11 April 2014

Facilitation and Forfeiture

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.
The Victorian Law Reform Commission's The Forfeiture Rule: Report comments
 The forfeiture rule is a common law rule of public policy. It is an expression of the fundamental principle that crime should not pay, and it conveys the community’s strongest disapproval of the act of homicide. The rule disentitles an offender from benefits that, in normal circumstances, they would have received on the deceased person’s death. It is not a punishment but it is a significant consequence that, in most cases, should not be disturbed. 
At common law, the rule is hard and fast. If the rule applies, it applies without regard to the features of the particular homicide. While it rightly applies without exception to the offence of murder, the inflexible application of the rule in every other homicide is out of step with developments in the criminal law. Unlawful killings continue to attract the most severe penalties, but a range of substantive offences and sentencing options has emerged in recognition of the breadth of circumstances in which a death can occur. 
In Australia as well as overseas, concern has been expressed about the harsh effects that the forfeiture rule can have. A driver of a car who causes an accident that kills their partner because of a momentary lapse in concentration is unable to receive anything the partner left them by will. A person who, as part of a suicide pact, assists a terminally ill loved one to commit suicide and then fails in their own suicide attempt, loses the right to the deceased person’s interest in the house they bought together. An innocent child of an offender is unlikely to inherit the property that the offender forfeited upon killing the child’s grandparents. 
The response in some other jurisdictions has been to introduce legislation that either excludes particular homicides from the operation of the rule or gives the courts a discretion to modify the effect of the rule on a case-by-case basis. 
The Commission has concluded that Victoria needs a Forfeiture Act that does both. It has reached this conclusion after consulting with members of the public, community organisations, legal practitioners, judges, academics, and organisations with valuable experience in administering estates. I thank those who contributed for their time and insights.
The Commission's Terms of reference were
to review the common law rule of forfeiture and the circumstances in which it should no longer be appropriate for a person who has killed another person to benefit from that death, including by way of survivorship or as a beneficiary under a will or under intestacy rules. The Commission should consider existing exceptions to the forfeiture rule, such as where a person is found not guilty of a killing because of mental impairment. 
The Commission should make recommendations on the need for legislative or other reform in Victoria to clarify when and/or how the forfeiture rule should be applied, or to replace the common law. 
If legislative reform is recommended, the Commission should propose specific legislative mechanisms for giving effect to these recommendations. The Commission should consider judicial approaches and legislative developments in both Australian and overseas jurisdictions.
The Commission comments
On 29 October 2013, the Attorney-General asked the Victorian Law Reform Commission to review the common law rule of forfeiture. The forfeiture rule prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It is an unwritten rule of public policy enforced by the courts. It has no statutory basis yet overrides the words of a will, entitlements provided in legislation, and legally binding agreements to which the deceased person was a party. 
The rule applies where the court is satisfied, in civil proceedings, that the person was responsible for an unlawful killing. A person acquitted in criminal proceedings, or not prosecuted for a criminal offence at all, may still be precluded from obtaining a benefit. The only exception in Victoria is where the person is not guilty because of mental impairment. Emerging in the late 19th century from common law doctrines that stripped murderers and other felons of their property, the rule remains relevant today.  It conveys the community’s strongest condemnation of the act of unlawfully taking another human life. 
The rule is not applied often, as it is directed to circumstances where the person responsible for the death stands to benefit from the deceased person’s estate or otherwise as a result of their close relationship with the deceased person. However, of the 85 homicides in Victoria last year, 27 (33 per cent) were committed by a family member.  It is likely that in many of these cases the forfeiture rule prevented the person responsible from obtaining a benefit. 
Need for reform 
Although the public policy is sound, the rule requires reform for two reasons: clarity and fairness. The scope of the rule as it applies in Victoria is unclear. There is no doubt that it applies to murder, but the reach of the rule to all forms of unlawful killing, including inadvertent and involuntary acts, is unsettled. Where it does apply, the effect that the rule has on the subsequent distribution of forfeited benefits is uncertain. 
The rule can operate unfairly because it is applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. This is at odds with changes in community attitudes, as reflected in the greater range of criminal offences and sentence options today compared to when the rule was first articulated. 
The application of the forfeiture rule can also have unfair consequences for third parties as it can affect their potential rights to take a forfeited benefit. Those affected may include alternative beneficiaries named in a will, other beneficiaries of the deceased person’s estate, the innocent descendants of the unlawful killer, and any person who co-owns property with the unlawful killer and the deceased person as joint tenants. 
Legislative responses in other jurisdictions 
Responding to similar concerns, other jurisdictions have introduced legislation to replace or augment the operation of the common law rule. New Zealand’s Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) codifies the rule. It sets out the homicides to which the rule applies, excises those to which it does not apply, and specifies its effect on the distribution of the benefits to which the person would have been entitled. 
The United Kingdom has taken a minimalist approach. The Forfeiture Act 1982 (UK) (‘the UK Act’) leaves the scope and effect of the rule at common law intact, but gives the court a discretion to modify its effect if required by the justice of the case. The Australian Capital Territory and New South Wales subsequently introduced legislation that is closely modelled on the UK Act: the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’). 
The key difference between the three statutes is that the NSW Act was amended in 2005 to give the court a discretion to apply the rule to a person who has been found not guilty by reason of mental illness. There have been no recorded applications under the ACT Act to modify the effect of the rule. Five such applications have been made under the NSW Act, and a further three to apply the rule to a person found not guilty of an unlawful killing because of a mental illness. All applications under the NSW Act have been successful. However, most cases concerning the forfeiture rule are not made under the Forfeiture Act but involve applications seeking clarification of the effect of the rule and a determination as to where the offender’s interest is to be redirected. 
Proposed Forfeiture Act 
The Commission released a consultation paper and sought submissions on possible options for reform, based on the approaches illustrated in the NZ, UK, ACT and NSW Acts. A recurring theme in submissions and consultations was that legislative reform is needed, to provide certainty about the scope and effect of the rule and to overcome concerns about the lack of regard to the offender’s moral culpability. 
The Commission concluded that Victoria should introduce a Forfeiture Act that draws both from the reforms in New Zealand that codified the rule in order to create greater certainty and from the reforms in New South Wales and elsewhere that introduced a discretion to ensure greater fairness in the application of the rule. The proposed Forfeiture Act would specify the unlawful killings to which the rule applies and, either directly or by consequential amendment to other legislation, clarify its effect. To overcome concerns about the harsh effects of the rule, certain offences would be excluded from its operation. In addition, the court would have a discretion, on application, to modify the effect of the rule on a case-by-case basis where required by the justice of the case. 
Scope of the rule 
The determining factor for the Commission in defining the scope of the rule for the purposes of the proposed Forfeiture Act is the moral culpability of the person responsible for the unlawful killing. For clarity, the Commission recommends establishing a nexus between the unlawful killings to which the rule applies and murder and other indictable homicide offences under the Crimes Act 1958 (Vic). In the interests of justice, the Commission recommends excluding from the scope of the rule a small number of homicide offences where any perpetrator is likely to be considered to have low moral culpability and the offence does not warrant a bar on the offender taking a benefit from the deceased person. These are: • dangerous driving causing death • manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact • infanticide. 
These offences were identified in submissions and consultations and have been excluded from the rule in other jurisdictions. Motor manslaughter is excluded at common law from the operation of the rule in the United Kingdom, and the NZ Act excludes killings caused by negligent acts or omissions, killings in pursuance of a suicide pact and infanticide. Given the nature of each of these offences and the low moral culpability of the offenders, any application to modify the effect of the rule in the circumstances of these offences would be likely to succeed. The exclusion of these offences will therefore create greater certainty and will reduce costs to the estate resulting from unnecessary litigation. 
Judicial discretion 
Under provisions similar to those in the UK, ACT and NSW Acts, the court in Victoria would have the discretion to modify the effect of the rule as required by the justice of the case. However, unlike the equivalent legislation, the proposed Forfeiture Act would expressly direct the court to consider the moral culpability of the person responsible for the unlawful killing and set out the evidence to which it should have regard. An interested person—who could be the person responsible, the executor or administrator of the deceased person’s estate, or any other person who in the opinion of the court has an interest in the matter—would be able to make an application for a forfeiture modification order. The procedural details of the scheme would be modelled on the UK, ACT and NSW Acts. 
Unlike the NSW Act, however, the proposed Forfeiture Act would not empower the court to extend the scope of the rule beyond the limits of the common law to persons who have been found not guilty by reason of mental impairment. The Commission does not consider that the rule should apply to a person who is not morally culpable for the unlawful killing. 
Effect of the rule 
The deceased person may leave a will that appoints the person who is later responsible for their death as executor. If the deceased person does not leave a will, the court usually appoints a person who is a major beneficiary to administer the estate. The Commission recommends that the proposed Forfeiture Act should clearly preclude a person who is responsible for the death from taking up an appointment either as executor or administrator. This would be achieved by deeming them to have died before the deceased person. As the person’s responsibility for the death may not be established until some time after the death, the Commission also recommends that the court be given an express power to pass over a person who applies for probate or administration where there are reasonable grounds for believing that they committed an offence related to the deceased person’s death. 
The effect of the rule on the entitlements of innocent beneficiaries and third parties would also be clarified. In some circumstances, another beneficiary under a will, or a descendant of an offender, may stand to gain a share of the estate but only if the offender dies before or shortly after the deceased person. Even though they are innocent of any wrongdoing, they are unable to take a share if the offender is alive but precluded by the rule from inheriting. This will be the case even if it is likely that the deceased person would have wanted them to inherit or if they were the deceased person’s closest living relative. To overcome this problem the Commission recommends deeming the offender to have predeceased the deceased person. 
The Commission also recommends that a person who is responsible for the death of a person should be disentitled from making an application for family provision in order to obtain a larger share of the deceased person’s estate. 
If the deceased person and the offender owned property as joint tenants, perhaps in conjunction with one or more other people, the rule has consequences for the beneficiaries of the deceased person and any innocent joint tenants. In normal circumstances, the deceased person’s interest in the property would vest in the surviving joint tenant or tenants in accordance with the law of survivorship. 
Where one surviving joint tenant is responsible for the death of another, courts have taken different approaches to determining the impact of the rule. The favoured approach has been to deem that the person responsible for the death holds the deceased person’s share on constructive trust for the deceased person’s estate. The Commission recommends that the interest of the person responsible for the death should be severed at the time of the death. This is clearer, simpler and fairer. These clarifications would make it easier for an executor or administrator to distribute the deceased person’s estate and reduce the associated legal costs. If the outcome is unfair in any particular circumstances, the court could, on application, modify the effect of the rule.
The report features the following Recommendations
1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the common law rule of forfeiture and provides for the Supreme Court, on application, to modify the effect of the rule if the justice of the case requires it. 
2 The purpose of the Forfeiture Act should be set out in the legislation and include: (a) to reinforce the common law rule of public policy that a person who has unlawfully killed another person cannot acquire a benefit in consequence of the killing and, in so doing, to: (i) manifest the community’s denunciation of unlawful killing (ii) deter persons from unlawfully killing others for financial gain (b) to modify the application of the rule to exclude offences where justice requires (c) to provide for the effect of the rule to be modified if the justice of the case requires it in view of an offender’s moral culpability and responsibility for the offence (d) to codify the effect of the rule on rights of succession. 
3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic). 
4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of: (a) dangerous driving causing death (b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or (c) infanticide. 
5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained. 
6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material, the justice of the case requires the effect of the rule to be modified. 
7 In determining the moral culpability of the offender, the Supreme Court should have regard to: (a) findings of fact by the sentencing judge (b) findings by the Coroner (c) victim impact statements presented at criminal proceedings for the offence (d) submissions on interests of victims (e) the mental state of the offender at the time of the offence, and (f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability. 
8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit. 
9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order. 
10 An ‘interested person’ should mean: (a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf (b) the executor or administrator of a deceased person’s estate, or (c) any other person who in the opinion of the Court has an interest in the matter. 
11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include: (a) gifts to the offender made by the will of the deceased person (b) entitlements on intestacy (c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic) (d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person. 
12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order. 
13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it. 
14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if: (a) the offender is pardoned (b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made. 
15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation—subject to the terms on which the Court revokes the order, and (b) in the case of a variation—subject to modifications made by the varied order. 
16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person (b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit— within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned (c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate (d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with. 
17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period (b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave. 
18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing. 
19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW). 
20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person. 
21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons. 
22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that: (a) where a will contains a devise or bequest to a person who: (i) disclaims it, or (ii) has been precluded by the common law rule of forfeiture from acquiring it the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death. (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule 
23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that: (a) for the purposes of the distribution of an intestate’s residuary estate, a person who: (i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or (ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule. 
24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate. 
25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows: (a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares (b) where there were more than two joint proprietors, as if: (i) the offender holds their interest as a tenant in common (ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship (iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists (iv) as between the innocent joint proprietors, a joint tenancy exists. 
26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately. 
27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.

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.


'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.


'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


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


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".


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