06 June 2014


'Do Animals Go to Heaven? Medieval Philosophers Contemplate Heavenly Human Exceptionalism' by Joyce Salisbury in (2014) Athens Journal of Humanities & Arts comments
Once Christians came to focus on the flesh itself as the immortal vehicle for heaven, they immediately had to confront the animals of this world. Life and growth required people to eat, and most ate animals. Scholastics of the thirteenth century wrestled with this problem as they considered resurrected flesh, wondering if such flesh represented cows and sheep in heaven. Not surprisingly, they decided that the imprint of the human soul was sufficient to miraculously transform the animal meat into real human flesh so that humans, not the animals they ate, populated heaven (Bynum, 1995). Some writers have suggested that this is the way animals get to heaven – by being converted, that is perfected, into human flesh. This is human exceptionalism taken to an extreme.
Death, too, marked a point of intersection between the human body and its animal counterpart. Augustine wrote, ‘All men born of the flesh, are they not also worms?’ (Augustine, 1884). In the end, if the body had not been eaten by beasts, fish, or birds, then worms consumed this flesh that had been promised to enjoy paradise. On resurrection day, how were these consumed bits of human flesh – that as they had been eaten by animals became animal flesh – supposed to be reassembled in order for the saved humans to be given back their original flesh, leaving the animals behind?
Animals, too, had to be resurrected so they could return the human flesh they had eaten. The cathedral at Torcello, near Venice, has an eleventh-century mosaic that shows animals and fish resurrected on the last day and dutifully vomiting up the human body parts they had eaten in their lives. In this incident, we can see that the theology of the resurrection of the flesh opened the way for animal flesh, too, to be resurrected. Then the question became where do the animals go after they were resurrected? The answer to that depended upon what heaven might look like. In this, too, Christians had a difference of opinion.
The first question that plagued thinkers was what animals would do in heaven. Medieval thinkers did not believe animals had any purpose independent of their service to humans. Thus, animals served as food, clothing, and labor for their human masters. Aquinas decided that since humans in heaven would need not clothing, food, nor would they work, there was no need for animals in heaven, so they were excluded (Aquinas, 1952). For medieval thinkers, for animals to exist in any other capacity in heaven, depended on their vision of what heaven might look like. Was it an animal-free city or a garden that might have animals?
Many of the early Christians saw heaven as a great and beautiful city. The ‘Book of Revelation’ in the Bible saw a heavenly city that awaited the end of the world, and Augustine most famously saw the City of God as an ideal Platonic form of a perfect city that awaited the faithful. Other visionaries who claimed to see heaven also echoed this view. For example, a fourth-century text, called ‘St Peter’s Apocalypse’ describes a ‘City of Christ. It was all gold, and twelve walls encircled it, and there were twelve towers inside’ (Gardiner, 1989). If heaven was a city, there was no question about the presence of animals – they weren’t there.
Things became more complicated in visions of heaven as a garden; a perfected return to the garden of Eden. The second-century Apocalypse of St. Peter described a heaven full of flowers, and a ‘great garden, open, full of fair trees and blessed fruits, and of the odor of perfumes’(Gardiner, 1989). The influential third-century account of the martyr Perpetua’s dream of heaven added additional details to the heavenly garden;; ‘I saw an immense garden, and in it a grey-haired man sat in shepherd’s garb;; tall he was, and milking sheep. . . . he gave me a mouthful of the milk he was drawing. . .’(Salisbury, 1997). Here, we have the presence of an animal in heaven.
Heavenly gardens presume the existence of food, decay, and animals. By the fourth century, some people certainly believed that animals would be resurrected on the final days, whether it was to return the body parts they had eaten, or to go to Hell to eat the resurrected bodies of the damned, or to join the saved in a garden of paradise. A second-century bishop, Papias, described an extraordinary vision of a heavenly garden, in which plants – like grapes and grain – would bear miraculous yields, and ‘all animals, feeding on these products of the earth, will become peaceable and friendly to each other, and be completely subject to man’(Bynum, 1995).
Here we can see a distinct split between the prevailing intellectual view of animals – no soul, no heaven -- and a more ambiguous popular view that could not really imagine a heaven that lacked the pleasures of this world, whether a sweet, fragrant fruit tree, or tame animals. In the fifteenth century, we see some famous people burying their beloved pets with hope for the afterlife. For example, one epitaph on the headstone of a little dog named Viola insists that the dog now resides in heaven. One courtier wrote an elegy for the wealthy Isabelle d’Este’s dog, Aura, describing ‘the playful Aura’s ascent to heaven,’ though Aura’s heaven was the stars, where she could join the ‘dog star’(Walker-Meikle, 2012). How could these ideas be reconciled?
Christians who wanted to see their animals in heaven could look to biblical precedent. In the Psalms the poet claims ‘Man and beast thou savest, O Lord’ (Psalm 36:6b), and the New Testament in the letters of Paul, promises that the whole earth will be saved, and Christ would ‘unite all things in Him, things in heaven and things on earth’ (Ephesians 1:9-10) (Linzey & Regan,1990; Linzey & Yamamoto, 1998). Once theologians believed that the flesh itself would have eternal life, the way was opened for animal flesh, too, to join humans in the afterlife. The problem remained to consider exactly how this would work. Animals still didn’t have souls and animals had no reason – no self-identity – so what exactly would be resurrected?
Most people who today think about animals in heaven consider their beloved pets, like Isabella d’Este’s Aura. C.S. Lewis offered an explanation that provided a path for pets to get into heaven while leaving less desirable creatures – tapeworms and mosquitoes – behind. He suggested that pets are transformed by their encounter with humans, they are given personality and individuality, which would extend into the next life. As he wrote, ‘in this way it seems to me possible that certain animals may have an immortality, not in themselves, but in the immortality of their masters’(Linzey & Regan, 1990). This preserves the striking anthropocentric view that kept animals out of heaven in the first place. Animals have no independent value in this world and no access to the next unless good pets can slide in on the coattails of their masters.
This was not the end of the story. Remarkably, there was a less anthropocentric vision that stayed on the margins of medieval thought. Some people saw God’s creation as a unity, a great web in which all are linked together in this world, and transformed into the next. In this view, the question is not whether animals would go to heaven, but whether a whole environmental web of creation might be risen to an afterlife. As St. Irenaeus wrote, on the last day, Jesus would ‘sum up all things in Himself’ (Linzey & Regan, 1990). Susan Crane (2013), in her recent book, Animal Encounters analyzes medieval texts that show this kind of interconnectedness. She sees Irish hagiographers who see the world horizontally, in which all are ‘intricately enmeshed in dynamic environments stretching outward and upward beyond our ken’ (Crane, 2013). She even sees connections within the bestiaries, those texts that organize the animal world in ways that make sense to humans. Here, animals and humans are joined in a web of creation that links creature to creature (Crane, 2013). In this vision, heaven is a perfected earth, recreating the biblical vision in which ‘The wolf shall dwell with the lamb, and the leopard shall lie down with the kid, and the calf and the lion and the fatling together, and a little child shall lead them.’ All will be vegetarians, for the lion will ‘eat straw like the ox,’ and children will play with previously poisonous snakes. (Isaiah 11:6- 8) Presumably, in this blissful paradise, even vegetarian bedbugs will sleep in harmony with humans.

05 June 2014


'Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle' by Adam D. Thierer in (2013) 14(1) Minnesota Journal of Law, Science & Technology comments that
 Fear is an extremely powerful motivating force, especially in public policy debates where it is used in an attempt to sway opinion or bolster the case for action. Often, this action involves preemptive regulation based on false assumptions and evidence. Such fears are frequently on display in the Internet policy arena and take the form of full-blown 'technopanic,' or real-world manifestations of this illogical fear. While it’s true that cyberspace has its fair share of troublemakers, there is no evidence that the Internet is leading to greater problems for society. 
This paper considers the structure of fear appeal arguments in technology policy debates and then outlines how those arguments can be deconstructed and refuted in both cultural and economic contexts. Several examples of fear appeal arguments are offered with a particular focus on online child safety, digital privacy, and cybersecurity. The various factors contributing to 'fear cycles' in these policy areas are documented. 
To the extent that these concerns are valid, they are best addressed by ongoing societal learning, experimentation, resiliency, and coping strategies rather than by regulation. If steps must be taken to address these concerns, education and empowerment-based solutions represent superior approaches to dealing with them compared to a precautionary principle approach, which would limit beneficial learning opportunities and retard technological progress. 
Thierer offers a four-part framework for analysing risks associated with new technological developments
A. Defining the Problem
The first step involves defining the problem to be addressed and determining whether harm or market failure exists. These are two separate inquires. Defining the problem is sometimes easier said than done. What is it that we are trying to accomplish?
It is vital that “harm” or “market failure” not be too casually defined. Harm is a particular nebulous concept as it pertains to online safety and digital privacy debates where conjectural theories abound. Some cultural critics insist that provocative media content “harms” us or our kids. Many moral panics have come and gone through the years as critics looked to restrict speech or expression they found objectionable. In cases such as these, “harm” is very much an eye-of-the-beholder issue. It is important to keep in mind that no matter how objectionable some media content or online speech may be, none of it poses a direct threat to adults or children.
Likewise, some privacy advocates claim that advertising is inherently “manipulative” or that more targeted forms of marketing and advertising are “creepy” and should be prohibited. “But creating new privacy rights cannot be justified simply because people feel vague unease,” notes Solveig Singleton, formerly of the Cato Institute. If harm in this context is reduced to “creepiness” or even “annoyance” and “unwanted solicitations” as some advocate, it raises the question whether the commercial Internet as we know it can continue to exist. Such an amorphous standard leaves much to the imagination and opens the door to creative theories of harm, which are sure to be exploited. In such a regime, harm becomes highly conjectural instead of concrete. This makes credible cost-benefit analysis virtually impossible since the debate becomes purely about emotion instead of anything empirical.
Turning to economic considerations, accusations of consumer “harm” are often breezily tossed about by many policymakers and regulatory advocates without any reference to actual evidence proving that consumer welfare has been negatively impacted. “Market failure” claims are also rampant even though many critics are sometimes guilty of adopting a simplistic “big is bad” mentality. Regardless, a high bar must be established before steps are taken to regulate information and digital technologies based upon market failure allegations. 
B. Consider Legal and Economic Constraints 
The second step is to identify constitutional constraints and conduct cost-benefit analysis of government regulation.
If harm or market failure can be demonstrated, the costs associated with government action must be considered. Even where there is harm and a market failure, it does not necessarily follow that government can effectively address the problem. Proposed rules should always be subjected to rigorous cost-benefit analysis. Regulation is not a costless exercise. All government action entails tradeoffs, both economic and social. Of course, not all legal solutions entail the same degree of cost or complexity as direct regulatory approaches. Can the problem be dealt with through traditional common law methods? Can contracts, property rights, antifraud statutes, or anti-harassment standards help? Again, consider privacy harms. Instead of trying to implement cumbersome, top-down privacy directives based upon amorphous assertions of privacy “rights,” the Federal Trade Commission (FTC) should hold companies to the promises or claims they make when it comes to the personal information they collect and what they do with it. The agency has already brought and settled many privacy and data security cases involving its authority under Section 5 of the Federal Trade Commission Act to police “unfair and deceptive practices.” Recently the FTC has brought enforcement actions against Google and Facebook. Both companies agreed through a consent decree to numerous privacy policy changes, and they must also undergo privacy audits for the next 20 years. Again, no new law was needed to accomplish this. The FTC’s plenary authority was more than sufficient.
Of course, information technology is, by definition, tied up with the production and dissemination of speech. Consequently, First Amendment values may be implicated and limit government action in many cases. 
C. Consider Alternative, Less Restrictive Approaches 
The third step involves an assessment of the effectiveness of alternative approaches to addressing the perceived problem.
Because preemptive, prophylactic regulation of information technology can be costly, complicated, and overly constraining, it is often wise to consider alternative, less restrictive approaches. Education and awareness-building strategies can be particularly effective, as well as being entirely constitutional. Empowerment-based strategies are also useful. As noted previously, these strategies can help build resiliency and ensure proper assimilation of new technologies into society. If regulation is still deemed necessary, transparency and disclosure policies should generally trump restrictive rules. For example, after concerns were raised about wireless “bill shock”—abnormally high phone bills resulting from excessive texting or data usage—FCC regulators hinted that regulation may be needed to protect consumers. Eventually, the wireless industry devised a plan to offer their customers real-time alerts before they go over monthly text or data allotments. Although these concessions weren’t entirely voluntary, this transparency-focused result is nonetheless superior to cumbersome rate regulation or billing micromanagement by regulatory officials. Many wireless operators already offered text alerts to their customers before the new notification guidelines were adopted, but the additional transparency more fully empowers consumers. Transparency and disclosure are also the superior options for most online safety and privacy concerns. Voluntary media content ratings and labels for movies, music, video games, and smartphone apps have given parents and others more information to make determinations about the appropriateness of content they may want to consume. Regarding privacy, consumers are better served when they are informed about online privacy and data collection policies of the sites they visit and the devices they utilize.
D. Evaluate Actual Outcomes 
Finally, if and when regulatory solutions are pursued, it is vital that actual outcomes be regularly evaluated and, to the extent feasible, results be measured. To the extent regulatory policies are deemed necessary, they should sunset on a regular basis unless policymakers can justify their continued existence. Moreover, even if regulation is necessary in the short-term, resiliency and adaptation strategies may emerge or become more evident over time.

04 June 2014

Refugee Data Breach

In SZTXY v Minister for Immigration & Anor and SZTXZ v Minister for Immigration & Anor and SZTZJ v Minister for Immigration & Anor [2014] FCCA 841 the Federal Circuit Court has rejected an application for interlocutory relief following the Department of Immigration & Border Protection data breach noted here, here and here.

The relief sought by the applicants was in the form of an injunction restraining the Immigration Minister from removing SZTXY and SZTXZ from Australia pending the determination of final relief in proceedings brought earlier in the year as a result of the breach.

The applicants instituted proceedings in the Federal Circuit Court on 4 March 2014. Driver J states that
Other applications followed. The initial applications were not prepared with the assistance of legal advice and it was difficult to discern what the applicants were seeking from the Court. Subsequently, a group of applicants, whose applications had been allocated to my docket, obtained legal representation. Amended applications were filed between 28 March 2014 and 7 April 2014. 
He notes that
In February this year, it emerged that personal information concerning some 10,000 people held in immigration detention in Australia had inadvertently been made available on the internet. The revelation caused understandable concern and those affected received letters from the Secretary of the Minister’s Department about the circumstances. The Secretary’s letter contained what purports to be an undertaking that the Department would assess any implications for each affected person personally as part of its “normal processes”. Those affected were also invited by the letter to raise any concerns they might have during “those processes”.
Driver J goes on to state that
Counsel for the applicants submitted that the Secretary’s letter [to individuals whose data was exposed by the breach] amounted to a representation that some new process common to all of the detainees affected by the information disclosure would be applied to them separately from any other process that might be applicable to them should they make (or have made) a claim for protection in Australia. I cannot accept that submission in the light of the available evidence. That evidence establishes to my satisfaction that what the Secretary intended to convey was an undertaking that the circumstances of the release of information would be taken into account in relation to any assessment of protection claims by the affected detainees or any assessment that the Minister might undertake of his own volition, for example for the purposes of s.195A. In the case of SZTXY, the representation was misleading in its reference to the “usual processes” of the Department. It was misleading because since August 2012 there has been no process in place for the assessment of protection claims by UMAs in Australia. It appears from the affidavit of Ms Gillam [of the Dept] that a process is being developed to consider claims in that class. The Minister, through his counsel, has represented to the Court that the process will be subject to the requirements of procedural fairness and that it will be conducted according to law. The rule of law of course depends upon the supervisory jurisdiction of the courts. I proceed on the basis that the protection status determination process referred to by Ms Gillam at [8] of her affidavit will be subject to the supervisory jurisdiction of this Court under s.476 of the Migration Act, consistently with the decisions of the High Court in M61 and the Full Federal Court in SZQDZ. 
I conclude that the concerns of SZTXY are unfounded. He will not be removed from Australia until any claims for protection he wishes to make are considered pursuant to an assessment process conducted lawfully. The implications of the release of his personal information will be taken into account in that process. In the circumstances, an arguable case for the relief currently sought by him has not been established.
In relation to SZTZJ the Department argued that
the applicant arrived in Australia as an illegal maritime arrival. 
The applicant made protection claims which were assessed through a non-statutory process for the purpose of informing any consideration of the exercise of the Minister’s powers under s.46A of the Migration Act 1958. 
These processes ultimately resulted in the applicant not being referred to the Minister for consideration of the exercise of his powers under s.46A. 
Therefore, in relation to this applicant, she has been the subject of processes in which her protection claims were considered but has now been affected by the disclosure. In such a circumstance, the Department will be writing to her inviting her to provide information that she would like to have considered by the Department regarding the disclosure. Should the applicant provide such information in accordance with the invitation, this will be considered as to whether the information raises any new, substantive and credible information relevant to Australia’s non-refoulement obligations. In the event that new and credible protection related information is raised, the applicant’s case will be referred for the Minister’s consideration under the Minister’s intervention powers under the Migration Act.  
If the applicant provides information in accordance with this invitation the applicant will not be considered available for removal until this consideration occurs. 
Driver J states that
I accept in the case of SZTZJ that there are established processes in place in the Minister’s Department for dealing with any fresh claim for protection that she may wish to make. I also accept that that further assessment process would have to be conducted lawfully before she could be removed from Australia consistently with s.198 of the Migration Act. Any fresh claim made by her on the basis on the release of her personal information would be a sur place claim not previously made and the circumstances would warrant a fresh consideration of her situation. SZTZJ could if necessary seek relief in this Court in relation to that process, consistently with the decision in M61. I conclude that the concerns of SZTZJ are unfounded and she has not established an arguable case for the relief she seeks.
In relation to in relation to SZTXZ the Department indicated that the applicant
has been the subject of processes in which his protection claims were considered but has now been affected by the disclosure. In such a circumstance, the Department will be writing to him inviting him to provide information that he would like to have considered by the Department regarding the disclosure. Should the applicant provide such information in accordance with the invitation, this will be considered as to whether the information raises any new, substantive and credible information relevant to Australia’s non-refoulement obligations. In the event that new and credible protection related information is raise, the applicant’s case will be referred for the Minister’s consideration under the Minister’s intervention powers under the Migration Act. 
If the applicant provides information in accordance with this invitation the applicant will not be considered available for removal until this consideration occurs.
Driver J states that
But for the new circumstances resulting from the unauthorised release of his personal information, SZTXZ would have exhausted the statutory processes for the consideration of his protection claims. However, as is conceded by Ms Gillam, the disclosure of his personal information is a new circumstance supporting a further consideration of his claims. The Minister could consider his circumstances either pursuant to s.417 of s.48B of the Migration Act. The Minister’s powers under those sections are personal and non compellable and are excluded from the jurisdiction of this Court. He could, however, if necessary seek relief in relation to those processes in the High Court of Australia in its original jurisdiction. 
I conclude that the concerns of SZTXZ are unfounded and that he has not established an arguable case for the relief he seeks. That is sufficient to dispose of these proceedings, but for completeness, I will consider alternative relief available to the applicants.
In directly addressing privacy issues Driver J goes on to state that
 If the applicants are for some reason mistrustful of the processes discussed above, they have an alternative remedy available to them. The circumstances of the release of personal information of these applicants points to a possible breach of information privacy principle 11 of the information privacy principles set out at s.14 of the Privacy Act 1988 (Cth). Under s.36 of the Privacy Act, they are entitled to complain to the Privacy Commissioner (Commissioner) about the apparent breach. . . . .
This Court has jurisdiction under s.55A of the Privacy Act to enforce a determination made by the Commissioner. If any of these applicants wished to make a complaint to the Commissioner about the release of their personal information I see no reason in principle why such a complaint, and the investigation of it by the Commissioner, could not extend to the consequences of the release for the personal safety of the applicants in their countries of origin.
He concludes
None of these three applicants has established an arguable case for the relief sought in their amended applications. I will order that the applications be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules. The subpoenas issued will be set aside. The remaining applications the subject of these proceedings should be dealt with consistently with this judgment.
In SZTKJ v Minister for Immigration & Anor [2014] FCCA 997 Manousaridis J comments that
the applicant, in written submissions filed after the hearing, submitted that the Minister breached the applicant’s privacy by releasing his name and other details on the departmental website as part of the January 2014 Detention Statistics. This does not relate to any ground stated in the application, and cannot have any relevance to whether the Tribunal committed any jurisdictional error in affirming the delegate’s decision not to grant the applicant a protection visa.
In 1405532 [2014] RRTA 387 the Refugee Review Tribunal stated that
[1405532's] name was published by the Department on their website, as part of the January 2014 Detention Statistics for a period of several days before [date] February 2014.  
It is the applicant’s claim that he will face persecution in Nepal from his family and because his privacy has been breached as his name was published on the Department website in the manner outlined above. When asked to describe how he would be harmed because of this he indicated that his extended family would know of his detention and that would cause him shame and serious harm. The Tribunal questioned how this difficulty would amount to serious or significant harm. While the Tribunal accepts he may be questioned about his detention by his extended family on his return to Nepal and he may be put down by them, it does not accept that such questioning amounts to serious harm, as it is not analogous to the examples outlined in s.91R(2) of the Migration Act or the definition of significant harm as outlined in s.5(1) and s.36(2)(aa) of the Migration Act.

Unpaid Fines

Victoria's Sentencing Advisory Council has released a 432 page report The Imposition and Enforcement of Court Fines and Infringement Penalties in Victoria [PDF].

The report argues that round 40% of Victorians and 36% of companies that receive court fines fail to pay them. Over 700,000 penalties relating to  infringement notices issued by agencies such as police and local governments each year remain unpaid. Around 6 million infringement notices were issued in 2012–13. The amount of unpaid penalties is estimated as over $400 million per year.

An unrelated 2013 state Ombudsman Office report on its Own motion investigation into unenforced warrants [PDF] was noted here.

The Sentencing Council concludes that "the current system is fragmented and creates avoidable obstacles to payment and enforcement". It recommends a range of new sanctions to deal with the large number of unpaid and unenforced fines and infringement penalties under the Sentencing Act 1991 (Vic) and Infringements Act 2006 (Vic).

The Council examined the use and enforcement of fines and infringements according to different types of recipient, including those who
  • 'shouldn’t pay' (e.g. people who have a valid defence to an infringement notice), 
  • 'can’t pay' (e.g. people experiencing financial hardship), 
  • 'will pay',
  • 'might pay',
  • 'won’t pay' (e.g. people or companies who can pay but deliberately avoid payment and enforcement). 
It calls for stronger enforcement options for people and companies who can afford to pay but refuse. The report calls for a wider range of options for payment and discharge by disadvantaged people, aimed at allowing their early exit from the system, and preventing the most vulnerable Victorians from having to go to court.

The Council indicates that the three main principles for an effective system of fines and penalties are fairness, compliance, and credibility.

Those principles are reflected in 49 recommendations, including
  • creating a centralised body to case manage and enforce fine and penalty recipients; 
  • harmonising enforcement sanctions and extending a broader range of sanctions for the enforcement of court fines, including licence suspension, detention and sale of vehicles, seizure and sale of personal property, attachment of earnings and debts, and registration of a charge over, and sale of, real estate; 
  • consulting with the Commonwealth Government on overseas travel restrictions for people with outstanding default warrants; 
  •  taking outstanding warrants into account during the taxi driver/operator accreditation process; 
  • introducing a scheme to reduce the large volume of tolling infringement penalties accrued by offenders who won’t pay, by taking them to court earlier; 
  • making directors personally liable for payment of infringement penalties or court fines incurred by a corporation; 
  • consulting with the Commonwealth Government on the collection of fines and penalties by the Australian Tax Office; 
  • improving options for vulnerable and disadvantaged people, such as work and development permits (allowing eligible people to complete education, treatment, or training programs as a way of discharging fines and penalties), amending the definition of ‘special circumstances’ for those people who ‘shouldn’t pay’, and providing a reduced infringement penalty for those people experiencing financial hardship who ‘can’t pay’ and are entitled to government concessions; 
  • reducing infringement penalty amounts for children to 50% of the adult amount; and 
  • strengthening safeguards so that imprisonment is a penalty of ‘last resort’ for failure to pay fines, reserved for those people who can, but refuse, to pay.
The report notes that the Sentencing and Infringements statutes provide for separate systems of enforcement that overlap in a number of ways (e.g. if a person elects to have the infringement matter determined in open court, the matter will be treated the same as if it had commenced in court).
The fragmented nature of the two enforcement systems, as they currently apply, is highlighted where a person has both court fines and infringement penalties. In these circumstances, methods and locations for payment, availability of non-monetary options for discharge, obligations and powers of the Sheriff, court powers on default, court powers on breach of an order made on default, and rights of appeal, all differ between court fines and infringement penalties. Where possible, practical, and preferable to do so, the recommendations  have sought to harmonise the two systems.
This report presents aggregated data from sources such as
  • the Magistrates’ Court Courtlink system and associated Cognos data extracts (court fine imposition, infringement penalty enforcement data, case initiation data, court fine payment data, warrant enforcement, community work for fine default, and imprisonment-in-lieu data); 
  • the Department of Justice’s Higher Courts’ Conviction Returns Database (court fine imposition for the County and Supreme Courts of Victoria); 
  • the Children’s Court Courtlink system and associated Cognos data extracts (court fine imposition, case initiation data, court fine payment data, warrant enforcement, and enforcement hearing sanctions data); 
  • the Children’s Court Children’s and Young Persons Infringement Notice System (‘CAYPINS’) Courtlink system and associated Cognos data extracts (CAYPINS infringement imposition, case initiation data, CAYPINS payment data, warrant enforcement, and enforcement hearing sanctions data); 
  • the Infringement Management and Enforcement Services (IMES) (infringement penalty enforcement data and internal review data); 
  • Corrections Victoria (community work order data, community work permit data, and receptions into prison data); 
  • the Australian Bureau of Statistics (CPI data, interstate court comparisons data, and population data); 
  • the Commonwealth Department of Social Services (concession cards and income support payment data); and 
  • the Council’s own reoffending database. 
The report is divided into 10 chapters:
1) Introduction 
2) Use of court fines 
3) Use of infringement penalties 
4) Harmonising payment and management of court fines and infringement penalties 
5) Enforcement by the administrative body 
6) Enforcement by the court 
7) Conversion of fines and penalties into imprisonment 
8) Infringement matters heard in open court, proportionality, and internal review 
9) Tolling infringement offences 
10) Imposition and enforcement of court fines and infringement penalties against children.


'What’s So Shameful about Shameful Revelations?' by Joanna Firth in (2013) 1 LEAP comments [PDF] that
Jonathan Wolff, amongst others, has criticised luck egalitarian theories of distributive justice because these theories require untalented citizens to reveal their lack of talent to the state. He believes that, even in an ideal egalitarian society, this would cause citizens to feel ashamed. Having to reveal facts that one considers shameful undermines one’s self-respect. The state should treat its citizens with respect and, thus, it ought not to treat them in ways that undermine their self-respect. In this paper, I argue that this shameful revelations allegation is false. In an ideal egalitarian society, people would believe that a person’s natural marketable talents are an inappropriate basis on which to measure her value. Emotions typically have a cognitive structure: one of the constitutive components of each particular emotion is a particular type of belief. Shame is felt when one believes that one does not possess some quality that one believes one needs to have in order to have value. So, since citizens of an ideal egalitarian society will not believe that a person’s value depends on her natural marketable talents, they will not feel ashamed of being untalented. This is good news. Luck egalitarian theories require citizens to reveal their untalentedness because it is necessary in order to achieve fairness in the distribution of resources and/or welfare. Wolff’s allegation therefore implies that fairness and respect will conflict in an ideal egalitarian society. But, if I am correct, we may be able to achieve both these values.
Firth argues that
All egalitarians ought to take both fairness and respect seriously. Egalitarian theories of distributive justice should, therefore, be sensitive to both these values. In ‘Fairness, Respect and the Egalitarian Ethos’ Jonathan Wolff argues that even in an ideal egalitarian society, that is, a society where the inhabitants embrace and are guided by the underlying principles that inform the way that society is governed, these two values are very likely to conflict (Wolff 1998). Many prominent recent theories of distributive justice have been focused solely on fairness, and his argument is intended as a criticism of them: if, even at the ideal level, we must sacrifice respect to achieve full fairness, we shouldn’t seek full fairness and we should spend less time theorising about it. Wolff’s claim that fairness and respect are very likely to conflict has considerable prima facie plausibility and is well known. Further it has received explicit endorsement by some political theorists (e. g. Hinton 2001: 73; Lang 2009: 329) and is implicit in “What is the Point of Equality?”, Elizabeth Anderson’s famous polemic against fairness-focused theories (Anderson 1999). Wolff’s claim, however, is incorrect and in this paper I shall demonstrate why. But, before I do so, it is necessary to briefly rehearse Wolff’s argument. 
The prominent fairness-orientated theories Wolff has in mind are those that have come to be known as ‘luck egalitarian’ theories. Wolff accepts the basic insight of luck egalitarianism (and its conception of fairness): if a person is responsible for having a less than equal share of resources and/or welfare, then this inequality is not unfair (Wolff 1998: 97). To illustrate the insight, consider Will Kymlicka’s well-known depiction of it: the tennis player and the gardener.  Two single people of equal natural ability are each given a plot of land with equal potential. One person, the gardener, works hard and cultivates her land. The other person, the tennis player, idles around all day playing tennis. As a result, the gardener becomes rich and the tennis player becomes poor (Kymlicka 2002: 72-3). The luck egalitarian view is that if we required the gardener to transfer some of her wealth to the tennis player, it would be unfair because the tennis player is responsible for his poverty and the gardener for her wealth. Conversely, luck egalitarians hold that inequalities in resources and/or welfare that people are not responsible for, that is, inequalities that arise out of brute luck, are unfair. So, for example, if I were born without legs and, in my society, being legless gives one the additional disadvantage of it being more difficult to acquire further resources and/or welfare, this would be unfair. Additionally, luck egalitarianism would, other things equal, require that I be compensated by the state to mitigate for my disadvantage. 
In order to achieve a fair distribution, a luck egalitarian state would, therefore, need to collect information about how far each citizen is responsible for having the level of resources or welfare that they do. One piece of information that would be needed to find this out is the level of marketable natural talents (“talents” for short) that each individual has.6 This kind of data collection raises issues relating to privacy. However, even leaving these aside, Wolff argues that this type of data collection makes luck egalitarianism problematic because it undermines respect. He says:
Consider... the case of someone who is unemployed at a time of low unemployment and no particular shortage of jobs. To qualify for [state] benefits this person will have to show that he or she does not have the opportunities that others have. But, by hypothesis, ...the failure, if there is one, is... the lack of talent or aptitude for the jobs that are available. To press a claim, then, one is required not merely to admit but to make out a convincing case that one is a failure, unable to gain employment even when there is no difficulty for others. But think how it must feel —how demeaning it must be— to have to admit to oneself and then convince others that one has not been able to secure a job, despite one’s best efforts, at a time when others appear to obtain employment with ease (Wolff 1998: 114-115).
Wolff alleges that even in an ideal egalitarian society, having to reveal to oneself and the state that one is untalented would cause citizens to feel ashamed. Following Wolff, I shall call this the ‘shameful revelations’ allegation (Wolff 1998: 109). Causing citizens to feel ashamed in the process of granting them their distributive entitlements is not compatible with treating citizens with respect. So, if the shameful revelations allegation were true, then, there would indeed be a conflict between fairness and respect. In response to this  conflict, Wolff proposes that even at an ideal level, we have reason to prefer a system of unconditional state benefits over a luck egalitarian system. 
Wolff makes several other (related) arguments in the paper. For example, he discusses two different ways in which having to reveal one’s untalentedness might undermine one’s self-respect in a non-ideal luck egalitarian society, notes some problems with using two person examples and points to the dangers of solely doing ideal theory. However, I put these to one side and focus on the following version of the shameful revelations allegation: even in an ideal egalitarian society, having to reveal to the state that one is untalented would cause citizens to feel ashamed. 
A luck egalitarian could respond to the shameful revelations allegation by simply accommodating its claim. She might say, without much ado, that, of course, luck egalitarianism should be limited in its application by other values (like respect) and no one ever thought otherwise (Lippert-Rasmussen 2009). There are two versions of this view: that luck egalitarian fairness and respect should be traded off against each other or that luck egalitarianism is conditionally sound, i.e. sound only if it is consistent with respect. Alternatively a luck egalitarian might claim that the shameful revelations allegation provides welfare-based luck egalitarian reasons against the achievement of complete fairness in the distribution of resources. That is, if luck egalitarianism aims to equalise access to welfare, and collecting information about citizens’ talents will make them ashamed, then luck egalitarianism would not require this information to be collected (see e.g. Arneson 2000: 177). However, neither of these responses really challenge Wolff ’s argument, since both responses accept his main contention —that there is a conflict between fairness and respect in a luck egalitarian society. The first type of response clearly grants this main point. That the second does so is less obvious but, in fact, it concedes the problem and pushes it back a level. If one claims that welfare-based luck egalitarian reasons would prohibit making people reveal their lack of talents, then there is still a conflict between fairness and respect - it’s just that it’s been rebranded, in Wolff’s terms, as “fairness conflicted against itself” and, it seems, respect has won (Wolff 1998: 117-118). 
My argument does not take this concessive tack. I aim to refute the shameful revelations allegation itself and therefore show that the conflict Wolff points to is not real. My basic argument is as follows: emotions have a cognitive structure, that is, one of the constitutive components of each particular emotion is a particular type of belief. For example, one of the components of fear is the belief that danger is approaching or present. Shame is felt when one believes that one does not possess some quality that one believes one needs to have in order to have value (in some deep, but not necessarily moral, sense of the word ‘value’). So, in order to be ashamed of being untalented, one must believe that one’s value depends on the natural marketable talents one possesses. As I said, Wolff intends the shameful revelations allegation to apply to an ideal egalitarian society, where an ideal egalitarian society is defined as one where the inhabitants embrace and are guided by the underlying principles that inform the way that that society is governed. But believing that a person’s value, in any deep sense, depends on her marketable natural talents is highly inegalitarian (although admittedly in a different sense of the word to how it is used in the phrase ‘luck-egalitarian’). So it is my contention that in an ideal egalitarian society, people will not believe this and, therefore, will not be ashamed of being untalented. The shameful revelations allegation is false and we can, therefore, show that the conflict between fairness and respect is not real. In an ideal egalitarian society, the threat of people having to make shameful revelations will not provide a reason for us to have an unconditional state-benefit system. 
My paper will be structured as follows. Section I will outline what beliefs the citizens of a society must hold in order for the society be an ideal egalitarian one. Section II will explain the cognitive structure of emotions and give a brief conceptual analysis of shame. Section III will provide a summary of my argument and give its conclusion. I will consider and reject possible objections to my argument in section IV. (Namely worries arising from (i) the fact that some people in current society would say that marketable talents don’t add to a person’s value but would feel ashamed if they found out they were untalented and (ii) the fact that careers are important goods for many people). My paper only seeks to defend ideal luck egalitarianism from Wolff’s  attack (I would like to be clear about this). However, whether a theory is successful or not at the ideal level affects its application and, in section V, I will conclude by briefly and tentatively considering the real-world policy implications of my argument. 
Let me emphasise that in this paper I am discussing brute or natural talents, like physical abilities or raw intelligence rather than character-trait based talents like drive, ambition, or being hardworking. I limit my discussion in this way for three reasons. First, I am a compatibilist in the context of the free-will debate: crudely speaking, even though people do not choose their character traits, there is a sense in which they endorse them and I think this is a sufficient basis on which to hold them responsible for them. Second, even if one thinks people are not responsible for their character-trait talents in the relevant sense and that in an ideal luck egalitarian society it is inevitable that people will be ashamed of, for example, being lazy or unambitious this would significantly reduce the force of the shameful revelations allegation. The idea that lazy and unambitious people would be ashamed of claiming state benefits is nowhere near as alarming as the idea that those with, for example, a learning disability would be. Third, this is the meaning Wolff has in mind. 
Before getting into the meat of my argument, it is worth mentioning that Wolff has recently published ‘Fairness, Respect and the Egalitarian Ethos Revisited’ (Wolff 2010). In this paper, Wolff explores some ways in which a person might be tested for untalentedness without shaming them or undermining their self-respect (e. g. by sensitive interviews combined with counselling). His main conclusion in the new paper is that:
[T]hings are very likely to go badly wrong if we set out an ideal theory of equality and then attempt to implement it in the real world without a great deal of further thought about how it would actually impact on people, and the relations between them (Wolff 2010: 349).
I do not disagree with this conclusion but it is obvious and, as Wolff himself says, ‘bland’ (Wolff 2010: 349). Further, the main idea of my paper (that in an ideal luck egalitarian society people would not be ashamed of being untalented) is not discussed in his new paper and the shameful revelations allegation is influential, important and interesting in its own right. For these reasons, unless otherwise stated, I will direct my arguments against the original paper.

03 June 2014

SIM Registration

'The rise of African SIM registration: The emerging dynamics of regulatory change' by Kevin P. Donovan and Aaron K. Martin in (2014) 19(2/3) First Monday states that
The African experience with mobile telephony has been extolled as a defining moment in the continent’s contemporary economic, social, and political development. Yet SIM (Subscriber Identity Module) registration schemes are threatening to throttle the technology’s developmental potential. These mandates, which require the registration of identity information to activate a mobile SIM card, are fast becoming universal in Africa, with little to no public debate about the wider social or political effects. Whereas some authors have explored the motivations behind these drives, as well as their potential economic impacts, this paper focuses its critique on the broader diversity of implications of this regulatory transformation. Viewing SIM registration through a lens that combines surveillance studies and information & communication technologies for development, it examines elements of resistance across a range of actors, as well as other emerging effects like access barriers, linkages to financialization, and Africa’s budding mobile surveillance society 
The authors comment
Justifying his support of SIM card registration requirements, the executive secretary of the East African Communications Organisation noted that “Our telephones have become a part of our identity.” This view of the centrality of mobiles to the daily lives of users is reflected in the social studies of mobile communications and is an important reminder of the seriousness of probing regulatory transformations such as SIM registration.
Given their relative importance in Africa (Kelly and Minges, 2012; Castells, et al., 2007; Donner, et al., 2010), it is perhaps not surprising that states would seek to monitor mobile communications. Yet, in considering SIM registration and resistance, it is crucial to consider it as a component of a growing surveillant assemblage that also incorporates other technologies such as biometric identity cards and electronic passport systems, new video surveillance technologies, and, especially important in the African context, electronic health systems. While doing justice to the breadth and complexity of these developments is beyond the scope of this paper, this closing discussion contends that African SIM registration requirements are part of a growing trend on the continent toward government monitoring and control of the communications infrastructures.
To emphasize the diversity of the phenomena that parallel — and sometimes explicitly intersect with — SIM registration, consider a few cases. In mid–2013, Benin became the site of a scandal around allegations of wiretapping. As Frowd (2013) summarized, the local affiliate of South African mobile operator MTN was accused of permitting the president of Benin to wiretap his political rivals from the isolation of his office and home. A few months prior, researchers at the University of Toronto revealed the presence of command and control servers for an offensive digital intrusion software called FinSpy in Ethiopia, Nigeria, and South Africa (Marquis–Boire, et al., 2013). This software, provided by British firm Gamma International, has been used from Malaysia to Bahrain to infiltrate opposition communications [23]. In each case, a population registry from SIM cards would significantly lower the barriers to identifying communications.
In Kenya, the government has established the so–called Integrated Population Registration System (IPRS) which merges “data from the birth and death register, citizenship register, ID card register, aliens register, passport register and the marriage and divorce register ... On top of these 6 registers, it compiles details from the elections register, tax register, drivers register, National Social Security Fund (NSSF) register, National Hospital Insurance Fund (NHIF) register and the Kenya National Bureau of Statistics (KNBS) register.” As Mbote (2013) reports, the “SIM registration exercise would not have been possible without the IPRS.” The amount of information in the IPRS led its chief to brag that, “We now have the 360 degree view of any citizen above the age of 18 years.”
Countries have also taken to monitoring and filtering mobile communications content. SIM registration in Zimbabwe is being pursued at least in part as a means to clamp down on political speech (e.g., ZimDiaspora, 2013). Zambia is using deep packet inspection (see Bendrath and Mueller, 2011) to block opposition media (Tor Project, 2013). An effort by the Malawi Communications Regulatory Authority to capture communications metadata (and potentially content) was rejected by a court in September 2012 (Gondwe, 2012). In Kenya during the lead up to the 2013 elections, MNOs were algorithmically blocking up to 300,000 SMS per day (Mukinda, 2013).
In an increasing number of African countries, these practices are being outsourced internationally. Uganda has inked a deal with the Korean Internet and Security Agency to help manage its domestic Internet (Businge, 2013). Zambia, Ethiopia, and Zimbabwe have sought Chinese assistance in monitoring domestic communications and the Chinese telecommunications giant Huawei has moved from simply providing infrastructure to actively managing communications networks in Africa (Reed, 2013). Pierskalla and Hollenbach [24] suggest that the capacity for mobile surveillance in Africa is low, however these dynamics suggest that even if that is the case, it is rapidly changing. Finally, Nigeria is currently in the process of awarding 25 contracts for mobile phone surveillance projects (Akwaja, 2013) despite concerns about the lack of judicial oversight, legislative buy–in, and rogue access to collected data (Collins, 2013).
Although surveillance is constitutive of modernity (Lyon, 2007) and sometimes even desirable, the manner in which SIM registration mandates and these related developments have been implemented is troublesome. In brief, they have been pursued without appropriate consultation, transparency, or ameliorative reforms such as fair information or privacy laws. In fact, in cases from Kenya and Tanzania to Nigeria, the very legal basis for the action is in question. Mobile communications surveillance has been tied to other pernicious problems, particularly corruption due to both the secrecy and substantial government contracts involved. Nigeria provided a US$40 million sole source contract to an Israeli firm for monitoring communications (Emmanuel, 2013) and a recent Kenyan tender for surveillance equipment was cancelled amid improprieties (Wabala, 2013).
This is exacerbated by the low level of democratic development in Africa. According to Freedom House (2012), only 10 countries qualify as free, and one of those — Mali — was the site of a recent coup. Whitehouse (2012) notes that, “the number of electoral democracies on the continent has fallen from 24 to 19 in the last seven years.” Indeed, non–democratic African countries have proved quite adept at subverting any potential liberatory effects of ICT (cf., Diamond and Plattner, 2012). Ethiopia has maintained a government monopoly on telecommunications and invested significantly in controlled networks (Gagliardone, 2009); Swaziland’s absolute monarch is a large shareholder in the monopoly mobile operator MTN, which also has his daughter on the board of directors (Lukhele, 2012) and has been accused of shutting down its network to impede political protests (Langeni, 2011). More broadly, mobile communications are a far more controlled infrastructure than the Internet (Benkler, 2010; Zuckerman, 2010). The addition of SIM registration requirements serves to lower the barrier to surveillance. The resulting chilling effects arise just as many are hoping that mobiles can be used to promote democracy on the continent.
As of 1999, no country in Africa had data privacy legislation (Banisar, 1999). In the intervening years, around 10 have enacted some form of data privacy law, and a number of others have such rules pending, but implementation and enforcement capacity remains limited (Makulilo, 2012). In particular, few African countries have corresponding legal duties on the collectors of personally identifiable information, such as not to make unauthorized disclosures. The secondary use of personally identifiable data is sure to grow, consolidating and linking to other emerging databases. Importantly, this is happening across borders, with the East African Community taking steps to share SIM registration across borders (Sato, 2013). Already, the CTO of MTN Nigeria is publicly advocating for SIM registration data to link to banking, health, and driving license data (Atili, 2012). It may be the case that normatively desirable outcomes emerge from these happenings — indeed, we agree that the exclusion of the poor from identity systems is often problematic (Setel, et al., 2007) — but the growing chorus of support for the positive aspects must be complemented by steps to avoid the downsides; in the case of SIM card registration in Africa, this has rarely happened. As suggested earlier in this paper (section II), the exclusion of surveillance from the dominant literature on the impact of mobiles in Africa is at least partly responsible for this silence and inattention.
There is an urgent need for enhanced scholarly and activist attention to SIM registration and associated trends that are establishing surveillance at the heart of the African mobile society. Too often, privacy is conceived as a technical problem to be fixed — an afterthought — rather than a complex political problem. Already the World Bank is thinking about “using digital identity to fight poverty” (Sudan, 2013) and the United Nations is pioneering “big data for development” (United Nations Global Pulse, 2012). More attention must be directed towards the privacy implications and politics of these trends. This attention can draw on international experience, but must be deeply aware of the particularities of the African context. For example, there is scope for learning from European data protection work, restrictions on secondary use, and fair information laws [25]. Already SIM registration data is being used for inappropriate ends such as electioneering (e.g., Zambian Watchdog, 2013) and worries about identity theft are emerging (Onwuegbuchi and Ugwu, 2013). However, the specifics of African political and economic development matter, and future work should draw on this history and context. By way of illustration, the outsourcing of network monitoring to foreigners mentioned above is directly a result of limited bureaucratic and technical acumen, and the impotence of the resistance to SIM registration can be attributed to the political arrangements in many African countries where civil society and opposition is weak. Scholars studying digital technologies would do well to connect with Africanists.
They conclude -
While many popular and academic narratives on the impact of mobile telephony on Africa’s development depict a positive outlook in which technology will bring sustained benefits to citizens as connectivity increases, parallel developments complicate these storylines. As we have shown, SIM registration represents a form of communications surveillance that reduces the anonymity once afforded — perhaps unintentionally — by prepaid airtime. These identification mandates may bring modest security benefits, although as noted, the evidence for such claims remains inconclusive. More importantly for the present discussion, however, is that SIM registration complicates the much–lauded developmental and emancipatory influences of these technologies. Of course, this pessimistic view ignores the resistance dynamics that were the focus of this article. In the case of SIM registration, it seems formal resistance to the imposition of the laws has been modest and ineffectual, but more everyday forms of resistance to compliance are proliferating. And, of course, these technologies never perform as seamlessly or perfectly as their proponents claim (cf., Magnet, 2011). At the very least, more debate is needed about these policies, including their political origins, effectiveness, and unintended consequences. We hope this paper has made a small contribution to these debates.
On the topic of future research, there is a lot of exciting work to do. We have ambitions to conduct deeper case studies of these programs across several countries on the continent. This will involve a closer engagement with stakeholders as well as an ethnographic examination of the everyday life of SIM registration, including documenting in detail what actually transpires at the point of enrolment (e.g., how discretionary are requirements in practice, what role does local knowledge play during registration when, for example, the enrollee is already known by the enrolment agent, and so forth), as well as post–registration realities. In addition, future research ought to explore more how African SIM registration policies conflict with other policy initiatives. As we have suggested above, it is already linked to the financial inclusion agenda, but other areas remain unassessed. For example, in Mexico the VidaNET program, which provides a treatment reminder system to those with HIV, has faced challenges as a result of the country’s SIM registration laws. Patients are understandably wary about participating in these mobile health programs because they fear medical confidentiality may be jeopardized by unrelated identity registration requirements (Feder, 2010). A separate regulatory development that deserves further study is the crackdown on counterfeit mobile devices, as is currently taking place in Kenya. This anti–counterfeit phone initiative led by the Communications Commission of Kenya and executed by MNOs aims to disconnect handsets with unrecognized IMEI numbers, which are believed to be fake (wa Chebusiri, 2012) [26]. This disconnection strategy has been linked with the country’s SIM registration efforts even though it is not immediately obvious how the two relate (that is, counterfeit phones seem to represent more of a trade regulation matter than a security problem). Finally, there is significant room for academics and civil society to work with government on the challenges raised in this paper for consumer protection laws, data protection laws, and constitutional safeguards. Best practice guidance with regard to SIM registration and network disconnection would also serve policy–makers.

Credit Management

Hardship Policies in Practice: A comparative study [PDF] by Lauren Levin and Fiona Guthrie for the Australian Communications Consumer Action Network (ACCAN) and Financial Counselling Australia (FCA, Australia's peak body for financial counsellors) reports on "hardship practices" in the banking, energy, water and telecommunications sectors.

The authors comment
In 2012, Financial Counselling Australia (FCA) received a grant from the Australian Communications Consumer Action Network to conduct research comparing hardship practices in the banking, energy, water and telecommunications (telco) sectors.
The overarching aim of the research was to elucidate effective practices – ‘what works’ – for consumers, as observed from the vantage point of financial counsellors, and then expanded to include the perspectives of other stakeholders. More specifically, the research aimed to facilitate an ongoing dialogue between FCA, relevant consumer organisations and the telecommunications industry when assisting customers in hardship.
The research methodology comprised semi-structured interviews with experts in the financial hardship sector: financial counsellors, consumer advocates, staff from the hardship teams in telco, banking and finance, and the utility sectors, regulators, external dispute resolution (EDR) schemes and government. Three focus groups were held with consumers who have telco debts, a literature review was generated and a workshop was held to review the overall findings of the study.
Why is this research important?
Financial difficulty is often the result of a change of circumstances, such as unemployment, illness or relationship breakdown – events that can happen to anyone.
Poverty is also a major cause of financial hardship and, not surprisingly, data from the Australian Bureau of Statistics shows that the people at greatest risk of experiencing financial stress are those on low incomes. This group includes people whose main income source is social security benefits and single parent families with children. However, there are also relatively large numbers of higher income families with assets, who are also struggling with high levels of debt.
Financial difficulty is also correlated with (or may cause) other problems. It can affect physical and mental health, relationships and children. To our knowledge the costs of these associated problems have not been documented, however, they are likely to be significant. Whatever the reason for financial difficulty, appropriate action could mean the difference between financial recovery and financial oblivion. If financial problems can be minimised or rectified, there are obvious benefits for individuals and families, as well as industry and the wider community.
Six factors that make the greatest impact on hardship policy and practice
On review of the interview data, workshop participants identified six key factors that contribute to effective hardship policy and practice. These areas are: access, early identification, sustaining good performance, attitudes and culture, the business case, and concession and grant frameworks.
Access – access to a hardship team is of benefit to consumers. However, many people in financial difficulty are either unaware of hardship assistance or sometimes find that access is blocked by ‘gatekeepers’. The banking industry has recently tackled this issue; as part of an industry-wide voluntary initiative, the home page of every bank website has information about what action to take when experiencing financial difficulty. There is also a dedicated website, as well as information in bank branches that advise on hardship practices. Early identification – the water industry has had success in proactively identifying customers who may be in hardship, but there has been mixed success in other industries. To be successful, early identification has to be approached sensitively.
Sustaining good performance – all interviewees said that sustaining good performance is hard. A key factor is the commitment of the people in the hardship team and the leadership from the CEO and senior staff. The effectiveness of the regulatory framework also influences the extent to which companies focus on assisting customers in hardship in a meaningful way.
Attitudes and culture – critical for sustaining good performance are the attitudes and culture of the people in an organisation. Training is one mechanism to ensure appropriate attitudes. Cultural change at an industry level through the development of specific hardship frameworks has been initiated by the banking industry and is expected similarly in the telecommunications industry.
Business case – it is a widely held view that the business case for a hardship function within an organisation is cash positive, but this research only unearthed one example where one had been undertaken (Yarra Valley Water). This is an area where significantly more work could occur.
Concession and grant frameworks – participants reported that many Australians are missing out on concessions or grants that could assist them and that Australia’s concessions framework is ad hoc, inconsistent, complex, confusing and, in many cases, inadequate. A national framework with consistent eligibility, appropriate funding and online accessibility is necessary.
Other research findings 
‘Hardship’ was a term commonly used by interviewees. It was also referred to in some legislative frameworks. However, interviewees also noted that it is not a term commonly used by customers. This is important to remember when interacting with customers. For example, individuals should not have to use the term ‘hardship’ to access a specific hardship team.
In essence, two competing value judgments shape the way hardship programs operate in different businesses. These are: ‘people want to pay’ versus ‘people are out to avoid their obligations (or they’re paying everyone else but us)’. These value judgments flow through in many ways, for example in the use of language (whether people experiencing hardship are ‘customers’ or ‘debtors’) and in requirements for ‘proof’ of financial hardship. 
Financial counsellors, as well as a number of the telco focus group participants, reported that affordable payment arrangements were difficult to arrange. Some of the industry interviewees were also aware of this problem, noting that sometimes customers could be too optimistic about what they could afford. They recognised that customers may agree to an arrangement simply to terminate the call. Incentive arrangements, which involves the business crediting a payment after a number of payments to an outstanding debt has been made, were very effective. Some energy and water retailers offer these to their hardship customers. Customers feel like their efforts are being rewarded.
Not surprisingly, interviewees said that staff training and skills were critically important. Training needs to be across a business and not just for the hardship team. Training that provides real life examples of what it means to be in financial difficulty is the most successful. Financial counsellors said that the collections and hardship teams are typically ‘worlds apart’ in their approach to dealing with customers in financial difficulty. The general theme in collections is ‘what can you pay and when?’, whereas hardship arrangements are more flexible. All interviewees said it was vital that the collections and hardship teams worked together. Some collection departments have the tools to identify people in financial hardship and respond, for example, by linking them with Centrepay on the spot.
There is a growing consensus about the treatment of ‘bulk debt’ clients – those with very low incomes, no significant assets and where neither of these factors is likely to change. Interviewees recognised that from a commercial and social perspective, a debt waiver or at least a cessation of debt collection activity, is an appropriate response.
Financial counsellors noted that in their experience it is easier to get positive outcomes with some debt collectors than the original creditor. The arrangements are affordable, can be over a longer term and are generally more flexible.
Telco focus groups
The research included three focus groups with consumers who had difficulty in paying telco bills. The overall theme from the focus groups could be summarised in just one line: ‘please help us’. Participants overwhelmingly found the experience of dealing with a telco about their debt exhausting and stressful. Many participants found it difficult to negotiate affordable repayment arrangements and said that collections staff did not listen. Participants also raised issues related to service and sales problems and overseas call centres. One focus group was comprised of new arrivals to Australia. Comparatively this group found the process of financial difficulty much harder to navigate.
Comparing industries
The research shows that that there are different approaches to hardship between the banking, utility and telco sectors. Water companies were generally seen as being the most progressive by interviewees – however we note that these comments were about Victorian and New South Wales businesses and may not apply generally. A couple of the large debt collection companies were also singled out as dealing effectively with customers in financial hardship. The banking sector stands out as having made a conscious decision, at CEO and industry level, to engage with consumer organisations. This has resulted in a number of positive initiatives as outlined above.
None of the financial counsellors interviewed considered any of the telecommunication companies to demonstrate good practice. Instead, they were viewed by the majority of financial counsellors and consumer advocates as the least effective sector for offering hardship assistance.
In discussing performance the authors note
Sustaining good practice is difficult
A common refrain in the interviews with financial counsellors, consumer advocates, and other stakeholders, was ‘company x used to be good, but they’re not anymore.’ In other words, sustaining good practice is difficult. Importantly, interviewees noted that a good reputation for assisting customers in financial difficulty lifted a company’s profile and reputation. 
Factors that sustain good performance 
Critical factors in sustaining performance (as noted by workshop participants) include:
  • measuring the right things, including customer experiences; 
  • rewarding success internally within the company; 
  • showcasing effective (and non-effective) practices across and within industries; 
  • leadership; 
  • the effectiveness of the regulatory framework, including a baseline of regulatory requirements and performance measures. Regulators also need to enforce the rules. 
The regulatory framework is a very important driver 
It was clear from the interviews that the regulatory framework, including the strength and pro-activeness of the regulator, had a major impact on hardship approaches. In particular, interviewees from the banking sector were very conscious of ASIC as the regulator, the potential sanctions for breaches and the requirements imposed by credit laws. In addition, they were very aware of media attention highlighting ASIC sanctions and expressed a strong desire to not be dragged into the public spotlight. Banking industry interviewees said a negative report meant that ‘heads would roll’. The market would react negatively to sanctions such as enforceable undertakings and senior management would be concerned about reputational damage. 
‘With the NCCP24, we don’t want to be the first with a $1.7 million complaint, so ASIC has a big impact on the way we operate. And don’t want to be in the news. ASIC is very strong’. Bank interviewee
Individuals from other industry sectors did not appear to be concerned by regulatory sanctions to the same extent, although the utilities sector interviewees were very conscious of the legislation and codes. The telco regulator and code was not raised by interviewees in this sector to anywhere near the same extent as by interviewees from other industries. 
Performance drops away with a change of leadership and/or staff 
When interviewees discussed companies whose performance had changed, a common theme was the loss of key staff, including those at senior levels. As one interviewee said:
‘The CEO (of the energy company) was very compassionate and had the vision. Their focus then shifted to the bottom line and vertical integration. This flowed through to their hardship program ... on companies going backwards – the biggest issue is someone leaving.’
One EDR scheme interviewee presented the example of a high performing company with a solid hardship program and a visionary managing director. The program became less effective after the company underwent a major operational restructure. The ombudsmen team also noticed a deterioration in their working relationships with the company’s hardship team, after the staff members on the ground disappeared in the restructure. The interviewee observed that a case management model relied on making local referrals, but energy and water retailers struggle to refer customers effectively when they operate from a centralised model. 
 The importance of leadership was reinforced by Sue Fraser, a financial counsellor with Kildonan UnitingCare, Victoria. Sue has worked with a number of companies on a consultancy basis helping them to improve hardship responses.
‘When we have been working with industries, when they’re participating, they do well. Working with vulnerable consumers it looks and sounds easy because you just talk to people, get them to pay something and they do. 
As they get less complaints and greater cash flow, it’s like “we’ve done that now” and we can move on. When we worked with [one of the banks] they blitzed all their measurements but they’ve lost some of the structural program – [an energy company] too. While you have a champion things are fine, but when they move off new managers want to put their mark on it. 
[An energy company] at one stage were by far the leader. We stopped working with them six years ago. If you ask any financial counsellor, they used to be good but are shocking now. As soon as management changes, then it is lost. So we work with senior management, they take ownership internally, and don’t see it as a fly by night affair. So it’s not negotiable.’ 
Performance can also drop away when there are structural changes 
Small changes can have profound consequences and can even negate previous gains. We were informed about one energy company that had been recognised as having a standout hardship program. The company then made a structural change, diverting all callers through a triage centre. Previously customers had benefitted from direct contact with the hardship team. The triage team’s role included organising the payment arrangement with the hardship team responsible for subsequent account management. This introduced a disconnection between the hardship team and the customer. There was no longer a direct relationship between hardship staff and the customer when they initially explained their situation and needs. 
Regulatory measures of raw numbers are not of great assistance in making assessments about effective or non-effective performance 
While industry regulators monitor company hardship performance the data can be difficult to interpret. For example, is it a good or bad result to have high numbers of people entering a hardship program? A low number in a hardship program could imply that customers are not being proactively assisted and that their financial positions are worsening as a consequence. One regulator noted:
‘There is not just one measure that is valuable. We probably need to look at a cluster of indicators to show both absolute rates and trends over time. The number of people going into a hardship program doesn’t mean too much.’ 
Indicators that reveal the effectiveness of a hardship program in the energy and water sectors may include:
  • The number of disconnections (with a benchmark indicator) and the size of the debt at disconnection; 
  • The number of restrictions initiated in cases where the customer was a concession cardholder (well-developed programs have significantly lower rates); 
  • Absolute size of debts; 
  • Availability of alternative payment arrangements and flexible payment arrangements (such as the ability to make fortnightly payments) and incentive based schemes; 
  • Payment plans – the number of people meeting their commitments under the plan amounts and the numbers of unsuccessful arrangements; 
  • Debt arrearage indicators, which show how companies manage high arrears, when the customer is struggling to pay for current consumption. One view from some community sector interviewees is that businesses have an obligation to consider debt forgiveness or have an affordable (and perhaps reduced payment plan) if they have allowed debts to accrue without acting earlier;  
  • Uptake of government programs (such as utility relief grants);  
  • Time taken to send debts to a debt collector (or alternatively, how long since the customer has paid in full);  
  • The average amount of hardship debts for different customer profiles – $200 may be a huge amount to a pensioner but not that much for a family in a higher income bracket.

02 June 2014


With news of the alleged US$350,000 "theft of human skin" by US sales rep Gary Dudek - of interest to students of Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 - I am reminded of 'Tanned Human Skin' by Lawrence S Thompson in (1946) 34(2) Bulletin of the Medical Library Association 93.

That article begins -
The notion of flaying the human body and tanning the hide is an old one. According to Herodotus the Scythians cultivated the art. In Saxon Britain it was customary for certain types of offenders to pay a hyd-geld to save their skins, and marauding Danes who committed sacrilege in the churches were flayed and their skins nailed to the church doors. Other legends such as that of Zisca's drum made of his own skin and the thirteenth century Bible in the Bibliotheque Nationale made on parchment from peau de femme are not so easy to prove. Similar folklore is the medieval Bavarian belief that anthropodermic girdles were effective aids to childbirth.
In modern times the growth of interest in the possibility of tanning the human exuviae has risen slowly. The first authentic notice on the subject in recent centuries is the information that William Harvey presented the College of Physicians with a tanned human skin. Among the first to put tanned human skin to practical use was Anthony Askew (1722-1773), physician, bibliophile, and classicist, who had a Trait d'anatomie bound in the human integument. Another English physician, John Hunter (1728-1794) had an Abbandlung uber die Hautkrankbeiten put up in a healthy cured human skin.
On the other side of the Channel French physicians were also taking some note of the possibilities of human leather. Valmont de Bomarel reports that a celebrated Parisian surgeon, M. Sue, gave to the Cabinet du Roi a pair of slippers made of human skin. Valmont reports further that this same museum owned a belt of human skin on which the vestiges of a nipple were clearly distinguishable, and another piece consisted of the last two fingers of a right hand, including the nails. Further up the coast in the Low Countries Hermann Boerhaave (1668-1738) had formed a collection of medical curiosities including a pair of lady's highheeled shoes made of leather from the skin of an executed criminal. Again here the nipple was used as an ornament, adorning the front of the instep.  However, no systematic interest was taken by the medical profession in the practical uses of human leather until the nineteenth century. Possibly it resulted from the impetus given to anthropodermic bibliopegy and related arts by the French Revolution. Few histories of the Revolution omit references to the infamous Royalist propaganda to the effect that a gigantic human skin tannery at Meudon filed all the requisitions for the leather goods needed by the revolutionary army quartermasters. Likewise, most of us who have made the grand tour or read guidebooks on Paris are familiar with the Carnavalet Museum's copy of the French Constitution of 1793 which is contained in a piece of human skin dyed a light green.
At all events, we find in early nineteenth century England a remarkable tendency on the part of the courts to include in the sentences of condemned criminals a provision that their bodies be delivered to local surgeons for disection, and on several occasions the hides of these scoundrels were immortalized. Possibly this type of sentence was intended as an antidote for the notorious practice of "Burking," so-called from the profession of William Burke, who earned his bread by murdering the good citizens of Edinburgh and selling the cadavers to a local physician for dissection. When Burke himself was finally apprehended and executed in 1829, a portion of his skin was tanned. Part went to make a wallet for the doorkeeper of the anatomical classroom in Edinburgh. A larger piece which was tanned and dyed a dark blue fell into the hands of the publisher of Burke's trial, who had it cut into small pieces and distributed to various friends. One portion of it was included in the remarkable collection of papers relative to Burke and Hare which was formed for Sir Walter Scott and retained in the library of the bard at Abbotsford after his death.
The early issues of Notes and Queries are full of accounts of criminals whose integuments were removed subsequent to dissection and delivered to the tanner. The earliest known instance of a criminal whose body was ordered by the court to be dissected is found in the sentence of one James Johnson, condemned to the gallows on March 19, 1818, by Mr. Justice Dallas of the Norfolk Assizes, who also ordered that the culprit's body "be delivered to the surgeons to be anatomized." Following the execution, which took place on the Castle Hill, Norwich, in the presence of 5,000 spectators, the dissection was performed by Mr Wilson, "a gentleman from London", and Mr Austen, "a pupil of Mr Dalrymple's, who prepared the body for a series of daily lectures delivered by a Mr Crosse".
Another early case on record is that of a youth of eighteen named John Horwood, who was hanged on April 13, 1821, at Bristol New Drop for the aggravated murder of Eliza Balsum. Richard Smith, senior surgeon of the Bristol Infirmary, was given authority by the court to dissect the body; and after a course of lectures ad populum on respiration and circulation which he based on the corpse, he flayed the body and tanned the skin. The skeleton he preserved in a cabinet of curiosities, principally relics of executed criminals; and near this museum piece he placed a bound collection of Horwoodiana with a label on the back (some 6" x 3") of tanned human cuticle. It resembles light russia, has tooled borderlines in gold with a skull and crossbones stamped in each corner, and a gilt inscription in blackletter: "Cutis Vera Johannis Horwood". The book is still in the Bristol Royal Infirmary.
About five or six years after the execution of John Horwood, William Waite went to the gallows at Worcester for the murder of his wife's daughter (by a former husband), a little girl named Sarah Chance, by throwing her into an exhausted coalpit. Dissection was a part of his sentence, and after dissection his entire skin was flayed by a Stourbridge surgeon named Downing. It was not tanned but rather preserved in a sumach preparation.
One of the most celebrated dissections which resulted in ultimate tanning of the hide was that of ratcatcher George Cudmore, executed in the Devon County Jail in 1830 for the murder of his wife, Grace, with the assistance of a woman named Sarah Dunn. The Dunn woman, incidentally, was forced to witness the execution of her accomplice, and she is said to have fallen into hysterics and fainted when the drop fell. Cudmore was dissected at the Devon and Exeter Hospital. Subsequetnly his tanned skin fell into the hands of W. Clifford, a bookseller of Exeter, who used it for binding a copy of Teggs's 1852 edition of Milton. This book was at one time in the library of Ralph Sanders of Exeter, but it is now in the Albert Memorial Library of that city. The skin is dressed white and looks something like pigskin in grain and texture.


The Age reports the Victorian FOI Commissioner, recently revealed as not meeting deadlines for reviews of access decisions by state agencies, will gain two assistant commissioners and staff will be seconded from the Justice Department to create an education program for the public sector.

Performance targets will also be adjusted to "take into account the volume and complexity" of FOI applications. Rather than meeting agreed timelines in 100% of cases, the Commissioner's performance target has been adjusted to 85%.

The Age reports however that the Commissioner's budget will be reduced, with $2.7 million in the coming FY, down from $3.5 million this year.


In Re: the Jury Act 1995 and an application by the Sheriff of Queensland [2014] QSC 113 the Supreme Court of Queensland has considered whether an individual with a hearing impairment (sufficient to require an Auslan interpreter) was eligible for jury service.

Douglas J states that
An individual has been selected on a jury panel to perform jury service in the current criminal sittings of the Supreme Court and the District Court. She has advised the sheriff that she required an Auslan interpreter in the event that she was empanelled as a juror and the sheriff has referred to the Court the question of her eligibility for jury service. 
By s 4(3)(l) of the Jury Act 1995 (Qld) a person who has a physical disability that makes the person incapable of effectively performing the functions of a juror is not eligible for jury service. The senior judge administrator authorised the sheriff, pursuant to s 14 and s 31(4) of the Act, to ask questions of the individual as a person who has been summoned for jury service, that related to whether her hearing impairment was such that she may be ineligible for jury service. Section 68 also authorises the sheriff, or a person authorised by the sheriff, to ask a person reasonable questions to find out whether the person is qualified for jury service. The individual has, among other things, told the sheriff that she is able to lip read well, but that, as her hearing is not good, she may miss parts of some conversations. 
In other jurisdictions, deafness as a disability has been sought to be overcome by the use of Auslan interpreters, or equivalently qualified interpreters, to assist jurors. Such a solution may be adequate to deal with the individual’s disability in respect of the hearing of evidence during any trial, but further potential difficulties arise in respect of deliberations by the jury in the jury room during and after the hearing of the evidence. Communication or discussion between jurors has been emphasised as an integral part of the jury system because of their collective duty to pool their experience and wisdom in coming to a verdict, see Watson and Ors (1988) 87 Cr App R 1, 8. In the absence of legislative provision, it is clear that the jury is bound to deliberate in private, see Goby v Wetherill [1915] 2KB 674, 675. 
While s 54 of the Jury Act prohibits a person from communicating with any of the jurors without the judge’s leave, it is not at all clear that the judge’s ability to give leave would permit the presence of an interpreter in the jury room during the jurors’ deliberations. That section appears to be directed at maintaining the secrecy of jury deliberations and preventing jurors from discussing those deliberations, particularly with the media. The discretion, there, is not well adapted to permitting an interpreter to sit in a jury room to assist a deaf juror to take part in the deliberations; see, also, the discussion by Member Roney QC in Lyons v State of Queensland (No 2) [2013] QCAT 731 at [146]-[171]. Other jurisdictions have made particular legislative provision for such an eventuality, but that has not happened in Queensland. 
A further complicating feature of the failure to make such legislative provision is that there is no explicit power, for example, to require such an interpreter to swear an oath or to make an affirmation to maintain the secrecy of the jury’s deliberations. It is an offence under s 95 of the Criminal Code for a person to administer an oath or take an affirmation where the person lacks authority to do so. 
So while it may be possible to assist this individual to participate in the trial itself, by the use of an Auslan interpreter, and, for example, written jury directions, it would not be appropriate to permit such an interpreter to perform a similar role in the jury room as a “13th juror” in the absence of specific legislative provision, including the power to require the interpreter to swear or affirm to keep the jury’s deliberations secret. 
The issue that then arises is whether the individual’s ability to lip read will be sufficient to allow her to perform, effectively, the functions of a juror, to use the language of s 4(3)(l) of the Act. As I have said, those functions include the need to communicate effectively with other jurors. As I also said earlier, she has told the sheriff that she is able to lip read well, but that, as her hearing is not good, she may miss parts of some conversations. She has also told me that she needs an Auslan interpreter to “speak” most effectively to other jurors because, in effect, Auslan is her first language, although she can say words as well. Nevertheless she said that sometimes people do not understand what she says so that if she has an interpreter, things go a lot more smoothly. 
Jury deliberations take place in a room equipped with a large table, around which chairs are available to allow jurors to sit and discuss the issues arising in a case. It is reasonable to assume that those deliberations will not always occur in a structured or orderly fashion, such that one person spoke at one time in circumstances where it was visibly obvious who the speaker was and what he or she was saying. There seem to me to be considerable risks for the fairness of any trial if one relies simply on the individual’s ability to lip read to qualify her as a juror, given her concession that she may miss parts of some conversations and the likelihood that she may not be aware that conversations are occurring which she cannot observe. There is a very real risk, absent the use of an interpreter, that she will not be able to participate properly in communication among the jurors. 
In those circumstances, and in the absence of legislative provision to facilitate the use of an interpreter to assist her to engage in the jury room discussions, my ruling is that the individual is incapable of effectively performing the functions of a juror and therefore ineligible for jury service.