcoming) comments
 In her book Talent Wants to Be Free, Orly Lobel suggests a new, behavioral-economics, paradigm to employment intellectual property (EIP) law. Lobel describes a dynamic model to EIP control mechanisms such as non-competes, trade secrets and invention assignments, and argues that loosening them will create positive externalities to employers that will make such a shift economically justified. I first discuss the content of the book and the journey Lobel is guiding us through trying to emphasize the important notions in it and taking them a step forward towards a more "radical" suggestion. I argue that the utilitarian debate over EIP controls cannot capture all the sensibilities of the legal aspects of human capital, and that a new legal framework should not be constructed according to an aggregate of positive and negative externalities, rather than upon moral/natural-law grounds that have an economic justification as well. I argue that although Lobel's new model to EIP controls is very convincing and appealing to employers as well as to employees, there is a solid economical (as well as moral) ground for a dramatic change in the legal framework of EIP, regardless of the employers' point of view. I examine this argument with a case study of the survival of the music industry albeit the turbulences it went through at the beginning of the technological era with the emergence of file sharing and other forms of piracy, and will present an economic model that supports the moral grounds for a legal paradigm shift.


'The Rise of a New Type of Surveillance for Which the Law Wasn't Ready' by Kirill Levashov in (2013) 15 Columbia Science and Technology Law Review 164 considers
the rising use of facial recognition technology in society and in law enforcement, and its legal implications. Section I describes the technology and how it works. While the potential uses for this technology are too numerous to list, this section goes on to describe the most widespread and troubling current uses, as well as some of the planned uses that illustrate the scope that the technology has the potential to achieve, and why that could be a problem. Section II discusses some of the more prevalent legal concerns that accompany the rise of this technology, such as privacy violations, chilling of free speech, and stalking. Section III analyzes the existing state of the law, and suggests some channels that may offer protection from the concerns raised in section II, while noting that these channels were not designed with facial recognition technology in mind so the protections offered may be weakened or, depending on the leanings of a court of law, nonexistent. The article closes by suggesting additional statutory protections that could be enacted to more completely address the issue, either piecemeal or as part of a larger regulatory scheme.


'Bankruptcy Stigma: A Socio-Legal Study' by Michael D Sousa in (2014) 87 American Bankruptcy Law Journal comments
 For as long as the institution of bankruptcy has existed, legal commentators have debated whether it is appropriate for debtors to experience some social stigma upon filing for personal bankruptcy - that is, whether it serves the goals of bankruptcy law for debtors to feel shame. While this issue has been extensively discussed as a theoretical matter, to date no legal commentator or scholar has examined the question as an empirical matter: do debtors in fact associate feelings of shame with filing for bankruptcy, and, if so, why (or why not)? This article, for the first time, undertakes precisely this inquiry. Specifically, the article relies on empirical methods to report findings gathered from extensive interviews with debtors themselves. What emerges is that debtors experience a wide array of feelings associated with filing for bankruptcy, from debilitating shame to no shame at all. This finding, in turn, raises serious questions about the theoretical role of shame and stigma in designing bankruptcy law and policy.
Sousa states that
The word “stigma” traces its origins to ancient Greece, where the citizens of Attica and Athens branded their slaves with a tattoo known as a “stigma,” stemming from the word “stig,” which meant “to prick.” Today we use the terms “stigma” and “stigmatization” to refer to the societal disapproval associated with an individual or group based upon some characteristic, trait, or behavior that deviates from accepted norms or expectations. Traditionally, sociologists have limited their studies on stigmatization to the physically disabled, mentally disabled, mentally ill, homeless, homosexual, elderly, or the stigma associated with being a known criminal, prostitute, or a member of a minority group. While the characteristics and traits that receive social opprobrium may differ from one society to the next, the phenomenon of stigmatization is universal and the volume of sociological literature on stigmatization is, in a word, massive. 
While sociologists consider the phenomenon of stigma to be universal, conceptions of what attributes tend to be stigmatized are bound by culture, time, and history. Beliefs about what attributes receive a stigma are social constructs and are “socially distributed” throughout a particular culture. In the western world, one such attribute appears to be the moral disapproval of personal indebtedness and the general societal disdain towards individuals who file for bankruptcy protection. 
To date, very little sociological attention has been devoted to studying the stigma associated with being heavily in debt and, in particular, with declaring bankruptcy. Despite the existence of American bankruptcy law for over one hundred eighty years and the escalating use of personal credit in America, only a handful of studies have addressed this stigma. The scholars in this small group have primarily focused on the question of whether bankruptcy stigma exists in modern society and whether it has declined over the years. They have reached sharply differing conclusions. 
The need to study bankruptcy stigma remains relevant today. The filing rate for consumer bankruptcy debtors has risen steadily since the 1960s, with the greatest increase occurring during the 1990s. This dramatic spike in consumer bankruptcy petitions reinvigorated public debate over the role and efficacy of stigma as a means of controlling the bankruptcy filing rate. From the 1990s to the present, more than one million individuals have filed for bankruptcy protection every year. The 2005 Amendments to the Bankruptcy Code, through the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), were predicated, in part, on a belief that debtors were abusing the bankruptcy process and that the shame and stigma associated with bankruptcy had eroded. The sweeping changes in the Bankruptcy Code were designed to ferret out the abusers, allowing debtors with primarily consumer debts to file a Chapter 7 bankruptcy petition only if they truly had no ability to repay a meaningful portion of their debts. It has been approximately eight years since BAPCPA took effect. There is a need to reexamine whether those who ran the gauntlet under this new law and were deemed worthy of filing chapter 7 bankruptcy, nevertheless, continue to experience shame associated with having declared bankruptcy. 
This Article does not address whether the changes in the law were successful in screening out “abusers,” nor does it intend to weigh in on the debate as to whether bankruptcy stigma has eroded over the past several decades. Instead, this Article offers a synthesis of existing scholarship on the nature of bankruptcy stigma and then presents the findings of my qualitative, sociological study of this issue. The first half of the Article will address the sociology of stigma in general terms, offer possibilities for the cultural sources of bankruptcy stigma, and then summarize the existing studies that have focused exclusively on bankruptcy and debt stigma. The second half of this Article will present my empirical findings on bankruptcy stigma, based on my study of consumer debtors who filed for bankruptcy in the years 2006, 2008, and 2010. 
In the law and society tradition, my approach here is not to explain the act of filing for bankruptcy relief in legal terms, but in social terms. Therefore, my main concern is not in advancing prescriptive arguments about bankruptcy law in general or in making recommendations for revising the Bankruptcy Code. Rather, my overriding purpose is to explain how consumer bankruptcy filings affect the lives of the individuals who have sought its relief. To borrow a phrase from Roger Cotterrell, my purpose is to offer a small “picture[ ] of the social world of law” from the perspective of former bankruptcy debtors, and to convey and describe their experiences with filing for bankruptcy. In sum, my findings suggest that debtors’ internalized notions of shame and stigmatization today occupy a full spectrum of attitudes.

Underground Economies

Reading 'Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major US Cities' [PDF], an Urban Institute report by Meredith Dank, Bilal Khan, P. Mitchell Downey, Cybele Kotonias, Debbie Mayer, Colleen Owens, Laura Pacifici and Lilly Yu.

The authors state that
The underground commercial sex economy (UCSE) generates millions of dollars annually, yet investigation and data collection remain under resourced. Our study aimed to unveil the scale of the UCSE in eight major US cities—Atlanta, Dallas, Denver, Kansas City, Miami, Seattle, San Diego, and Washington, DC. Across cities, the UCSE's worth was estimated between $39.9 and $290 million in 2007, but decreased since 2003 in all but two cities. Interviews with pimps, traffickers, sex workers, child pornographers, and law enforcement revealed the dynamics central to the underground commercial sex trade—and shaped the policy suggestions to combat it. 
They indicate that
In 2010, the National Institute of Justice funded the Urban Institute’s Justice Policy Center to measure the size and structure of the underground commercial sex economy in eight major US cities. The goals of this study were to: (1) derive a more rigorous estimate of the underground commercial sex economy (UCSE) in eight major US cities and (2) provide an understanding of the structure of this underground economy. To date, no reliable data exist to provide national or state policymakers with a verifiable and detailed understanding of underground commercial sex trade networks or the ways in which these networks interact with one another on the local, state, or interstate level. In addition, there is no information regarding the relationship between the UCSE and the local commercial sex trade or commercial sex activity conducted over the Internet. This study aimed to close the gap in our understanding about the nature and extent of these activities. 
Their research was guided by four main questions:
1. How large is the underground commercial sex economy in eight major US cities? 2. To what extent are the underground commercial sex, drug, and weapons economies interconnected in the eight major US cities? 3. How do the ties between traffickers within the underground commercial sex economy impact the transportation of sex trafficking victims? 4. What are the network characteristics of the traffickers that operate within the underground commercial sex economy? 
Data was collected in San Diego, Seattle, Dallas, Denver, Washington, DC, Kansas City, Atlanta, and Miami, with an analysis of existing datasets documenting the market changes for illegal drugs and weapons  to measure changes in these markets and estimate the overall size of these markets. The authors measured changes in a series of “proxy” variables, which were assumed to be proportional to underlying activity. Qualitative data was collected through interviews with 119 stakeholders and 142 convicted offenders, including federal/local  law enforcement officers, prosecutors, pimps/sex traffickers, sex workers, and child pornographers. Stakeholders and offenders were interviewed about the structure of the UCSE, the profits generated through the UCSE, networking within the UCSE, and changes in the UCSE over time. 

The main findings are as follows -
 Sex Trafficking and Sex Work Findings 
Estimates of the UCSE in 2007 range from $39.9 to $290 million in the cities included in the study. In five of the seven cities, the size of the UCSE decreased from 2003 to 2007. During the same time period, the underground drug economy increased in five cities and the underground gun economy decreased in three cities, increased in three cities, and remained the same in one city. 
In all eight study sites, there appears to be no connection between weapons trafficking and the UCSE. The overlap with drug trafficking varies by UCSE venue. In five of the study sites, gang involvement in sex trafficking and prostitution seems to be increasing. Neither offenders nor law enforcement stakeholders offered concrete evidence of a connection between domestic weapons trafficking and domestic sex trafficking or prostitution. The connection between drug trafficking and the UCSE varies by type of sex venue. 25% of pimp respondents (controlling street and Internet sex work) worked as drug dealers prior to working as pimps, and 18% of respondents continued to deal drugs while they pimped, creating overlap between the profits and networks within each economy. The connections between drug trafficking and indoor commercial sex venues such as brothels and erotic massage parlors are unclear at present and require additional investigation. The involvement of gangs in pimping was cited in five of the eight study sites. 
Pimps travel in circuits and utilize social networks to facilitate the transportation of employees to different locations for work. Pimps transported women and girls along circuits that connect different cities with active UCSEs. Law enforcement respondents reported local, statewide, regional, and national circuits. Offenders reported that connections with pimps in other cities helped them stay informed about law enforcement activities and local events that could affect travel decisions. 
Pimps and sex workers cited many of the same factors influencing their decision to become involved in the UCSE. Pimps described neighborhood influence, family exposure to sex work, lack of job options, and encouragement from a significant other or acquaintance as critical factors in their decision to engage in the UCSE. Sex worker respondents explained, and previous studies have also established, that street-based sex workers become involved in sex work for similar reasons such as economic necessity, family and peer encouragement, childhood trauma, and social acceptance. 
Pimps rely on multiple actors to maintain control over UCSE operations. Individuals already under pimp control play a critical role in recruiting other individuals to engage in the UCSE; friends or family members work as drivers or provide security; and complicit legal businesses often enable sex trafficking operations. Though pimps can operate without the support of additional actors, their assistance often helps pimps expand their operations, maintain tighter control over their employees, and avoid law enforcement detection. 
Different forms of coercion and fraud are used by pimps to recruit, manage, and retain control over employees. These forms include feigning romantic interest, emphasizing mutual dependency between pimp and employee, discouraging women from “having sex for free,” and promising material comforts. These methods are relatively advanced; for example, pimps reported adjusting their recruitment methods in response to their observations regarding the personal needs, experience, and vulnerabilities of the individuals they intend to recruit. 
While pimps have varying levels of knowledge regarding law enforcement tactics and sentencing surrounding sex trafficking, offenders believed that pimping was less risky than other crimes, including drug trafficking. Though the majority of respondents stated that arrest is the foremost “risk” of pimping, they also routinely reported that they believed pimping was less risky than other crimes. 
The widespread availability and rapid expansion of the Internet has redefined the spatial and social limitations of the sex market by introducing new markets for both recruitment and advertisement. Findings from this study corroborate extant literature on the expansion of Internet use to facilitate sex work. Offenders reported new marketing opportunities for pimps to connect with both recruits and clientele, including online classifieds, social media, and networking websites. 
Although interviews with offenders did not uncover elements of organized crime, interviews with law enforcement suggest that the level of “organized crime” and degree of criminal network involvement varies by UCSE venue. Stakeholders and offenders described pimps that primarily facilitate street and Internet sex work as networked socially, rather than through traditional organized crime structures. Higher levels of organized crime were suspected by law enforcement within erotic massage parlors, strip clubs, and brothels, although these suspicions remain largely unconfirmed. 
Findings suggest that the cases of pimping and sex trafficking investigated and prosecuted in the United States represent only a small fraction of the UCSE. Across sites, criminal justice stakeholders felt the UCSE was much larger than they were able to investigate, due to resource constraints, political will, or lack of public awareness about the prevalence of UCSE crimes. Multiple offenders expressed the sentiment that “no one actually gets locked up for pimping.” 
Child Pornography Findings 
Child pornography is an escalating problem and has become increasingly graphic with younger victims. Both stakeholders and offenders incarcerated on child pornography charges described a growing number of individuals viewing online child pornography. Both stakeholders and offenders pointed to increasingly graphic content, often featuring violent acts against infants and toddlers. 
Child pornography is an international crime that transcends real and virtual borders. Child pornography is a crime that has become global in scope, particularly with the advent of the Internet. Through technology and the Internet, individuals can now download, trade, and produce child pornography with anyone in the world, anytime during the day, seven days a week, which may help offenders elude detection. Sex tourism was also cited by stakeholders interviewed for this study as an international problem that is growing in both scope and scale. 
Child pornography is easy to access online and requires little technological savvy to download. Law enforcement officials and child pornography offenders unanimously agreed that the Internet has made child pornography extremely accessible and that individuals need very little technological knowledge to not only download but also trade child pornography content. 
Many child pornography offenders want treatment. Inmates incarcerated on child pornography charges frequently described their relationship with child pornography as an addiction or sickness. They highlighted the paucity of treatment options within prison, which are only available at certain facilities for inmates close to release. 
Child pornography is commonly considered a victimless crime by child pornographers who do not commit contact offenses. The majority of individuals interviewed for this study who were incarcerated for non-contact child pornography offenses (possession and distribution) claimed to never have engaged in contact offenses with children. Therefore, they believed their crime was “victimless” since they were downloading and/or trading the images—not producing new content. 
For offenders, the prevalence of online child pornography communities reinforces and normalizes child pornography offenses. Many of the offenders interviewed were members of online child pornography communities. These communities allow them to be around like-minded individuals, share child pornography content, and discuss their fantasies, which may or may not involve first-hand contact with children. Online child pornography communities also allow individuals to communicate with one another under a cloak of anonymity. 
Due to resource limitations, the least technologically savvy offenders are most likely to be detected. Both stakeholders and inmates incarcerated on child pornography charges described a variation in collecting behavior and networking levels across Internet child pornography offenders. While some offenders are technologically sophisticated, sharing strategies to evade law enforcement within structured trading networks, other offenders described themselves as “point and click,” using rudimentary methods to download, store, and share child pornography. 
Policy and Practice Implications 
The current findings expand our knowledge about the size and structure of the underground commercial sex economy. Further, the findings have implications for policy and practice:
  • All states and DC should mandate training to ensure that law enforcement is equipped with the knowledge necessary to identify and pursue cases of human trafficking. 
  • All states and DC should develop human trafficking task forces or bodies to help coordinate law enforcement strategies statewide. 
  • All states should include fraud and coercion in their definitions of sex trafficking, and enact statutes that invite broad interpretations of fraud and coercion that include subtle, non-physical forms used to manipulate victims. 
  • All states and DC should allow law enforcement to use wiretaps to investigate human trafficking offenses. 
  • Federal law should require that trafficking hotlines are posted on websites hosting service advertisements, including Craigslist.com and Backpage.com. All states and DC should similarly mandate that local newspapers hosting classified advertisements post trafficking hotline information. 
  • Additional resources should be made available to local and state law enforcement agencies to maintain consistent and visible law enforcement attention to sex trafficking and pursue investigations. 
  • Cities and counties should address sex trafficking as a complex problem that requires a systemwide response, and schools, law enforcement, and social service agencies must work collaboratively to combat sex trafficking in their communities. Prevention campaigns must ensure that both boys and girls are educated about the role of force, fraud, coercion, and exploitation in sex trafficking. 
  • In coordination with prosecutors, law enforcement trainings should focus on both victim and offender interview techniques to identify signs of fraud and coercion. Local and federal prosecutors, law enforcement, and judges should be trained on the evidence necessary to prove fraud and coercion according to the federal Trafficking Victims Protection Act standards and the legal standards of state human trafficking laws. 
  • Investigative techniques used to uncover organized crime, drug trafficking, and gangs should be adopted to better uncover the level of organized crime within all forms of the UCSE. Cross-training of narcotics, gang, and prostitution/sex trafficking investigators should be developed and promoted. 
  • Steps should be taken to increase law enforcement racial, ethnic, and gender diversity, and recruit individuals with fluency in languages spoken by suspected offenders and victims in the local UCSE. 
  • Authorities in countries where child pornography is being produced, traded, and downloaded, and where sex tourism is occurring, not only need to cooperate with one another but also need to make this issue a priority. One way to accomplish this is by developing and enforcing memoranda of understandings between the United States and other countries which detail how these offenders will be identified and who will be in charge of the investigation and prosecution. 
  • Accessible treatment is a vital part of the solution to combat child pornography. Though resources are available for online child pornography behavior, they are not well publicized in the United States. 
  • Child pornography laws need to be strengthened so that individuals who facilitate or host online child pornography content and communities are held criminally responsible for their actions. 
  • Due to constantly evolving technology, more resources should be invested in law enforcement to stay up to date on new methods. Additionally, the criminal justice system should properly distinguish between low-level and serious child pornography offenders.

12 March 2014

Practitioner Vetting

Prosecution of Canberra general practitioner Ammar Dhaimat raises questions about identity, vetting and professional regulation.

The ABC reports that Dhaimat has been convicted on two counts of an act of indecency -
Dhaimat was sentenced to six months in jail, but it was immediately suspended on the grounds he enter into a good behaviour order for two years.
It is understood Interpol and the United Kingdom Medical Board are continuing to investigate Dhaimat over separate matters which occurred during his time in the UK. 
He has also been under investigation by the Australian Federal Police fraud squad, the Australian Medical Council, the Department of Immigration and the Federal Court for forging official documents. 
Police said that during searches of Dhaimat's house they discovered numerous official documents with false details, including those on a form which allowed him to work as a doctor in Australia. 
Dhaimat is currently suspended from practicing medicine in Australia.
Disturbingly, Dhaimat still appears on the ACT Health Department's 'Find A GP' sites.

Last year the ABC reported that the ACT Magistrates court
heard Dr Dhaimat is wanted by Interpol in relation to a similar charge in the UK, after fleeing the country while on bail. 
It prompted ACT magistrate Beth Campbell to ask how someone could be registered to practice medicine in the ACT while having outstanding offences overseas. 
The body responsible for registration the Australian Health Practitioner Regulation Agency says all doctors including Dr Dhaimat must sign an annual declaration that they do not have pending criminal proceedings in relation to sex offences. 
The Agency says when Dr Dhaimat was registered to practice in the ACT in May 2008 he would have required a certificate of good standing from overseas medical authorities and a clearance from the Australian Federal Police (AFP). 
Previously the lawyer for Dr Dhaimat has told the magistrates court he has only practiced medicine in Jordan and Australia. 
The AFP received paperwork relating to an extradition request from Interpol on April 13, 2013.
In January 2014 the Sydney Morning Herald stated that Dhaimat
is also facing charges in the ACT Magistrates Court for allegedly possessing varying quantities of six different types of anabolic steroids. 
He was granted on bail in May under strict conditions, that he provide a $20,000 surety, surrender his passports, report to Woden police each day and abide by a curfew. … 
His friend, Sammy Hajj, said Dr Dhaimat wanted three variations to his current bail conditions, including the release of $10,000 held by the court and reduced curfew. 
But the prosecution opposed the application because the required paperwork had not been correctly filed. … 
During the discussion, Mr Hajj, who acted as surety for the doctor, revealed Dr Dhaimat had gone broke since being suspended from practicing medicine. 
The court heard the doctor had previously earned between $12,000 to $15,000 a week, and owned three properties. 
But he had been unable to meet bank repayments while suspended and the homes had been repossessed.

Fairness, food and famine

'Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat' by Kenneth Lasson comments
In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if it does not adversely affect others – does not negate the fact that “we are a religious people whose institutions presuppose a Supreme Being.” This is our way of life. 
While our national psyche pays homage to the nobility of the First Amendment's mandate for a tolerant society, however, we likewise seek to promote law and order by promulgating rules and regulations ‒ some of which cause more problems than they resolve. In the United States, various courts have ruled that kosher butchers may be excluded from collective bargaining units; that a Jewish court of arbitration panel may forbid trade with disapproved butchers; that retail sellers implicitly stipulate their compliance with rabbinic authorities; that a state law may incorporate a rabbinical ruling on kosher labeling; and that kosher symbols may be subject to trade infringement laws. 
That all religions have their sacred cows and holy wars neither demeans nor ennobles them. But the law does not take sides. This article examines the Constitutional difficulties presented by some of them, especially when regulatory schemes bring into play both consumer protection of the public and recognition of individual rights. In the process it provides a broad historical background (describing early civil and criminal litigation in the area), catalogues the presently competing supervisory organizations, and looks at some of the more intriguing cases that have arisen in recent years. 
What emerges is a tale of religion, politics, and filthy lucre that goes far beyond your father’s first food fight: not only a fascinating picture of contemporary life and mores, but a sobering example of the limitations of the law.
The Final report ('The transformative potential of the right to food') by the UN Special Rapporteur on the right to food meanwhile offers a summary of key recommendations made in past thematic reports -
A. Ensuring access to resources 
1. Access to land 
In a context in which commercial pressures on land are increasing, it is crucial that States strengthen the protection of land users and implement the Voluntary Guidelines on Responsible Governance of Tenure of Land and other Natural Resources. 
In particular, States should: (a) Ensure security of tenure, by adopting anti-eviction laws and improving the regulatory framework concerning expropriation; (b) Conduct decentralized mapping of various users’ land rights and strengthen customary systems of tenure; (c) Adopt tenancy laws to protect tenants from eviction and from excessive levels of rent; (d) Respect the rights of special groups, such as indigenous peoples, fisherfolk, herders and pastoralists, for whom the protection of commons is vital; (e) Prioritize development models that do not lead to evictions, disruptive shifts in land rights and increased land concentration, and ensure that all land investment projects are consistent with relevant obligations under international human rights law; (f) Refrain from criminalizing the non-violent occupation of land by movements of landless people; (g) Implement redistributive land reform where a high degree of land ownership concentration is combined with a significant level of rural poverty attributable to landlessness or to the cultivation of excessively small plots of land by smallholders, and supporting beneficiaries of land redistribution to ensure that they can make a productive use of their land; and (h) Regulate land markets to prevent the impacts of speculation on land concentration and distress sales by indebted farmers. 
2. Seeds 
Guaranteeing food security in the future requires that we support crop genetic diversity, including agrobiodiversity. This is particularly important for small-scale farmers in developing countries, who still overwhelmingly rely on seeds which they save from their own crops and which they donate, exchange or sell. 
In order to ensure that the development of the intellectual property rights regime and the implementation of seed policies at the national level are compatible with the right to food, States should: (a) Make swift progress towards the implementation of farmers’ rights, as defined in article 9 of the International Treaty on Plant Genetic Resources for Food and Agriculture; (b) Not allow patents on plants and establish research exemptions in legislation protecting plant breeders’ rights; (c) Ensure that their seed regulations (seed certification schemes) do not lead to an exclusion of farmers’ varieties; and (d) Support and scale up local seed exchange systems such as community seed banks and seed fairs, and community registers of peasant varieties. 
Donors and international institutions should assist States in implementing the above recommendations, and, in particular: (a) Support efforts by developing countries to establish a sui generis regime for the protection of intellectual property rights which suits their development needs and is based on human rights; (b) Fund breeding projects on a large diversity of crops, including orphan crops, as well as on varieties for complex agroenvironments such as dry regions, and encourage participatory plant breeding; (c) Channel an adequate proportion of funds towards research programmes and projects that aim at improving the whole agricultural system and not only the plant (agroforestry, better soil management techniques, composting, water management, good agronomic practices). 
3. Fisheries 
It is urgent that States move towards sustainable resource use while ensuring that the rights and livelihoods of small-scale fishers and coastal communities are respected and that the food security of all groups depending on fish is improved (A/67/268). 
To reach this objective, States should: (a) Respect the existing rights of artisanal and small-scale fishing communities; (b) Refrain from taking measures, including large-scale development projects, that may adversely affect the livelihoods of inland and marine small scale fishers, their territories or access rights, unless their free, prior and informed consent is obtained; (c) Strengthen access to fishery resources and improve the incomes of small-scale fishing communities by regulating the industrial fishing sector to protect the access rights of traditional fishing communities. (d) Protect labour rights in the fishing industry; (e) When engaging in fishing access agreements, agree to introduce provisions concerning conditions of work in the fishing industry and support efforts of coastal States to regulate the fishing practices of industrial vessels operating in exclusive economic zones. (f) Implement their commitments under the Plan of Implementation of the World Summit on Sustainable Development, including to reduce their fishing capacity and to create marine protected areas; (g) Implement the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing; and (h) Reduce the proportion of fish used for fishmeal purposes. 
B. Supporting local food systems 
1. Reinvestment in agriculture 
Reinvestment in agriculture and rural development should effectively contribute to the realization of the right to food. 
In order to achieve this important goal, the international community should: (a) Channel adequate support to sustainable farming approaches that benefit the most vulnerable groups and that are resilient to climate change; (b) Prioritize the provision of public goods, such as storage facilities, extension services, means of communications, access to credit and insurance, and agricultural research; (c) In countries facing important levels of rural poverty and in the absence of employment opportunities in other sectors, establish and promote farming systems that are sufficiently labour-intensive to contribute to employment creation; and (d) Ensure that investment agreements contribute to reinforcing local livelihood options and to environmentally sustainable modes of agricultural production. 
2. Agroecology 
Moving towards sustainable modes of agricultural production is vital for future food security and an essential component of the right to food. Agroecology has enormous potential in that regard. 
States should support the adoption of agroecological practices by: (a) Building on the complementary strengths of seeds-and-breeds and agroecological methods, allocating resources to both, and exploring the synergies, such as linking fertilizer subsidies directly to agroecological investments on the farm (“subsidy to sustainability”); (b) Supporting decentralized participatory research and the dissemination of knowledge by relying on existing farmers’ organisations and networks. (c) Increase the budget for agroecological research at the field level, farm and community levels, and national and sub-national levels; and (d) Assess projects on the basis of a comprehensive set of performance criteria (impacts on incomes, resource efficiency, impacts on hunger and malnutrition, empowerment of beneficiaries, etc.) in addition to classical agronomical measures. 
3. Support small-holder farmers 
The realization of the right to food for all will require proactively engaging in public policies aimed at expanding the choices of smallholders to sell their products at a decent price. 
To achieve this, States should: (a) Strengthen local and national markets and support continued diversification of channels of trading and distribution; (b) Support the establishment of farmers’ cooperatives and other producer organizations; (c) Establish or defend flexible and efficient producer marketing boards under government authority but with the strong participation of producers in their governance; (d) Encourage preferential sourcing from small-scale farmers through fiscal incentives or by making access to public procurement schemes conditional on the bidders’ compliance with certain sourcing requirements. 
4. Contract farming 
To ensure that contract farming and other business models support the right to food (A/66/262), Governments should ensure that regulatory oversight keeps pace with the level of the expansion and the complexity of business models. 
In particular, States should: (a) Regulate key clauses of contracts, including those concerning price fixing, quality grading and the conditions under which inputs are provided, and the reservation of a portion of land for the production of food crops for self-consumption; (b) Monitor labour conditions in contract farming; (c) Link their support for contract farming to compliance with environmental conditions, such as reduced use of chemical fertilizers or the planting of trees, or to the adoption of a business plan that provides for a gradual shift to more sustainable types of farming; and (d) Set up forums in which the fairness of food chains could be discussed among producers, processors, retailers and consumers to ensure that farmers are paid fair prices for the food they produce. 
5. Agricultural workers 
To guarantee that those working on farms can be guaranteed a living wage, adequate health and safe conditions of employment, States should: (a) Improve the protection of agricultural workers by ratifying all ILO conventions relevant for the agrifood sector and ensuring that their legislation sets a minimum wage corresponding at least to a “living wage”; and (b) Monitor compliance with labour legislation by devoting appropriate resources for an effective functioning of labour inspectorates in agriculture, and taking the requisite measures to reduce to the fullest extent possible the number of workers outside the formal economy to ensure that agricultural workers are progressively protected by the same social security schemes applicable to other industries. 
C. Deploying national strategies 
1. National strategies 
States should build national strategies for the realization of the right to adequate food, which should include mapping of the food-insecure, adoption of relevant legislation and policies with a right-to-food framework, establishment of mechanisms to ensure accountability, and the establishment of mechanisms and processes which ensure real participation of rights-holders, particularly the most vulnerable, in designing and monitoring such legislation and policies. 
For national strategies to be effective, they should be: (a) Grounded in law, through the adoption of right to food/food and nutrition security framework laws and ideally through the inclusion of the right to food in national constitutions; (b) Multisectoral and inclusive, ensuring the coordination amongst Government ministries and institutions and allowing for meaningful participation of civil society in their formulation and monitoring; (c) Adequately funded. (d) Monitored also by national courts and national human rights institutions as well as through social audits and community-based monitoring at the local level. 
2. Human Rights Impact Assessments 
To ensure consistency between domestic policies aimed at the full realization of the right to food and external policies in the areas of trade, investment, development and humanitarian aid, States should establish mechanisms that ensure that the right to food is fully taken into account in those policies. The Special Rapporteur has presented Guiding Principles on Human Rights Impact Assessments, based on a range of consultations with governmental and non-governmental actors, which provide guidance as to how to conduct such assessments, both ex-ante and ex-post . 
3. Women’s rights 
In order to strengthen the protection of the right to food of women, States should: (a) Remove all discriminatory provisions in the law, combat discrimination that has its source in social and cultural norms, and use temporary special measures to accelerate the achievement of gender equality; (b) Recognize the need to accommodate the specific time and mobility constraints on women as a result of the existing gender roles, while at the same time redistributing the gender roles by a transformative approach to employment and social protection; (c) Mainstream a concern for gender in all laws, policies and programs, where appropriate, by developing incentives that reward public administrations which make progress in setting and reaching targets in this regard; (d) Adopt multisector and multi-year strategies that move towards full equality for women, under the supervision of an independent body to monitor progress, relying on gender-disaggregated data in all areas relating to the achievement of food security. 
4. Social protection 
The provision of social protection can substantially contribute to the realization of the right to food. 
States should: (a) Guarantee the right to social security to all, without discrimination, through the establishment of standing social protection schemes; (b) Ensure that, when targeted schemes are adopted, they are based on criteria that are fair, effective and transparent; (c) Define benefits under national social protection systems as legal entitlements, so that individual beneficiaries are informed about their rights under social programs and have access to effective and independent grievance redressal mechanisms; (d) Ensure that the design of social protection schemes is effectively transformative of existing gender roles; and (e) Put in place a global reinsurance mechanism, creating an incentive for countries to set up robust social protection programmes for the benefit of their populations. 
5. Nutrition 
To reshape food systems for the promotion of sustainable diets and effectively combat the different faces of malnutrition, States should: (a) Adopt statutory regulation on the marketing of food products, as the most effective way to reduce marketing of foods high in saturated fats, trans-fatty acids, sodium and sugar (HFSS foods) to children, and restrict marketing of these foods to other groups; (b) Impose taxes on soft drinks (sodas), and on HFSS foods, in order to subsidize access to fruits and vegetables and educational campaigns on healthy diets; (c) Adopt a plan for the complete replacement of trans-fatty acids with polyunsaturated fats; (d) Review the existing systems of agricultural subsidies, in order to take into account the public health impacts of current allocations, and use public procurement schemes for school-feeding programmes and for other public institutions to support the provision of locally sourced, nutritious foods; and (e) Transpose into domestic legislation the International Code of Marketing of Breast-milk Substitutes and the WHO recommendations on the marketing of breast-milk substitutes and of foods and non-alcoholic beverages to children, and ensure their effective enforcement. 
The private sector should: (a) Comply fully with the International Code of Marketing of Breast-milk Substitutes, and comply with the WHO recommendations on the marketing of foods and non-alcoholic beverages to children, even where local enforcement is weak or non-existent; (b) Abstain from imposing nutrition-based interventions where local ecosystems and resources are able to support sustainable diets, and systematically ensure that such interventions prioritize local solutions; (c) Shift away from the supply of HFSS foods and towards healthier foods and phase out the use of trans-fatty acids in food processing. 
D. Shaping an enabling international environment 
1. Food price volatility 
The international community should find ways to better manage the risks associated with international trade and ensure that least-developed and net food-importing developing countries are better protected from the volatility of international market prices. 
To combat volatility on international markets, the international community should: (a) Encourage the establishment of food reserves at the local, national or regional levels; (b) Improve the management of grain stocks at the global level, including improved information about and coordination of global grain stocks to limit the attractiveness of speculation; (c) Establish an emergency reserve that would allow the World Food Programme to meet humanitarian needs; (d) Explore ways to combat unhealthy speculation on the futures markets of agricultural commodities through commodity index funds. 
2. A new framework for trade and investment in agriculture 
The realization of the right to food requires designing trade rules that support the transition toward more sustainable agricultural practices. The multilateral trade regime as well as regional and bilateral trade agreements must allow countries to develop and implement ambitious food security policies including public food reserves, temporary import restrictions, active marketing boards, and safety net insurance schemes, in support of the progressive realization of the right to food. 
In this regard, States should: (a) Limit excessive reliance on international trade and build capacity to produce the food needed to meet consumption needs, with an emphasis on small-scale farmers; (b) Maintain the necessary flexibilities and instruments, such as supply management schemes, to insulate domestic markets from the volatility of prices on international markets; and (c) Encourage national parliaments to hold regular hearings about the positions adopted by the government in trade negotiations, and ensure that their undertakings under the WTO framework are fully compatible with the right to food; (d) Fully implement the Marrakesh Ministerial Decision on Measures concerning the possible negative effects of the reform programme on least developed and net food-importing developing countries (NFIDCs) and, in order for it to be fully effective, ensure that it include a mechanism to systematically monitor the impact of the Agreement on Agriculture reform process on NFIDCs. 
3. Regulating agribusiness 
States should take steps towards the establishment of a multilateral framework regulating the activities of commodity buyers, processors, and retailers in the global food supply chain, including the setting of standards by these actors and their buying policies. In particular, States should use competition law in order to combat excessive concentration in the agribusiness sector. This requires having in place competition regimes sensitive to excessive buyer power in the agrifood sector, and devising competition authorities with mechanisms that allow for affected suppliers to bring complaints without fear of reprisal by dominant buyers. 
Private actors of the agribusiness sector should refrain from practices that constitute an undue exercise of buyer power, as identified by the States in which they operate, and should: (a) Seek to conclude international framework agreements with global unions; (b) Consider unilateral undertakings to monitor compliance with ILO standards in the supply chain, while supporting their suppliers in achieving compliance; (c) Engage in chain-wide learning to assure that participation in the chain is profitable for all involved, including small-scale producers; (d) Involve smallholders in the elaboration of and compliance with food safety, labour or environmental standards; and (e) Promote fair trade through increased shelf space and information campaigns. 
4. Agrofuels 
The international community should reach a consensus on agrofuels, based not only on the need to avoid the negative impact of the development of agrofuels on the international price of staple food commodities, but also on the need to ensure that the production of agrofuels respects the full range of human rights and does not result in distorted development in producer countries. 
Public incentives for the production of crop-based biofuels must be reduced and eventually removed, while only those advanced biofuels that do not compete with food production for land or other resources should be incentivised. 
5. Food aid and development cooperation 
International aid remains an important component of the right to food. 
Donor States should: (a) Maintain and increase levels of aid calculated as Official Development Assistance as a percentage of GDP; (b) Provide food aid on the basis of an objective assessment of the identified needs in developing countries; (c) Fully respect the principle of ownership in their development cooperation policies by aligning these policies with national strategies for the realization of the right to food; (d) Promote the right to food as a priority for development cooperation.


'Too Soft or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman' by Tess, Hardy and John Howe in (2013) 41(1) Federal Law Review reports on
the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the national legislation regulating wages, working hours and other minimum employment conditions, the Fair Work Act 2009 (Cth). Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. 
 The authors provide a critical analysis of the FWO’s use of enforceable undertakings, including consideration of decision-making process, content, and monitoring and enforcement of undertakings. The analysis is based on a review of the content of all the enforceable undertakings, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings since receiving statutory authorisation to accept them. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that is consistent with the key principles of responsive regulation. Nevertheless, the article identifies some concerns about the accountability of enforceable undertakings that the FWO is working to address.

09 March 2014


The Age indicates that people using the Coles flybuys card or online shopping service are "having their personal details sent to up to 30 other companies owned by the same corporation and to third parties in at least 23 other countries".

The Wesfarmers group's updated privacy policy states that use of those services signifies consent to sharing of data with
other companies in the Wesfarmers group, including Kmart, Bunnings and Officeworks. But the retail giant also revealed that the personal information it collects on its customers might be sent to nations such as China, Pakistan, the Philippines, Mexico, the United Arab Emirates, the US and Britain. Under the Coles policy, personal information, defined as data that identifies someone or allows a person's identity to be ascertained, can be used in conducting risk assessments for credit and insurance. This can include name, contact and household details, transaction history and buying habits.
Coles' detailed policy description was released just before the new Australian Privacy Principles come into force this week making businesses list likely overseas recipients of personal data and conform with stricter rules. Businesses must also take reasonable steps to ensure foreign recipients do not breach the Australian principles or are operating under similar privacy laws in those countries.
A spokeswoman said Coles' global commercial partners had the highest standards of data security and that Coles followed all regulatory requirements and best-practice disclosure.
To adopt the comment attributed to Mandy Rice-Davies, they would say that, wouldn't they! (Few organisations will volunteer that their protocols are inadequate, that their partners are untrustworthy and that Australian "best-practice" regarding matters such as consent is problematical.)

From one perspective the disclosure should not be news - privacy-savvy consumers (or merely people who bothered to think about the Flybuys terms & conditions) should have realised that information is being collected and shared.

The Wesfarmers businesses have been collecting and analysing data over several years. So have their competitors.

We do not know who the data has been shared with and thus cannot make an assessment about the credibility of claims that all will be well. That is a matter of trust.

The article states that
In line with the new legislation, Coles' policy enables customers to access or correct personal information it has collected about them. It does state requests may be rejected, although reasons must be provided if this happens.
Coles says it takes steps to ensure third parties protect the privacy and security of personal information and use the data only for agreed purposes and that it destroys or de-identifies personal information no longer needed. Whenever Coles' online services are used, the company logs where it was used as well as dates, times, file metadata and the links customers click on.
There is of course no binding statement regarding when the data is "no longer needed" and we await definitive advice from the Office of the Australian Information Commission that goes beyond the rather vague guidelines that I discussed in the latest edition of the LexisNexis Privacy, Confidentiality & Data Protection service.

In 'A Republican Account of the Value of Privacy' (University of Melbourne Legal Studies Research Paper No. 673) Andrew J Roberts offers
an account of the value of privacy in securing the republican aims of self-government and conditions of non-domination. It describes how loss of privacy might lead to subjugation to dominating power. The republican concept of domination provides the foundation of a broad and coherent account of the value of privacy. One that encompasses circumstances in which the subject (i) suffers interference as a result of the loss, (ii) is aware that he has suffered a loss of privacy, but suffers no subsequent interference, and (iii) is unaware that he has suffered any loss of privacy, and suffers no subsequent interference. Liberal accounts explain the value of privacy in the first two circumstances by pointing to the possible effect of the loss on the autonomy of the subject, but because they focus on autonomy are unable to explain why privacy is valuable where an agent is unaware of the loss. The republican account provided here explains why loss is harmful in all three circumstances. The final part of the article argues that because privacy is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.