11 April 2014

Facilitation

With reference to the recent item on delation in the Australian Public Service I note 'Lance Armstrong’s Positive, if Reluctant, Step in a Sport’s Purification' by Juliet Macur in the latest NY Times
Last summer, Lance Armstrong sat a few feet from me and said he would never “rat out” his friends by publicly revealing who had helped him dope and who had known about his doping. Not a chance. No way. The last thing he would ever do.
He simply said that “everybody” around him had known about his drug use, and that snitching on those closest to him would be a violation of his duty to be loyal to those who had been loyal to him.
If that was true — and, if the past is any indication, one can never be sure of the truth when talking to Armstrong — it must have been painful for him to turn on those friends late last year when he answered questions about his doping as part of a lawsuit.
Armstrong settled the suit, which was brought by an insurance company seeking to recover $3 million in bonuses it had paid him for winning three Tour de France titles. But before settling, he reluctantly submitted answers to 16 questions about his doping, and those answers became public Wednesday as part of another lawsuit in which Armstrong is a defendant.
In documents released as part of a whistleblower lawsuit, Lance Armstrong reveals for the first time that several key members of his cycling team knew or aided him in doping.
In those answers, first reported by USA Today, Armstrong did exactly what he told me he would never do: He named some names.
A sampling: Johan Bruyneel, his longtime team manager; Chris Carmichael, the coach who made a name for himself as Armstrong’s adviser; Michele Ferrari, Pedro Celaya, Luis Garcia del Moral — three doctors who worked either with Armstrong personally or for his United States Postal Service team; Pepe Martí, a former trainer; and Thom Weisel, who supported the team financially.

NZ Privacy Commissioner report on Veda

In New Zealand the Privacy Commissioner is underwhelmed by the practice of major consumer credit rating service Veda Advantage, the Australian-based business that is the successor to Baycorp Advantage, has attracted substantial criticism over many years and is currently facing criticism over free/charged access by consumers to their credit information. In 2012 Veda boasted that it had 15 million records with credit data on 16.5 million credit active individuals and 4.4 million businesses.

The Commissioner's Report by the Privacy Commissioner into Veda Advantage’s charge for urgent requests for personal information [PDF] last month states -
The Privacy Commissioner has conducted an own motion investigation into Veda Advantage’s charge for urgent requests by consumers for access to their own credit information.
The investigation has concluded that Veda’s current charge of $51.95 for urgent requests is unreasonable. Veda is not legally entitled to charge for some of the aspects of the process that make up its charges. The only aspect that can be charged for is the actual cost of making the information available to the individual – that is copying or formatting; and for delivering the information to the consumer.
The Commissioner’s view is that a reasonable charge would be nominal and that a flat rate at such a high level is unreasonable and therefore unlawful.
The Commissioner has sought undertakings from Veda:
  • that Veda will only charge for the actual cost of putting the requested information into a format ready for delivery and the actual cost of the delivery of information to the requester; and 
  • that Veda will cease charging for other aspects of processing urgent requests.
At the date of publishing this report, Veda had not provided the Commissioner with the assurances sought. Veda disagrees with our interpretation of what the law permits. The Commissioner is now considering what further action to take. That action could take the form of either amending the Credit Reporting Privacy Code, or referring the case to the Director of Human Rights Proceedings for him to consider whether to file proceedings against Veda in the Human Rights Review Tribunal or both.
The first step is to publish this report and findings in order to inform consumers about their rights. While these matters are resolved, consumers may wish to seek free access to their credit report on a regular basis to reduce the risk that they will be put in a position of having to make an urgent request.
This investigation has only been against Veda Advantage. We have not yet investigated other credit reporters’ practices. The Commissioner is considering whether to do so.
The report indicates -
An individual complaint was resolved, but we then undertook an own motion investigation.
We received a complaint that Veda Advantage Ltd  was charging too much for requests by people for a copy of their own credit information, when people wanted the credit information urgently.
The complainant refused to pay for an urgent report and instead received a free credit report, though not as early as he wanted or thought was reasonable. As he had not paid for an urgent report, he could not demonstrate that he had suffered any harm or loss as a result of Veda’s actions. In terms of the law there was therefore no interference with his privacy, and we closed the individual complaint.
However, this did not deal with our concerns that the standard charge for urgent requests was excessive. We therefore commenced an own motion investigation under section 69(2) of the Privacy Act. ... If people want access to their credit information urgently, they have no choice but to pay $51.95.
We note that people making urgent requests for their credit information may be doing so because they have a pressing issue regarding their credit, and accordingly are in a relatively vulnerable position. They may not have “twenty days to spare”.

ACCC Data Breach

The Australian Competition & Consumer Commission has reacted swiftly through the following media release -
The ACCC has today become aware of a breach of personal data collected from some of its websites. 
The affected websites are Recalls Australia, Product Safety Australia, SCAMwatch and the ACCC Public Registers website. 
The email addresses of some subscribers to the ACCC’s information alert services were inadvertently made accessible online. 
They were not indexed by search engines or linked from a web page on our sites. They could only be found if specific URLs were tried. 
The ACCC resolved this issue as soon as it became of aware of it to prevent further access to the email addresses.  
The ACCC is investigating how this issue occurred and is reporting this breach to the Office of Australian Information Commissioner. 
It is not yet clear to the ACCC how many users have been affected or how long this has been an issue. 
The ACCC takes the issue of privacy, including any breaches, very seriously and apologises to affected users. 
The ACCC has no further comment at this time.
It is refreshing contrast to belated responses by Telstra and other large organisations noted elsewhere in this blog.

Justification

'Killing for Your Dog' (University of Denver Legal Studies Research Paper No. 14-14) by Justin F. Marceau comments
Legal fields as divergent as family law, torts, contracts, and trusts have each, to varying degrees, addressed the unique legal status of pets. The rights and obligations of pet owners are a topic of increasing legal interest. Even the criminal law has grappled with the uniqueness of animals to a limited extent by criminalizing animal abuse. Legal developments such as these tend to ameliorate the anachronistic view that animals are merely property. However, substantial pockets of the law have not yet grappled with the unique status of animals as something more than property but, perhaps, less than human. 
This Article is the first to analyze the operation of the criminal defenses — the doctrines of exculpation — for persons who use serious, and even lethal, force in defense of their pets. By exploring the intersection of criminal defenses and the status of animals, there is much to be learned about the ambiguities in our common law doctrines of exculpation and the status of animals in America. The Article is less an argument for greater animal rights (or increased violence) and more a call to understand how the law’s current treatment of pets and pet owners is discordant with our social values and in need of reassessment.

NSA

'The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism' by Peter Margulies in Fordham Law Review comments
NSA surveillance abroad has spurred fresh debate about extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), which in Article 17 bars “arbitrary or unlawful interference” with individual privacy. The U.S. asserts that the ICCPR does not apply extraterritorially. To support this position, the U.S. relies on the language of Article 2(1) limiting a state’s duty to individuals “within its territory and subject to its jurisdiction.” Many international tribunals and scholars reject the U.S. stance, opting instead for a sweeping view of the ICCPR’s reach that requires a state to “respect” and “ensure” rights within its territory and anywhere it has “effective control” of either territory or persons. President Obama’s speech proclaiming that “all persons should be treated with dignity and respect” and enjoy “legitimate privacy interests in the handling of their personal information” has raised the stakes in the surveillance debate. 
This Article takes a middle way: while the U.S. has an extraterritorial duty to “respect” ICCPR rights, the tailored surveillance engaged in by the U.S. pursuant to judicial authorization and congressional oversight does not violate Article 17’s prohibition on arbitrary interference. Despite differences in tone and emphasis, decisions of the European Court of Human Rights (ECHR) like Weber v. Germany do not diverge significantly from U.S. law, holding that statutes citing national security as a basis for surveillance have adequately informed the public and recognizing that notifying targets of surveillance would undermine government efforts. Where Europe and the U.S. part ways, the complementarity principle provides a measure of deference to the U.S., bolstered by the law of armed conflict and Security Council resolutions that require global cooperation against terrorism. The deference prompted by complementarity allows states to practice what I call procedural pluralism: flexibility in the procedural safeguards the state chooses, as long as those safeguards provide meaningful constraints on government. 
Although U.S. surveillance abroad complies with Article 17 of the ICCPR, reforms beyond those specifically suggested by President Obama would seal the deal. An institutional public advocate to counter government arguments in court would enhance the legitimacy of U.S. surveillance, even more than the panel of lawyers recommended by the President. Minimization of irrelevant communications by non-U.S. persons after less than five years would also reinforce the United States’ case for compliance with Article 17. These reforms, like the candor in President Obama’s speech, would allow the U.S. to pivot from following to leading international law.

10 April 2014

Marmor on Privacy

'What Is the Right to Privacy?' by Andrei Marmor comments
 A philosophical account of the right to privacy should explain what is the distinct interest that the right is there to protect, what it takes to secure it, and what would count as a violation of the right. In this paper I argue that the right to privacy is grounded on people’s interest in having a reasonable measure of control over ways in which they present themselves (and what is theirs) to others; I argue that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways which unjustifiably diminish one's ability to control how one presents herself to others. An account of the right to privacy should also explain, however, what makes it the case that people have wildly differing views about privacy and about what counts as a violation of the right. The paper aims to answer some of those questions as well.
The right to privacy is a curious kind of right. Most people think that we have a general right to privacy. But when you look at the kind of issues that lawyers and philosophers label as concerns about privacy, you see widely differing views about the scope of the right and the kind of cases that fall under its purview. Consequently, it has become difficult to articulate the underlying interest that the right to privacy is there to protect – so much so that some philosophers came to doubt that there is any underlying interest protected by it. According to Judith Thomson, for example, privacy is a cluster of derivative rights, some of them derived from rights to own or use your property, others from the right to your person or your right to decide what to do with your body, and so on. Thomson’s position starts from a sound observation, and I will begin by explaining why. The conclusion I will reach, however, is very different. I will argue that there is a general right to privacy grounded on people’s interest in having a reasonable measure of control over the ways in which they can present themselves (and what is theirs) to others. The right to privacy is important, I will argue, but narrower in scope, and fuzzier in its boundaries, than it is commonly understood.
Marmor argues
The right to privacy is there to protect our interest in having a reasonable measure of control over ways in which we present ourselves to others. The protection of this interest requires the securing of a reasonably predictable environment about the flow of information and the likely consequences of our conduct in the relevant types of contexts. So what would count as a violation of a right to privacy? The answer is that your right to privacy is violated when somebody manipulates, without adequate justification, the relevant environment in ways that significantly diminish your ability to control what aspects of yourself you reveal to others. One typical case is this: you assume, and have good reason to assume, that by doing X you reveal Y to A; that is how things normally work. So you can choose, on the basis of this assumption, whether to X or not. Now somebody would clearly violate your right if he manipulates the relevant environment, without your knowledge, making it the case that by doing X you actually reveal Y not only to A but also to B et al., or that you actually reveal not just Y but also W to A (and/or to B et al.), which means that you no longer have the right kind of control over what aspects of yourself you reveal to others; your choice is undermined in an obvious way. This is the typical case. But there is another type of violation: suppose that the government kindly informs us that from now on it plans to listen to every phone conversation we make and keep a digital recording of it on a giant computer. The government does not want to surprise us, so it duly informs the public that this is how things are going to work from now on.
There is a clear sense that due notice notwithstanding, such a government policy would amount to an unacceptable infringement of our right to privacy. Why is that? Presumably because it diminishes the space in which we can control what we reveal about ourselves to an unacceptably small amount in an important domain of human activity. It just excludes too much from the ordinary means of communication available to us that we can control to a reasonable degree. You can still have a private conversation with your friend in Chicago, the government says, you just have to fly there and meet the friend in person. That seems like an unreasonable restriction of the environment in which we can exercise control over aspects of ourselves that we reveal to others.
Actual cases tend to be more complicated, of course. Suppose, for example, that the government does not actually listen to our phone conversations, only to a random and tiny sample of them. And it does not keep a record of the content of our phone conversations on a giant computer, only the (so-called) metadata. This is what we are told is actually happening in the U.S. these days. Is it a violation of our right to privacy? People have very different responses: some think that it obviously is; others shrug their shoulders, not so sure why should they care. There are two main reasons for these differing attitudes. First, remember that the underlying interest protected by the right to privacy is one of having a reasonable measure of control over ways in which we present ourselves to others. Reasonableness is a rough and vague criterion; people may have different views and different attitudes about how much control they want to have with respect to different aspects of their lives.
Second, and more importantly, in many cases of putative violations of privacy, there is an additional concern about the possibility of abuse of the information obtained. Many people are concerned about information obtained by the government because they do not trust the government; they fear that governments will abuse information they possess, putting people in jeopardy of unwarranted governmental scrutiny or even persecution. Others are more concerned about information gathered by privateorporations. Either way, the concern here is not directly about privacy; it is a concern about abuse of power that might follow from the fact that some particular kind of entity knows too much about you. The concern is that the entity in question may do things that it should not be doing with the information it has, in ways which would be detrimental to your interests. Think about your credit card information: there is nothing wrong with somebody having it, as long as they only charge you for what you owe. You do not want your credit card information in the wrong hands only because you fear that it will be misused.
The concern about possible abuse of the information people might have about us pervades many of the privacy protections we have in law. The stringent protection of medical privacy, for example, is clearly motivated by the fear of abuse: we fear that employers, insurance companies, credit agencies and others may rely on such information to our detriment. If you know that I have cancer, you might not give me a job or, if I already work for you, you may be reluctant to promote me. Most of these concerns, however, are not directly about matters of privacy; the interest they protect is an additional concern that is specific to the kinds of abuse of information that particular entities are suspected of.
Marmor argues that
In practical terms, the right to privacy is a right to a reasonably predictable and secure environment that enables people to have a reasonable measure of control over how they present themselves to others. This is not, however, the idea of a zone of privacy that many lawyers and philosophers have in mind. In fact, I want to argue that there is no such zone, and no good reason to think about privacy in those terms. We do not need to  move in the world protected under an opaque dome, giving us the space to do in it as we please. Thinking about our interest in privacy in terms of a protected zone, determining boundaries that are to be kept concealed from the public eye, is precisely the kind of conception that makes the right to privacy vulnerable to criticism by feminists and other critical theorists. They have long argued that privacy is the enemy of equality, putting women and other vulnerable segments of society at the mercy of the powerful, who can shield patriarchal conduct behind the veil of privacy. Indeed, if you think about privacy as a protecting dome, keeping the public eye from prying into your private conduct, practical concerns about the entrenchment of patriarchal social structures, and perhaps other forms of harmful behavior, is not without merit. The dome conception of privacy suffers from two main flaws, however. First, it misconceives the nature of the underlying interest that privacy is there to protect. Privacy is not there to protect conduct or actions. Our concern with privacy is not about doing things; with very few exceptions, mostly of the sex and nudity kind of stuff, there is hardly anything that is impermissible or wrong to do in public but somehow permissible to do in private. If it is wrong for me to yell at my daughter in public, it is also wrong to yell at her in private. Admittedly, some things that are bad to do might be even worse if done in public. Publicity often adds a further element of humiliation or embarrassment that might be avoided in private. However, it is very rarely the case (again, sex, nudity and stuff like that aside) that the permissibility of an act depends on it being done in private. If there is something you should not do if people know about it, doing it in private would not make it kosher. 
Now, you might think that the issue is not about moral permissibility but perhaps more about propriety; certain forms of behavior may be morally permissible, yet doing them in public is just improper or socially unacceptable or such. No doubt, we can think of many examples. Suppose that one of my acquaintances died recently and that I have always regarded him as rather stupid and insufferably arrogant; it would be totally fine to say that to my wife, in private, but not so nice to express this thought in his public eulogy. Or, to take another example, I presume that you really do not want to see the  couple sitting next to you in the restaurant hitting it off too passionately or, to the contrary, having a nasty row. But these kinds of examples, where we think that certain forms of conduct would be inappropriate in public though unobjectionable in private, are not about protection of privacy. On the contrary; these are cases in which it is the public zone that is in need of some protection, not the private. People have some legitimate expectations about what they want to encounter in public spaces of various kinds. It is the nature of our public spaces and communal interactions that are at stake here, not privacy. 
The second reason for thinking that the dome conception of privacy is misguided pertains to the confusion between an interest in privacy and the much broader interest we have in personal autonomy. There are many areas in life, and the ways we can choose to live it, that should be free from legal interference; that does not make them an issue of privacy. A good case in point is the famous U.S. Supreme Court decision in Griswold v. Connecticut that introduced the idea of a constitutional right to privacy into American jurisprudence. This was a noble decision on the wrong grounds. Griswold concerned the right to use contraceptives. The state of Connecticut sought to make contraceptive use illegal; it prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The Supreme Court decided that the state law violated a constitutional right to privacy. Perhaps the Court thought that anything to do with sex is a matter of privacy, or perhaps it just used the opportunity to elevate the right to privacy to a constitutional level (presumably both). Either way, the main moral issue in Griswold has nothing to do with privacy. People should have a right to use contraceptives because it is an exercise of their right to personal autonomy. People have a right to decide whether and when to have children, just as they have many other rights about decisions and choices that shape the kind of life they want to lead. Surely we agree with the Griswold decision that it is not the business of the law to regulate such matters. But that does not make it an issue of privacy. It is not the business of the law to determine what career I should chose, whom I should marry or what hobbies I should cultivate. It is not the business of the law to decide where I should live, how I spend my vacation or with whom, what books I should read, and so on and so forth. All these issues, and countless others, should be left for people to decide for themselves, for obvious reasons. But none of these choices and decisions, essential for any reasonable exercise of our personal autonomy, has anything to do with privacy. If you equate the right to privacy with the right to personal autonomy, you just admit that there is no particular interest in privacy that is worthy of protection, distinct from the much broader and, admittedly, more important, right to personal autonomy. For reasons that I have tried to articulate above, I think that this would be a mistake. 
A philosophical account of the right to privacy should explain a few things. It should explain what the distinct interest is that the right is there to protect, what it takes to secure it and what would count as a violation of the right. I argued that the interest in question is our interest in having a reasonable measure of control over ways in which we present ourselves to others. I argued that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways that unjustifiably diminish one’s ability to control how one presents oneself to others. 
An account of the right to privacy should also explain, however, what makes it the case that people have such wildly differing views about privacy and about what counts as a violation of the right. I hope that the account offered here gives some answers to those questions as well. For one thing, we should not confuse privacy with autonomy. Secondly, remember that the interest that grounds the right to privacy is rough and vague to begin with because it is an interest in a reasonable amount of control, and people may have reasonable disagreements about what reasonableness requires. The same goes for the reasonableness qualifier concerning the predictability of the environment and what would count as reasonable risks that people should be expected to assume in their daily lives. The right to privacy is just not the kind of right that can be expected to have sharp boundaries. Finally, I argued that many of the practical and legal concerns we face about matters of privacy are driven by the fear of abuse of power, which is an additional concern and one that is specific to the particular kind of entity suspected of potential misuse of information.

Owning the Fab Four

Peter Goldsworthy's Honk If You Are Jesus features misadventures in a plot to "clone" a particular religious entity. Scientists have considered cloning dodos, mammoths,  and other recently dead species. Canadian dentist Michael Zuk more modestly plans to use what is claimed to be John Lennon's wisdom tooth to "clone John Lennon" and then "raise the child as his own".

He is reported as stating "My goal is to own John Lennon’s DNA", characterising the tooth as "basically genetic real estate".

The Daily Mail reports that Zuk purchased the molar for around US$33,000 at an auction and "now hopes to extract enough genetic data from it to recreate the musician".  Oh dear.
'If there is enough DNA to sequence it, it could be basically genetic real estate,' he told television vet Mark Evans, who tracked him down for a Channel 4 programme. 
'My goal is to own John Lennon’s DNA.' Dr Zuk revealed that, once cloning technology is far advanced enough to replicate humans, he would clone Lennon and raise him as his own son. ' 
He could be looked at as my son but I don’t think I would be the one, you know, owning his property, he would have the rights when he was old enough to make a claim,' said Dr Zuk. 
Asked how he could ensure the new Lennon ended up a rockstar, and not a dentist like his own son, Dr Zuk replied: 'He would still be his exact duplicate but you know, hopefully keep him away from drugs and cigarettes, that kind of thing. 
'But you know, guitar lessons wouldn’t hurt anyone right?'
Moving from stupidity into delirium, Evans reportedly
asked Dr Zuk if he believes he would really 'own' John Lennon. ' 
I think I can, because of the laws,' the dentist told him. 
'Depends where you do these things. If it can’t be done in one country you can do these things in another.' 
Brilliant legal analysis there.
Dr Zuk added: 'To have John Lennon's DNA sequence outside of the family protection to me, and full access to it, is worth millions.' 
The dentist said that if the first version of John Lennon Jr didn't quite work our as planned, he might be willing to try cloning the musician more than once. 'Well, if it works once it’s going to work again, right?' he said. 
Mr Zuk has previously admitted that it might be some time before he is able to realise his vision of Lennon mkII.
Quite so.

I was rather hoping that he'd announce plans to clone all four Beatles plus Janis Joplin and perhaps Nellie Melba.

09 April 2014

Vigilance

From the Australian Attorney-General's 'Securing our Freedoms' speech to the Center for Strategic and International Studies in Washington yesterday
The difference between the world on the eve of the Great War, and the world of today, is that there is so much more information, and so much more communication. Terrorists no longer plan their crimes over hushed conversations in coffee shops (although no doubt some still do). The sheer volume of information, and the internationalization of terrorist networks mediated through modern telecommunications, poses huge challenges for national security agencies, in terms of resourcing alone. But intercepting and correctly analysing that traffic is at the heart of the global counterterrorism response. 
Yet, as we are all well aware from the heated public debate in both of our countries, following the Snowden revelations, the question of the extent to which the state should invade the privacy of its citizens by the collection of intelligence will always be a controversial one. Some, usually those with a better informed appreciation of the capabilities and danger of sophisticated modern terrorism, would wish for fewer limitations on intelligence gathering, in the name of public safety. Others, most commonly those who do not bear responsibility for the protection of the public and who have the luxury of approaching the question from a largely philosophical or legalistic perspective, argue that there should be much wider limitations upon the collection of intelligence. However there are few - very few - who take the absolutist position that either there should be no collection of intelligence, or alternatively no limitations on its collection. 
The governments of both of our countries have struggled with this issue in recent months. By the way, it is only liberal-democratic states which would struggle with the issue at all: in the authoritarian systems which beget the terrorism from which we seek to defend our selves, there would be no such argument. But, as Aharon Barak, the former President of the Supreme Court of Israel, famously remarked in 2005, democracies fight terrorism with one arm tied behind their backs. 
Australia has closely watched the evolution of this debate in the United States, and I have studied with care, and during my visit to Washington had many conversations about President Obama’s Presidential Policy Directive of 17 January. Australia welcomes the President’s clarification of American intelligence collection policies embodied in that directive. That is not to say, of course, that Australia would necessarily have resolve these policy choices in the exactly the same way. Every country’s needs and circumstances are peculiar to it. In the post-Snowden environment, one thing which remains just as critical as it has ever been – indeed, even more critical – is that longstanding allies remain committed to their close co- operation in intelligence-gathering and intelligence-sharing. Along with our friends in the United Kingdom, Canada and New Zealand, Australia and the United States are part of the quintet of Western democratic nations which have for many years collaborated intimately in such matters. That collaboration must continue unaffected by the Snowden fall-out and I am confident that it will. 
I am not, in the course of theses remarks, going to attempt to tackle the deep ethical and legal issues at stake concerning intelligence-gathering, let alone to comment on domestic American politics. As a lawyer, I have a bred-in-the-bone respect for due process and civil liberties. But I must confess frankly that, as the minister within the Australian system with responsibility for homeland security, the more intelligence I read, the more conservative I become. The more deeply I come to comprehend the capacity of terrorists to evade surveillance, the more I want to be assured that where our agencies are constrained, the threat to civil liberty is real and not merely theoretical. 
I turn, then, to address some of the policy issues which confront us in the collection and use of intelligence in the cause of defending our populations from terrorism. Those issues all point to the critical importance of Australia and the United States continuing to act as close and collaborative partners, as we always have done in the past. 
The A-G goes on -
Over the decade or more since 9/11, some commentators began to suggest that terrorism no longer posed as significant a threat to national security as it once did. That view is simplistic and frankly wrong. While there is some evidence that we are witnessing a shift in terrorism tactics and techniques from large-scale, September 11 style attacks to ‘lone-actor’, smaller-scale, multi-mode attacks, a change of terrorist tactics if that is what is occurring, is not equivalent to a diminution of the terrorist threat. 
In fact, such a shift in tactics creates significant new difficulties for law enforcement and intelligence agencies in identifying ‘lone-wolves’ who, due to their autonomous activities, are less likely to attract the attention of law enforcement and security agencies during the planning phases of their operations. Such tactics were vividly demonstrated in Boston as well as in the United Kingdom last year. Countries must continue to work together against the global terror threat wherever it is originating, and not simply view threats and vulnerabilities as local versus international. There is much evidence to suggest that so called home-grown or regional threats are influenced, if not directly assisted, by offshore events and groups. 
More than any other recent conflict, Syria - and the terrorist activity and training that are taking place behind the fog of the Syrian civil war - highlight not only that the global threat of terrorism remains undiminished, but that it will continue to evolve and leave a range of legacy issues over the short to medium term. Terrorists will continue to adapt and look to new technologies and changing, volatile global situations. 
As terrorist tactics and operational doctrine evolve, security agencies must develop and maintain effective capabilities in order to mitigate the ongoing threat. 
I am sorry to have to tell you that per capita, Australia is one of the largest sources of foreign war fighters to the Syrian conflict from countries outside the region. On 3 December 2013, two Sydney men were arrested and charged with foreign incursion-related offences as part of a Joint Counter Terrorism Team investigation carried out by Australian police and Australian authorities who continue to monitor recruitment, facilitation and financing of terrorist activity in Syria from Australian sources. 
We also know that Australians are taking up senior leadership roles in the conflict. This shows that as a nation we need to address this issue early, in order to prevent individuals from travelling to participate in that and other foreign conflicts. This is, of course, not a new concern for Australia, nor other countries. Between 1990 and 2010, the Australian Government investigated at least 30 Australians who travelled to conflict areas such as Pakistan and Afghanistan to train or fight with extremists. 19 engaged in activities of security concern in Australia upon their return, and eight were convicted in Australia of terrorism-related offences and sentenced to up to 28 years in prison. 
While not new, the difference is the scale of the problem. The number of Australians participating in the conflict in Syria is higher than we’ve experienced with previous conflicts, with assessments of between 120 and 150 Australians travelling to the greater Syria region to participate in the conflict. In mid-2013, the conflict reached a new milestone as the number of foreign fighters exceeded that of any other Muslim conflict in modern history. The Australian Government is currently considering a number of measures to discourage and deter Australians from travelling to Syria to participate in the Syrian civil war and undertake training. These measures broadly come under four headings:
1. Disruption—stopping individuals from travelling or facilitating the travel of others or otherwise providing support to the conflict; 
2. Response—responding to individuals who have travelled to Syria; 
3. Risk management—managing the risk of those who have been prevented from travelling, or those who have travelled and returned; and 
4. Prevention—reducing the pool of those who might seek to travel or participate in the conflict.
I cannot stress enough that international engagement, intelligence collection and information sharing will continue to be vital to this effort. The Syrian civil war is significant, not only because Syria has now become one of the most important centres of terrorist activity, but also because it reminds us of the pervasiveness, mobility and ambition of modern Islamist terrorism. It is yet another reminder to the democratic world of the intractability of the terrorist threat. This problem will not just go away and peaceful nations must never become complacent or lower their guard against the threat that terrorism posses. They must remain vigilant, committed and cooperative in their joint efforts to defeat it. 
… I believe that Australia and the United States are better placed than at any time to respond to hostile events both predictable and random. Experience from events like September 11 means that our national security structures are more agile, our information sharing mechanisms are more sophisticated and our policy is focused on building resilience and implementing prevention strategies instead of just responding to singular threats or mere responding to events after they have taken place. 
We need to ensure our arrangements, capabilities, legislation and relationships are significantly well developed and maintained to enable us to deal with our future national security environment defined by both identified risks and unidentified contingencies.
Senator Brandis comments
The dangers which I have described are the principle reason why the compromise of our intelligence by Edward Snowden was so profoundly damaging to the interests of both of our countries. The massive damage which Snowden’s disclosures caused was at two levels. Obviously, the revelation of intelligence content was hugely damaging to our interests. But no less concerning – indeed, arguably even more damaging – was what those disclosures potentially revealed about our capability. The problem of ‘going dark’ has been raised in recent years. ‘Going dark’ refers not to the absence of legal authority to conduct interception, but the practical difficulties in obtaining information. 
People who pose national security threats are using disclosed information to update their methods and avoid detection by our agencies. Criminals similarly use the information to avoid detection and prosecution. Capability, which can be decades in development and expect to enjoy a significant operational life expectancy, may be potentially lost over night. Replacing capability after a set-back is not a fast process and attracts substantial cost. The harms of the Snowden disclosures will continue to be felt for an unpredictable time to come. I know some people naively claim that Snowden is a whistleblower. That claim is profoundly wrong. As The Economist’s senior editor Edward Lucas points out in his recent book The Snowden Operation, Snowden meets none of the criteria of a whistleblower. According to a widely-accepted series of tests developed by the Princeton scholar Professor Rahul Sagar, in his book Secrets and Lies, there are three principal criteria which define a whistleblower.
First, a whistleblower must have clear and convincing evidence of abuse. 
Second, releasing the information must not pose a disproportionate threat to public safety. 
Third, the information leaked must be as limited in scope and scale as possible.
 Lucas concluded: “Snowden has failed all three of these criteria”. I agree.
Snowden is not a genuine whistleblower. Nor, despite the best efforts of some of the gullible self-loathing Left, or the anarcho-libertarian Right, to romanticize him, is he any kind of folk hero. He is a traitor. He is a traitor because, by a cold-blooded and calculated act, he attacked your country by significantly damaging its capacity to defend itself from its enemies, and in doing so, he put your citzen’s lives at risk. And, in the course of doing so, he also compromised the national security of America’s closest allies, including Australia’s. 
So I agree Hillary Clinton’s assessment of the consequences of his Snowden’s conduct, when she said recently: “It puts people's lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems.” 
Despite these threats and setbacks, it remains the case that liberal democracies like the US, UK and Australia lead the way in upholding values of individual liberty. 
Significantly, the fundamental principles of governments upholding individual freedoms and ensuring national security do not have to be mutually exclusive. Instead, they should be seen as mutually complimentary – without security there can be no freedom. In his Jefferson Oration in Virginia on 4 July 1963 entitled ‘The Battle for Freedom’, Sir Robert Menzies, the Prime Minister of Australia stated: “American history has reconciled both conceptions. For it has been your glorious destiny, notably in the turbulent years of the twentieth century, to evolve a system in which national power has grown on the basis of a passionate and Jeffersonian belief in individual freedom.” That attitude should always be the starting point in any debate about the perennial question of where, particularly at times of threat and danger, the balance is to be struck between the protection of public safety and the freedom of the individual. And it remains liberal democracies that continue to achieve that balance correctly today. No matter what the era, the most stable, open and transparent countries are liberal democracies, not those under authoritarian rule. 
Many of the threats we face today are variations of known themes—military conflict, terrorism, crime or espionage. But globalisation and technological advancements mean the threats have evolved and that the challenge is now about international security, not just national security. Once more, we can expect them to continue evolving into the future. Most likely in ways we cannot entirely envisage today. So, in the face of ever changing circumstances, how can we make a real difference in shaping our national security environment? First, we must realise that no nation, no matter how large or powerful, can disrupt and prevent threats to global security alone. We must continue to work together and build large partnerships to counter the threat posed by those who would do us harm, whether offline or online. Our strength lies in our alliances and relationships with close and trusted partners. I believe there is no more important partner for Australia than the US and that the US has no readier or better friend than Australia. 
However, the partnership cannot afford to only react to threats. In the current global environment, and post-Snowden period, there is a risk democratic states will play a waiting game. We cannot afford to simply wait for the next world-changing event and then espouse how similar it really was to previous moments – this will only play into the hands of our adversaries, most likely be more expensive in the long term and risk the individual freedoms for which we have worked so hard. The Australian Government is strongly committed to ensuring that Australian national security agencies have the resources they need to continue to achieve the significant outcomes we have experienced in protecting our most fundamental human rights—the right of our people to life, liberty and security of person. 
We must continually work to address the gaps between technological progress and policy. This is true for all work of governments, but particularly so in the area of national security. Just as the technology employed by terrorists, agents of espionage and organised criminals adapts and advances, so too must the capabilities and powers of our law enforcement and security agencies. But this must always be done with the highest regard to ensuring proportionality to the threat and continued testing and maintenance of oversight mechanisms. While our countries have different systems, we both share a commitment to individual freedoms. Progress in this area does not have to diminish our collective security, but can ensure appropriate oversight and smallest necessary encroachment on individual rights.

Victorian Mental Health Act

The Mental Health Act 2014 (Vic) has received assent.

The purposes of the Act are to -
(a) provide a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness; 
(b) provide for the appointment of the chief psychiatrist; 
(c) establish the Mental Health Tribunal; 
(d) establish the Mental Health Complaints Commissioner; 
(e) continue the Victorian Institute of Forensic Mental Health; 
(f) provide for the appointment and functions of community visitors; 
(g) repeal the Mental Health Act 1986
(h) amend the Sentencing Act 1991 and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and 
(i) make consequential and statute law amendments to other Acts. 
The Mental Health Act 1986 (Vic), Mental Health Amendment Regulations 2010, Mental Health Regulations 1998 and Mental Health Regulations 2008 are repealed.

An indication of scope is provided by the list of amended statutes -
  • Accident Compensation Act 1985
  • Children, Youth And Families Act 2005
  • Commission For Children And Young People Act 2012
  • Co-Operative Housing Societies Act 1958
  • Coroners Act 2008
  • Corrections Act 1986
  • Crimes Act 1958
  • Criminal Procedure Act 2009
  • Duties Act 2000
  • Firearms Act 1996
  • Gambling Regulation Act 2003
  • Guardianship And Administration Act 1986
  • Health Services Act 1988
  • Human Services (Complex Needs) Act 2009
  • Information Privacy Act 2000
  • International Transfer Of Prisoners (Victoria) Act 1998
  • Juries Act 2000
  • Land Act 1958
  • Land Tax Act 2005
  • Magistrates' Court Act 1989;
  • Ombudsman Act 1973
  • Payroll Tax Act 2007
  • Property Law Act 1958
  • Public Administration Act 2004
  • Residential Tenancies Act 1997
  •  Serious Sex Offenders (Detention And Supervision) Act 2009
  • Sex Offenders Registration Act 2004
  • Summary Offences Act 1966
  • Supported Residential Services (Private Proprietors) Act 2010
  • Tobacco Act 1987
  • Transport Accident Act 1986
  • Trustee Act 1958
  • Victims Of Crime Assistance Act 1996
  • Workplace Injury Rehabilitation And Compensation Act 2013
  • Disability Act 2006
  • Sentencing Act 1991
  • Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997


From a privacy perspective key sections are -
s 346 - provides that a mental health service provider, its staff, contractors, volunteers and board members must not disclose health information about a consumer. The section allows disclosure in specified circumstances, including where the person to whom the information relates consents to the disclosure, disclosure is required by another health service provider to provide health services, or disclosure is permitted by Information Privacy Act 2000 (Vic) Health Privacy Principle 2.1 or 2.2(a), (f), (g), (h) or (k), or Health Privacy Principle 2.5.
s 347 - provides that a person employed or engaged by a mental health service provider may enter health information into an electronic health information system. That information in the electronic health information system may only be used for certain purposes, including the provision of mental health services. 
s 355 - provides for the conduct of a search under s 354 in a manner which preserves privacy and dignity. The authorised person must inform the individual of certain matters, ask for the individual's cooperation and conduct the least invasive kind of search practicable. When a search is conducted of a individual who is of or under the age of 16 years, there must be a parent present, or if this is not possible, another adult must be present apart from the authorised person conducting the search

NHMRC Homeopathy paper

The National Health & Medical Research Council has released its draft Information Paper: Evidence on the effectiveness of homeopathy for treating health conditions, characterised as providing "a plain language summary of NHMRC's assessment of the evidence on homeopathy".
The purpose of public consultation is to ensure that that the relevant evidence has been identified and appropriately considered in the development of the draft Paper. NHMRC is also seeking feedback about whether the draft Paper is presented in a manner that can be understood by the Australian community. 
The draft paper is accompanied by
  •  Effectiveness of Homeopathy for Clinical Conditions: Evaluation of the Evidence – Overview Report. This is an independent systematic review of the available systematic reviews (an overview) on the effectiveness of homeopathy in treating a variety of clinical conditions in humans. 
  • Effectiveness of Homeopathy for Clinical Conditions: Evaluation of the Evidence – Review of Submitted Literature. Additional evidence was submitted to NHMRC from homeopathy stakeholder groups and members of the public prior to the commencement of the review. A consideration of evidence‑based guidelines and government reports on the use of homeopathy. 
The 'assessment of evidence' documentation (i.e. Overview Report and Review of Submitted Literature) has "been released for background only, to assist interested parties in considering NHMRC's draft Information Paper. The content of these reports is not subject to consultation."

Consistent with the weight of solid research disregarded by homeopathy true believers (some of whom, of course, are found in law schools), the draft paper reports that -
NHMRC concludes that the assessment of the evidence from research in humans does not show that homeopathy is effective for treating the range of health conditions considered. 
There were no health conditions for which there was reliable evidence that homeopathy was effective. No good-quality, well-designed studies with enough participants for a meaningful result reported either that homeopathy caused greater health improvements than a substance with no effect on the health condition (placebo), or that homeopathy caused health improvements equal to those of another treatment.
  • For some health conditions, homeopathy was found to be not more effective than placebo. 
  • For other health conditions, some studies reported that homeopathy was more effective than placebo, or as effective as another treatment, but those studies were not reliable. 
  • For the remaining health conditions it was not possible to make any conclusion about whether homeopathy was effective or not, because there was not enough evidence.
To be confident that the health benefits of homeopathy that were reported in some studies were not just due to chance or the placebo effect, they would need to be confirmed by other large, well-designed studies.
The paper accordingly states -
NHMRC’s interpretation of the assessment of the evidence on the effectiveness of homeopathy 
In line with NHMRC’s function to “advising the community” under section 7(1)(a) of the National Health and Medical Research Council Act 1992 (Cth) and based on the assessment of the evidence of effectiveness of homeopathy NHMRC believes:
  • There is no reliable evidence that homeopathy is effective for treating health conditions. 
  • People who choose homeopathy instead of proven conventional treatment may put their health at risk if safe and evidence based treatments are rejected or delayed in favour of homeopathic treatment. 
  • Homeopathy should not be used to treat health conditions that are serious, or could become serious. 
  • People who are considering whether to use homeopathy should first get advice from a health professional (e.g. GP, specialist, nurse practitioner or pharmacist). Those who use homeopathy should tell their health professionals, and should keep taking any conventional medicines that they have been prescribed. 
In its initial response the Friends of Science in Medicine (of whom I am a member) has written to the NHMRC chair stating -
Government’s response to your report is now all-important. We have observed in other countries the way governments can “water down” very specific recommendations and in recent years there has been little evidence that governments have the courage to stand up to the vested interests of the “alternative” health industry. Our academic, scientific and clinical leadership must emphasise to government the importance of accepting your report unequivocally and the need to continue to address the penetration of pseudoscience into our health care system. Both health outcomes and sustainable cost effectiveness are at stake. 
Appended are comments issued by executive members of FSM speaking as individuals with different areas of expertise. In so doing we have emphasised the need for those universities that have provided credence to homeopathy to cease doing so immediately and champion an evidence based approach to healthcare. We are calling upon the nation’s pharmacists and the private health insurance industry to play a significant role in supporting your message to the community.
It is indeed regrettable that reputable educational institutions continue to embrace homeopathy (e.g. through an Advanced Diploma in Naturopathy) on the basis of market demand. We would, I think, look askance at an Advance Diploma in Faith Healing or Astral Travel or Witchcraft that purported to be the basis for healthcare rather than mere entertainment. Given the lack of a credible evidence base for homeopathy and the nonsensical nature of theorisation (e.g. extreme dilution and water having a memory) it is ethically problematical, if not contrary to Australian trade practices law, for universities and their affiliates to be promoting homeopathy as having any more credibility than consultation with a ouija board

08 April 2014

Jackass

The US Federal Trade Commission has charged [PDF]  the operators of the Jerk.com website with
harvesting personal information from Facebook to create profiles labeling people a “Jerk” or “not a Jerk,” then falsely claiming that consumers could revise their online profiles by paying US$30. 
According to the FTC’s complaint, between 2009 and 2013 the defendants, Jerk, LLC and the operator of the website, John Fanning, created Jerk.com profiles for more than 73 million people, including children
The FTC claims that the defendants violated the Federal Trade Commission Act by
misleading consumers that the content on Jerk.com had been created by other Jerk.com users, when in fact most of it had been harvested from Facebook; and by falsely leading consumers to believe that by paying for a Jerk.com membership, they could access “premium” features that could allow them to change their “Jerk” profile. 
The FTC is seeking an order barring the defendants’ deceptive practices, prohibiting them from using the personal information they improperly obtained, and requiring them to delete the information.

The FTC argues that
Jerk.com profiles often appeared in search engine results when consumers searched for an individual’s name. Upon viewing their photos on Jerk.com, many believed that someone they knew had created their Jerk.com profile. Jerk reinforced this view by representing that users created all the content on Jerk. But in reality, the defendants created the vast majority of the profiles by misusing personal information they improperly obtained through Facebook .... They registered numerous websites with Facebook and then allegedly used Facebook’s application programming interfaces to download the names and photos of millions of Facebook users, which they in turn used to create nearly all the Jerk.com profiles. 
In addition to buttons that allowed users to vote on whether a person was a “Jerk” or not, Jerk profiles included fields in which users could enter personal information about the subject or post comments about them. 
In some cases, the complaint alleges, the profile comment fields subjected people to derisive and abusive comments, such as, “Omg I hate this kid he\’s such a loser,” and, “Nobody in their right mind would love you … not even your parents love [you].” 
The profiles also included millions of photos, including photos of children and photos that consumers claim they had designated on Facebook as private .... Some of them featured intimate family moments, including children bathing and a mother nursing her child. Numerous consumers have complained that photographs and other information about them on Jerk were originally posted on Facebook using controls that enabled users to designate material for dissemination only to a limited group, and that the information was not designated for public viewing …
Unhappy with undesired appearance on the site? Jerk.com indicated that
No one’s profile is ever removed because Jerk is based on searching free open internet, searching databases and it’s not possible to remove things from the Internet. You can however use Jerk to manage your reputation and resolve disputes with people who you are in conflict with. There are also additional paid premium features that are available.
The defendants told consumers they could “use Jerk to manage your reputation and resolve disputes with people who you are in conflict with”.

Importantly, the defendants allegedly
  • charged consumers US$25 to email Jerk.com’s customer service department, and also 
  • falsely told consumers that if they paid US$30 for a website subscription, they could access “premium features,” including the ability to dispute information posted on Jerk.com, and receive fast notifications and special updates. (In many instances consumers who paid the customer service or subscription fee got nothing in return).
  • did not respond to consumers’ requests and did not remove their photos from Jerk’s website. (Numerous consumers were hesitant to provide their credit card information to Jerk and thus had no easy mechanism to contact the company. Some savvy consumers contacted Jerk’s registered agent or web host and requested that respondents delete their photo, or a photo of their child, which was originally posted on Facebook.) 
  •  were unresponsive to law enforcement requests to remove harmful profiles. (In at least one instance, respondents ignored a request from a sheriff’s deputy to remove a Jerk profile that was endangering a 13-year old girl.)
In a nice display of chutzpah Jerk is reported to have responded that
the issue was caused by Facebook's privacy policies. …. 
"We were equally horrified to discover that Facebook is placing personal information from its users including name and photographs in the public domain without requiring any agreement to its terms of service where anyone can acquire it".

Over-Sharing

The Canberra Times reports that Father Alec Stevenson (formerly of the Liberal Catholic Church) has faced bigamy charges - presumably under the Marriage Act 1961 (Cth) s 94 - in the ACT Magistrates Court.
Mr Stevenson is now facing two charges of bigamy for re-marrying twice, once in 1974 and again in 2002, but never formally ending his first union.
The migrant came from New Zealand to start a new life in the 1970s, later becoming a priest with the Liberal Catholic Church ... 
He trained as a formal celebrant, presiding over wedding ceremonies on multiple occasions and learning the legal ins and outs of marriage. 
The priest, now 70, is arguing his actions were an honest or reasonable mistake, which is a defence against the Commonwealth crime of bigamy. ... 
In an earlier police interview, Mr Stevenson claimed the woman had told him she was going to get a divorce. He said he had thought coming to Australia meant his new marriage would not conflict with his nuptials in New Zealand, and assumed there would be appropriate ‘‘checks and balances’’ before his later marriages were recognised. 
"I always acted in what I believed to be good faith", he said. "I believed certain things had been done and certain promises had been kept."
Section 94 of the Commonwealth Act provides -
(1) A person who is married shall not go through a form or ceremony of marriage with any person. 
Penalty: Imprisonment for 5 years. 
(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance, that the person was married when the form or ceremony took place. 
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that: (a) at the time of the alleged offence, the defendant believed that his or her spouse was dead; and (b) the defendant's spouse had been absent from the defendant for such time and in such circumstances as to provide, at the time of the alleged offence, reasonable grounds for presuming that the defendant's spouse was dead. 
(3) For the purposes of subsection (2), proof by a defendant that the defendant's spouse had been continually absent from the defendant for the period of 7 years immediately preceding the date of the alleged offence and that, at the time of the alleged offence, the defendant had no reason to believe that the defendant's spouse had been alive at any time within that period is sufficient proof of the matters referred to in paragraph (2)(b). 
(3A) To avoid doubt, section 9.2 of the Criminal Code (mistake of fact) does not apply in relation to the matters mentioned in subsections (2) and (3). 
(4) A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married. 
Penalty: Imprisonment for 5 years. 
(5) It is not an offence against this section for a person to go through a form or ceremony of marriage with that person's own spouse. 
(6) In a prosecution for an offence against this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence. 
(7) In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married shall not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage. 
(7A) In a prosecution for an offence against this section, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have taken place whether in Australia or elsewhere. 
(8) This section operates to the exclusion of any law of a State or Territory making it an offence: (a) for a person who is married to go through a form or ceremony of marriage with any person; or (b) for a person to go through a form or ceremony of marriage with a person who is married; but does not affect the operation of such a law in relation to acts and things done before the commencement of this Act.
State provisions, typically with the defence that one partner has been absent for seven years (i.e. the presumption of death noted in recent posts), include -
  • Crimes Act 1900 (NSW) s 92
  • Crimes Act 1958 (Vic) s 64
  • Criminal Code (Qld) s 360 
  • Criminal Law Consolidation Act 1935 (SA) s 78
In 2010 the Hobart Mercury reported that Nicholas Trikilis appeared in the Hobart Magistrates Court, charged with bigamy.
Trikilis didn't hide the fact he was a bigamist. After filing fake divorce documents to marry his new bride … in April 2008, Trikilis sent his wedding pictures to the Mercury in July of that year to celebrate the special occasion. The happy snap published on July 8, 2008 showed the couple, family and friends in the Royal Tasmanian Botanical Gardens. Ironically, the overdue divorce to his legal wife Kerri Anne Statton is scheduled to be heard in court tomorrow, but has been postponed until the current legal matter is resolved. 
Trikilis, of Coningham, yesterday admitted forgery, using a forged document, giving defective notice of his divorce and giving false information offences all relating to the bigamy charge. The call-centre operator admitted falsely trying to end his marriage to Ms Statton by signing a document on January 30 stating he was already divorced. Trikilis then attended the Family Court in Hobart and presented the false document to Commonwealth public servant Elizabeth Gray on April 18. He married in a civil ceremony on April 26. Two days later, Trikilis filed the false divorce papers along with his marriage papers. 
After being separated for almost a decade, Ms Statton learned of her separated husband's new wife in late 2008. ... The last bigamy case in Hobart, in 2005, involved disgraced former British policeman Richard Eames who, after leaving his wife of 26 years in Britain, married a Tasmanian woman so he could stay in the country. Before sentencing Eames to 21 months' jail with a 12-month non-parole period, magistrate Ian Matterson said the problem with bigamy was that "you end up with two mothers-in-law".
In the same year the Age reported that an unfortunate woman
had been married for less than a month when a shock discovery - that her husband already had a wife - abruptly ended their honeymoon phase.
On Facebook was photographic proof: wedding pictures of her husband with his other bride. The case came before the Family Court as the second wife, known by the pseudonym Ms Hiu, sought an annulment of her marriage. 
She and her husband, known as Mr Ling, married in a civil ceremony in Melbourne in February. But a friend let slip in March that Mr Ling had married a former girlfriend only weeks before. Mr Ling, 27, had gone overseas on Boxing Day last year.
"He had told me he went to China to visit his family", Ms Hiu told the court. Ms Hiu confronted her husband, who confessed to marrying his former girlfriend in Hong Kong.
The marriage was arranged by their parents, he said, and he felt pressured to follow their wishes. 
In a recent judgment in Melbourne, Justice Nahum Mushin granted Ms Hiu a decree of nullity, finding Mr Ling's marriage in Hong Kong was recognised in Australia. He also considered referring the case to prosecutors. Under the Marriage Act, bigamy attracts up to five years in jail. 
"Not only am I entitled to refer the papers in this matter to the appropriate authorities for consideration of whether to prosecute [Mr Ling] for bigamy but I have a duty to do so."
In 2011 in Mathus & Pews [2011] FamCA 56 Dawe J granted nullity. The husband ostensibly remarried in 1986, three years after meeting his second wife. The marriage certificate incorrectly said that he was divorced; he had married his wife in 1975, separated in 1979 but divorced her in 1995 (i.e. 9 years after the supposed marriage to someone else). Other references to too much sharing appear in NSW Trustee & Guardian; In the Estate of Francis [2014] NSWSC 123; Wyatt & Hsin-Lu [2012] FamCA 313; R v Kennedy [1923] SAStRp 25; Thomas v R [1937] HCA 83; (1937) 59 CLR 279

EU Data Retention Directive

In Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others the European Court of Justice has declared the Data Retention Directive to be invalid, stating that the Directive "entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary".

The decision comes at a time when mandatory data retention (and easy access to that data by a wide range of government and nongovernment bodies)  is again being considered by Australia's national parliament.

Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (aka the Data Retention Directive) is meant to harmonise the law of EU states  concerning the retention of traffic data generated or processed by providers of publicly available electronic communications services or of public communications networks. It accordingly seeks to ensure that the data is available for the purpose of the prevention, investigation, detection and prosecution of serious crime, such as, in particular, organised crime and terrorism. Service providers must retain traffic and location data (and related data necessary to identify the subscriber or user), i.e. metadata. The Directive does not permit the retention of the content of the communication or of information consulted.

Ireland's High Court and Austria's Constitutional Court (the Verfassungsgerichtshof) asked the Court of Justice - the whole of EU body - to examine the Directive's validity, particularly in relation to rights under the Charter of Fundamental Rights of the EU (i.e. the fundamental right to respect for private life and the fundamental right to the protection of personal data).

The referral reflects the High Court's consideration of the dispute between Digital Rights Ireland and the Irish government regarding the legality of Ireland's regime regarding data retention. The Verfassungsgerichtshof is considering several constitutional actions brought by the Kärntner Landesregierung (i.e. the Carinthian provincial government), Mr Seitlinger, Mr Tschohl and 11,128 other applicants seeking annulment of the national provision which transposes the Directive into Austrian law.

The ECJ has declared that the Directive is invalid.

In its judgment it indicates that the data make it possible to
  • know the identity of the person with whom a subscriber or registered user has communicated and by what means, 
  • identify the time of the communication as well as the place from which that communication took place and 
  • know the frequency of the communications of the subscriber or registered user with certain persons during a given period. 
That may provide very precise information on the private lives of the persons whose data is retained, "such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented".

The Court considers that requiring the retention of the data and allowing national agencies to access those data, the Directive "interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data". Moreover the fact that data is retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance.

The Court considered whether such interference with the fundamental rights is justified. In essence, the Directive is disproportionate.

The Court indicates that retention does not "adversely affect the essence of the fundamental rights to respect for private life and to the protection of personal data", given that -
  • the Directive does not permit acquisition of knowledge of the content of the electronic communications as such
  • the Directive provides that service or network providers must respect certain principles of data protection and data security
  • retention of data for the purpose of their possible transmission to the national agencies genuinely satisfies an objective of general interest, namely the fight against serious crime and, ultimately, public security. 
However, the Court indicated that by adopting the Data Retention Directive the EU legislature has "exceeded the limits imposed by compliance with the principle of proportionality". In view of the important role played by the protection of personal data in the light of the fundamental right to respect for private life and the extent and seriousness of the interference with that right caused by the directive, the EU legislature’s discretion is reduced. Review of that discretion must accordingly be strict. The Directive's "wide-ranging and particularly serious interference" with the fundamental rights is insufficiently circumscribed to ensure that the interference is actually limited to what is strictly necessary.

The Court notes [at 72-80] that
the fact remains that the collection and, above all, the retention,  in huge databases, of the large quantities of data generated or processed in connection with most of the everyday electronic communications of citizens of the Union constitute a serious interference with the privacy of those individuals, even if they only establish the conditions allowing retrospective scrutiny of their personal and professional activities. The collection of such data establishes the conditions for surveillance which, although carried out only retrospectively when the data are used, none the less constitutes a permanent threat throughout the data retention period to the right of citizens of the Union to confidentiality in their private lives. The vague feeling of surveillance created raises very acutely the question of the data retention period. 
In that regard, it is first of all necessary to take into account the fact that the effects of that interference are multiplied by the importance acquired in modern societies by electronic means of communication, whether digital mobile networks or the Internet, and their massive and intensive use by a very significant proportion of European citizens in all areas of their private or professional activities. 
The data in question, it must be emphasised once again, are not personal data in the traditional sense of the term, relating to specific information concerning the identity of individuals, but ‘special’ personal data, the use of which may make it possible to create a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity. 
The intensity of that interference is exacerbated by factors which increase the risk that, notwithstanding the obligations imposed by Directive 2006/24 both on the Member States themselves and on providers of electronic communications services, the retained data might be used for unlawful purposes which are potentially detrimental to privacy or, more broadly, fraudulent or even malicious. 
Indeed, the data are not retained by the public authorities themselves, or even under their direct control, but by the providers of electronic communications services themselves, upon which most of the obligations guaranteeing data protection and security are imposed. 
It is true that Directive 2006/24 requires (the Member States to ensure that data are retained in accordance with that directive. It is interesting to note though that it is required to carry this out only in such a way that those data and any other necessary information relating to them ‘can be transmitted upon request to the competent authorities without undue delay’. Directive 2006/24 provides, moreover, that the Member States must ensure that providers of electronic communications services observe minimum principles concerning the protection and security of the data retained. 
However, no provision of Directive 2006/24 lays down the requirement for those service providers themselves to store the data to be retained in the territory of a Member State, under the jurisdiction of a Member State, a fact which considerably increases the risk that such data may be accessible or disclosed in infringement of that legislation. 
That ‘outsourcing’ of data retention admittedly allows the retained data to be distanced from the public authorities of the Member States and thus to be placed beyond their direct grip and any control,  but by that very fact it simultaneously increases the risk of use which is incompatible with the requirements resulting from the right to privacy. 
Directive 2006/24 therefore constitutes, as is clear from the foregoing reasoning, a particularly serious interference with the right to privacy and it is in the light of the requirements resulting from that fundamental right that its validity, and in particular its proportionality, must primarily be examined.
The Court goes on to comment [at 145-152] that
The period of retention which may be considered permissible in light of the principle of proportionality cannot be determined without according some discretion to the legislature. Nevertheless, this does mean that all review of proportionality, albeit difficult, is to be precluded in that respect. 
In that regard, I think that it may be helpful to point out that a human being lives out his existence over a period which is by definition limited where the past, his own history and in the final analysis his memory, and the present, the more or less immediate lived experience, the awareness of what he is in the process of living through, converge.  Although it is difficult to define, a line, which is certainly different for each person, separates the past from the present. What appears unquestionable is the possibility of distinguishing between the perception of present time and the perception of the past. In each of those perceptions, an individual’s awareness of his own life, his ‘private life’ particularly, as a ‘recorded’ life may play a part. Further, there is a difference according to whether that ‘recorded life’ is the one which is perceived as his present or the one which is experienced as his own history. 
I am of the view that those considerations can be applied to the analysis of the proportionality of Article 6 of Directive 2006/24. If the principle of retaining all that personal documentation for a certain period of time is considered lawful, it remains to ask whether it is inevitable, that is to say, necessary, for it to be imposed on individuals over a period which covers not only ‘the present time’ but also ‘historical time’. 
In that regard, and with full awareness of the subjectivity which this entails, it may be considered that a retention period for personal data ‘which is measured in months’ is to be clearly distinguished from a period ‘which is measured in years’. The first period would correspond to that falling within what is perceived as present life and the second to that falling within life perceived as memory. The interference with the right to privacy is, from that perspective, different in each case and the necessity of both types of interference must be capable of being justified. 
Although the necessity of the interference in the dimension of present time seems to be sufficiently justified, I have found no justification for an interference extending to historical time. Expressed more directly, and without denying that there are criminal activities which are prepared well in advance, I have not found, in the various views defending the proportionality of Article 6 of Directive 2006/24, any sufficient justification for not limiting the data retention period to be established by the Member States to less than one year. In other words, and with all the caution that this aspect of the review of proportionality always requires, no argument was able to convince me of the need to extend data retention beyond one year. 
Finally, it must also be pointed out that Directive 2006/24 itself provides an additional argument in the form of the system it contains for extending the maximum period of data retention. Article 12 of that directive allows Member States facing particular circumstances, which in this instance are not defined, to extend the maximum retention period established under Article 6 thereof. However, such an extension is possible only for a limited period, the grounds for introducing it must be stated and it must be notified to the Commission, which has a period of six months to reach a decision on the planned measures, that is to say, to determine whether they are a means of arbitrary discrimination or a disguised restriction of trade between Member States and whether they constitute an obstacle to the functioning of the internal market. 
Even though the Commission may, in accordance with Article 12(2) of Directive 2006/24, reject those measures only on limited grounds, the existence of that system of extension supports my view that the determination, by Article 6 of that directive, of a maximum data retention period of up to two years in the absence of exceptional circumstances is not necessary and that it must be regarded as incompatible with the requirements under Articles 7 and 52(1) of the Charter. 
It follows that Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter in so far as it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period of up to two years
The Court highlighted that -
  • the Directive covers, in a generalised manner, all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. 
  • the Directive fails to provide any objective criterion which would ensure that the governments have access to the data and can use the data only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, may be considered to be sufficiently serious to justify such an interference. 
  • the Directive simply refers in a general manner to ‘serious crime’ as defined by each EU state in its national law. 
  • the Directive does not lay down substantive and procedural conditions under which the governments may have access to and use the data. In particular, access is not made dependent on the prior review by a court or by an independent administrative body. 
  • as concerns the data retention period, the Directive imposes a period of at least six months, without making any distinction between categories of data on the basis of the persons concerned or the possible usefulness of the data in relation to the objective pursued. Furthermore, that period is set at between a minimum of six months and a maximum of 24 months, but the Directive does not state the objective criteria on the basis of which the period of retention must be determined in order to ensure that it is limited to what is strictly necessary. 
  • the Directive does not provide for sufficient safeguards to ensure effective protection of the data against the risk of abuse and against any unlawful access and use of the data. 
  • the Directive does not require that the data be retained within the EU and accordingly does not fully ensure the control of compliance with the requirements of protection and security by an independent authority, as is, however, explicitly required by the Charter. Such a control, carried out on the basis of EU law, is an essential component of the protection of individuals with regard to the processing of personal data.
The Court notes that the Directive permits service providers to have regard to economic considerations when determining the level of security which they apply (particularly as regards the costs of implementing security measures). The Directive does not ensure the irreversible destruction of the data at the end of the retention period.

Missing

Two perspectives on the identification of death, following up recent items on changes to the UK presumption of death regime and a US 'death by drowning' identity fraud incident.

The SMH reports that NSW Deputy State Coroner Sharon Freund has ended an inquest into disappearance of Matthew Shirvington after the 'dead' man was reportedly sighted in Queensland.

Freund reportedly found that Shirvington, missing since June last year, faked his suicide and has been working in the Whitsundays under a fake name.

 His car was found abandoned near Moruya Airport with a suspected suicide note inside, sparking extensive searches by police on the far south coast.

His car was filled with empty beer and vodka bottles and a note saying "I'm sorry".

A school friend spotted him working in a cafe at Airlie Beach during December and "called out to him but Mr Shirvington ran off and never returned to the cafe". Let's hope that he's happier

The Illawarra Mercury meanwhile reports that Cairns-based company, Camper Travel, has agreed to refund a $1,850 deposit for a July 2014 trip that won't take place after one of the intending travellers became a shark attack victim.

The victim's husband contacted the company to cancel the booking. The company initially requested proof of his wife's death, then declined to refund the money.

The husband is reported as commenting
The money is irrelevant, my life will go on without the money. I was just going through things and cancelling all our bookings as a matter of courtesy. The company demanded proof, they wouldn't just accept it was in every newspaper.  So I sent them all the evidence and got an email back saying their policy was that the deposit was non-refundable.
Life's tough for small businesses but from a marketing perspective the company appears to have kicked an own goal in asking the widower to send a copy of one of the numerous  newspaper articles about the death within a few days of the incident.

 The company's managing director is reported as commenting "this was wrong and inappropriate", explaining that the company did not have a policy of asking for proof of death but the case was not "escalated" sufficiently quickly to senior management.

Alms

Noting explicit prohibitions on begging in Australian statutes -

In South Australia the relevant provision is  Summary Offences Act 1953 (SA) s 12 -
Begging alms 
(1) A person who—
(a) begs or gathers alms in a public place; or 
(b) is in a public place for the purpose of begging or gathering alms; or 
(c) goes from house to house begging or gathering alms; or 
(d) causes or encourages a child to beg or gather alms in a public place, or to be in a public place for the purpose of begging or gathering alms; or 
(e) exposes wounds or deformities with the object of obtaining alms,
is guilty of an offence. Maximum penalty: $250. 
In Victoria Summary Offences Act 1966 (Vic) s 49A -
Begging or gathering alms 
(1) A person must not beg or gather alms. Penalty: 12 months imprisonment. 
(2) A person must not cause, procure or encourage a child to beg or gather alms. 
Penalty: 12 months imprisonment. 
In Tasmania Police Offences Act 1935 (Tas) s 8 provides -
Begging, imposition, prostitution, &c
(1) A person shall not –
(a) in a public place beg or expose wounds or deformities, or place himself or herself or otherwise act so as to induce, or attempt to induce, the giving of alms, or instigate or incite a child to do any of those things; 
(1AA) A person who contravenes a provision of subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months.
In Queensland Summary Offences Act 2005 (Qld) s 8 provides -
Begging in a public place 
(1) A person must not —
(a) beg for money or goods in a public place; or
(b) cause, procure or encourage a child to beg for money or goods in a public place; or
(c) solicit donations of money or goods in a public place.
Maximum penalty—10 penalty units or 6 months imprisonment.
In the Northern Territory the Summary Offences Act s 56 provides -
(1) Any person who: 
(c) wanders abroad, or from house to house, or places himself in any public place, street, highway, court, or passage, to beg or gather alms , or causes or procures or encourages any child so to do; 
(e) has on or about his person, without lawful excuse (proof whereof shall lie upon the person charged), any deleterious drug, or any article of disguise; or 
(i) habitually consorts with reputed criminals, shall be guilty of an offence. 
Penalty: 500 dollars or imprisonment for 3 months, or both.
Sectuion 57 of that Act provides -
Offences after finding of guilt under section 56, &c. 
(1) Any person who:
(a) having been found guilty of an offence under section 56 commits any of the offences mentioned in that section; 
(b) solicits, gathers, or collects alms , subscriptions, or contributions under any false pretence, or wanders abroad and endeavours by the exposure of wounds or deformities to obtain or gather alms ; 
(d) pretends to tell fortunes, or uses any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose upon a person; 
(e) has in his custody or possession, without lawful excuse (proof whereof shall be upon the person charged), any picklock, key, crow, jack, bit, or other implement of housebreaking; 
(l) being a suspected person or reputed thief, is in, on or near, with intent to commit any offence triable on information in the Supreme Court or any indictable offence, any river, canal, navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjacent thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent; or 
(p) leaves his wife or child: (i) chargeable, or whereby either of them becomes chargeable, to the public; or (ii) without means of support other than public charity,
 shall be guilty of an offence. 
Penalty: 1,000 dollars, or imprisonment for 6 months, or both.