11 October 2014

Transparency in political donations

The interim report [PDF] on donations and NSW electoral law comments
In June 2014, Premier Baird established the Panel to consider and report on long term reform of election funding laws in New South Wales. The Panel members are Dr Kerry Schott (Chair), The Hon. John Watkins, and Mr Andrew Tink AM. The Panel members have been appointed under Letters Patent issued by the Governor.
Following its terms of reference, the Panel is required to investigate options for long term reform of NSW political donations laws. This includes consideration of whether it is feasible and in the public interest to provide full public funding of State election campaigns. The Panel is required to report by 31 December 2014.
The panel's  terms of reference are 
to consider and report to the Premier by 31 December 2014 on options for long term reform of political donations, including:
1. Whether or not it is feasible and in the public interest given all considerations (including legal, constitutional and others), to provide full public funding of State election campaigns.
2. What is the appropriate level to cap the expenditure on State election campaigns and what methodology should be utilised to determine that cap?
3. If full public funding of State election campaigns is to be provided: (a) what measures can be put in place to ensure the integrity of public funding; (b) what is the appropriate regulation of third party campaigners (such as peak bodies, companies or industrial organisations) to run political campaigns and the impact of full public funding on them; (c) what is the impact on minor parties and independent candidates; and (d) what is the level of public funding that would be required?
4. If full public funding of State election campaigns is not to be provided, what models are recommended, taking into account issues including: (a) what is the appropriate level of caps on political donations; (b) what measures can be put in place to ensure that any caps are effective; (c) what is the appropriate regulation of third party campaigners (such as peak bodies, companies or industrial organisations) to run political campaigns and the impact of any proposed models on them; (d) what is the impact on minor parties and independent candidates; and (e) what is the level of public funding that would be required?
5. In considering all reform options, the Panel should consider: (a) what controls should apply to the making of donations, such as (i) whether or not particular entities or groups of donors should be excluded; (ii) whether prior approval of a majority of members of a corporate entity or other organisation is required; (iii) Any limitations or restrictions on such political donations; and (b) the appropriate frequency and timing of disclosure obligations under election funding laws.
6. Whether the penalties for contravening provisions in the Election Funding, Expenditure and Disclosures Act 1981 (NSW) are commensurate with the nature of the offence. This should include advice on penalties that could apply to donors, intermediaries or recipients of unlawful donations.
 The report comments
The Panel advertised widely to invite written submissions by 17 September 2014, and published an Issues Paper and a series of Working Papers on its website to guide and inform the debate. The Panel has so far received over 70 submissions from a broad range of interested people and organisations including members of the public, political parties, Members of Parliament (past and present), academics, peak bodies and other third-party interest groups. The issues that the Panel is considering have been covered by the media and this has led to some lively social media debate. The common theme has been disgust with corruption with different views about how to address it.
Different opinions are held about limits on political donations and electoral expenditure, the level of public funding that should be provided, and the extent to which the State should regulate the internal governance of political parties. The Panel hosted roundtable discussions with leading academics on 24, 25 and 29 September 2014 to further inquire into these issues. Members of the public were invited to attend and transcripts have been published on the Panel’s website (see http://www.dpc.nsw.gov.au/announcements/panel_of_experts_-_political_donations).
The submissions received by the Panel do reveal some areas of consensus. Most agree that more frequent and meaningful disclosure of political donations would help electors cast an informed vote, perhaps improving public confidence in the electoral system. Many submissions describe the current offences and penalties as inadequate and call for increased penalties to match the seriousness of deliberate breaches of election funding laws. A longer timeframe to bring prosecutions of potential breaches of election funding law was also commonly advocated. There have also been calls to better educate candidates and Members of Parliament about both ethical conduct and compliance with the Act.
Although the Panel has not yet formed a view on all of the matters set out in its terms of reference, it has prepared a short Interim Report on those areas where it has formed a clear view or identified a broad direction for action.
The Panel favours a number of measures to improve transparency, accountability and integrity of the election funding regime, including:
  • more frequent and timely disclosure of reportable political donations so that voters are aware of fundraising activity before an election; 
  • increased penalties for serious breaches of election funding laws, a longer time period for commencing prosecutions and a new general anti-circumvention measure; and 
  • mandatory education programs for candidates and Members of Parliament on ethical conduct and compliance with the Act.
In the Panel's view, these measures would not require significant legislative amendment or lead to further complications in an already complicated Act. The Panel believes that they could have a practical impact in terms of transparency, accountability and integrity.
The report notes
In New South Wales, annual disclosure obligations apply to political parties, elected members, candidates and groups. Third-party campaigners and major political donors are also required to lodge annual declarations with the EFA.
For donations of $1,000 or more, details including the name and address of the donor must be disclosed and are published in the EFA’s searchable online database. For donations under $1,000, the total amount of small donations and the total number of persons who made those donations must be disclosed. Donations of less than $1,000 from the same source in the same financial year must be aggregated for the purposes of the disclosure threshold. Given the broad definition of ‘political donation’ under the Act, the disclosure rules capture membership and affiliation fees, the proceeds of fundraising ventures and functions, and transfers of money to the NSW branch of a political party from the federal or other State or Territory branches of the party.
Annual disclosures must be lodged within 12 weeks of 30 June each year (or within 16 weeks of 30 June each year in the case of major donors). This means there is a delay between the making of a donation, the disclosure of that donation to the EFA and the release of information about the donation to the public. For example, disclosures (other than disclosure by major donors) covering the period from 1 July 2012 to 30 June 2013 were not due to be lodged until 22 September 2013 and were not available to the public until 25 November 2013. This means that NSW voters had to wait up to seventeen months to find out the sources and amounts of political donations made during the 2012-13 financial year.
A number of jurisdictions require either continuous or real-time disclosure in the lead up to an election. For example:
  • The New York City Campaign Finance Board requires candidates to report political donations within 24 hours of receipt using a software package called C-SMART. Disclosure statements are then published on the Board’s website in near real time. 
  • In New York State elections, candidates must lodge three campaign disclosure reports in addition to their annual disclosure reports: 32 days and 11 days pre-election and 10 days post-election. Donations of $1,000 or more received in the 11-day period before the election must be disclosed within 24 hours of receipt. Electronically filed disclosures are generally available through the New York State Board of Elections’ searchable database on the day they are received. 
  • Ontario, Canada requires donations of $100 or more to be reported within 10 days of being deposited. Information about such donations is then published on the Elections Ontario website within 10 days of being reported. 
  • In the ACT, donations over $1,000 must be disclosed within seven days if received after 1 January in an election year. Disclosures are generally made available for public inspection within a week. 
  • From 2015, South Australia will require immediate reporting of donations over $25,000 and weekly disclosure of donations of $5,000 or more in the lead-up to elections.

10 October 2014

Privacy Frameworks

'The Trouble with European Data Protection Law' by Bert-Jaap Koops in (2014) International Data Privacy Law argues
The trouble with Harry, in Alfred Hitchcock’s 1955 movie, is that he’s dead, and everyone seems to have a different idea of what needs to be done with his body. The trouble with European data protection law is the same. In several crucial respects, data protection law is currently a dead letter. The current legal reform will fail to revive it, since its three main objectives are based on fallacies. The first fallacy is the delusion that data protection law can give individuals control over their data, which it cannot. The second is the misconception that the reform simplifies the law, while in fact it makes compliance even more complex. The third is the assumption that data protection law should be comprehensive, which stretches data protection to the point of breaking and makes it meaningless law in the books. Unless data protection reform starts looking in other directions — going back to basics, playing other regulatory tunes on different instruments in other legal areas, and revitalising the spirit of data protection by stimulating best practices — data protection will remain dead. Or, worse perhaps, a zombie.
'APEC's CBPRs in Operation for Two Years: Low Take-Up, and Credibility Issues' by Graham Greenleaf in (2014) 129 Privacy Laws & Business International Report 12 argues 
APEC’s Cross-Border Privacy Rules system (CBPRs), like any other form of regulation, cannot simply be assumed to be credible and effective. In addition to its professed standards (considered in the previous article, G Greenleaf (2014) 128 PLBIR, 27-30), its operation in practice must be examined to determine whether it credibly upholds and enforces those standards. APEC’s Cross-Border Privacy Rules system (CBPRs) is not yet in full operation, but the initial operation of any institution is often a major determinant of its future path. The first two years of APEC CBPRs operation is examined in this article and found wanting.
This article shows that the APEC CBPRs processes, despite the conscientious efforts to improve them by representatives from some economies, are lacking in significant respects. The Final Reports by the APEC CBPRs Joint Operations Panel (JOP) lack sufficient independent assessment by JOP of whether an economy’s implementation of its laws will in substance deliver what is required by the APEC CBPRs requirements. The first JOP processes to appoint an AA were flawed, to an extent which should not have been acceptable to APEC member economies. Partly as a result, the first year’s operation of the only existing AA (US company, TRUSTe) has been carried out in a way which is not compliant with CBPRs requirements. This means that the renewal of that AA’s recognition is a major credibility test for JOP.
'Greenleaf's 'India's Draft the Right to Privacy Bill 2014 – Will Modi's BJP Enact it?' in (2014) 129 Privacy Laws & Business International Report 21 comments
From 2011-13 there there were three significant proposals for a comprehensive data privacy law in India but none gained the endorsement of the previous government. The overwhelming victory in India’s May 2014 national elections of the Bharatiya Janata Party (BJP) may end the log-jam of legislative inactivity that characterised the last few years of the previous Congress-led government.
In February 2014 the previous Bills were joined by the draft The Right to Privacy Bill 2014, a redraft of its 2011 draft Bill by the Committee of Secretaries (CoS), the heads of seven of India’s most powerful Ministries and Departments. This draft Bill represents the current thinking of India’s bureaucracy, and the election of a new government capable of enacting legislation makes it timely to review its main provisions.
This article argues that, for residents of India (but not persons overseas), this Bill would, if enacted, provide significant protections of international standards, if they were enforced. That is a significant ‘if’, because the enforcement mechanisms in the current ‘Rules’, particularly the Cyber-Appellate Tribunal (CAT) which this Bill also relies upon, have not functioned for three years. India has no track record whatsoever of enforcing data privacy laws. It would be up to the proposed data protection authority (DPA) to change that before The Right to Privacy Act would be credible. This brief assessment is not a detailed critical appraisal of the Bill, which would no doubt reveal many points of detail on which it could be improved, but the overall structure of the Bill is sound in theory, and compares well with most data privacy laws in Asia.
A related issue is that the BJP did not have any specific election policy in relation to India’s universal ID numbering system (UID), and so is not committed to scrapping it. BJP Ministers have floated a possible merger of the National Population Register (NPR) being developed by the Registrar General of India (RGI) and the UID. Expanded use of personal identifiers such as the UID are one reason the Notes to the draft 2014 Bill say ‘a need has been felt’ for data privacy legislation. It remains a strong possibility that these two issues will be dealt with together.


'Injunctions contra mundum: The Ultimate Weapon in Containment' by Jeff Berryman in (2014) 26 Intellectual Property Journal 287 argues
Over the last fifteen years English courts have developed the injunction contra mundum, one made against all the world and used primarily to prevent infringement of privacy and breaches of confidence. The order has attracted recent criticism because it is frequently sought by celebrities to suppress publicity about their private and family life. Such an order intersects a number of substantive areas of law, including; the developing tort of privacy; freedom of speech, the Internet and prior restraint; the open court principle; defamation; and the ability to enforce court orders across jurisdictional boundaries. This article addresses the difficulties of introducing such an injunction into Canadian common law and whether it is necessary.

Employment Privacy

'Re-Conceptualising Privacy and Discrimination in an Age of Talent Analytics' by Mark Burdon and Paul David Harpur in (2014) 37(2) University of New South Wales Law Journal 679 argues
Employee recruitment and retention have always been contentious and complex decisions for employers. Historically, hiring was based on social processes of human interaction – a prospective employee traditionally submitted a job application and a manager would decide whether or not to call the person in for an interview. The traditional process is by no means perfect, as exemplified in Michael Lewis’s Moneyball. The subsequent success of the Oakland A’s is often touted as a justification for the use of ‘big data’ in the workplace, or ‘talent analytics’ as it is commonly called. Talent analytics has opened up new employer opportunities which use predictive techniques to improve the accuracy of recruitment and retention decisions. Moneyball encapsulates the start of a journey that is gathering increasing momentum. We are entering an age of predictive recruiting and retention which is challenging and changing the foundations of employee selection, with many potential positive benefits for both employers and employees. However, we contend that negative implications can arise through potential forms of discriminatory action that are very different to traditionally constructed forms of discrimination based on certain attributes, such as age, disability, race or sex. Discrimination in the talent analytics era can still be founded on these attributes but discriminatory decisions can now also be founded on random attributes generated through endless correlations of predictive patterns and segmentations founded on prescriptive actions. In order to find a balance between the benefits and the potential negative impacts of talent analytics, we put forward a new conceptual framework, an info-structural perspective which affords the viewer a different lens to consider these new problems and thus moves discussion away from the confines of first generation anti-discrimination and information privacy laws. We then suggest that new forms of info-structural due process could ameliorate issues of structural discrimination through the greater integration of information privacy law and anti-discrimination law.

08 October 2014

Moral Rights in Photographs

In Francis v Allen & Unwin [2014] FCA 1027 the Federal Court of Australia has considered an application for summary judgment regarding a copyright and moral rights infringement claim.

Applicant Janette Francis brought proceedings against publisher Allen & Unwin over a photograph in Brothers in Arms: The Inside Story of Two Bikie Gangs, a 1989 book by Lindsay Simpson and Sandra Harvey about the 1984 ‘Milperra Massacre’. Francis claimed that publication of the photograph infringed her copyright and moral rights. The caption of the photograph - "Leanne Walters, shot dead" - indicated that its subject was 15-year-old Leanne Walters, killed in the bikie shooting. The source of the photograph (and all accompanying photographs) is said to be the NSW Police Department.

Francis claimed that she had taken the photograph of herself in a photo booth when she was 27 (ie it was not of Walters) and that the photograph had been used without her permission and without attribution (hence the moral rights claim).

The respondents sought a summary judgment or an order striking out the Francis’s statement of claim, contending that the assertion regarding the photograph was fanciful, implausible, improbable and contrary to all available evidence. The proceeding had no reasonable prospect of success, and was frivolous and vexatious, given that there was no real question of fact as to identity.

In rejecting those contentions the FCA cited Spencer v Commonwealth of Australia (2010) 241 CLR 118 in which French CJ and Gummow J indicated that where there are factual issues capable of being disputed are in dispute the Court should not give summary judgment to the respondent merely because of a view that the applicant is unlikely to succeed on the factual issues. In doing so, it considered its power to give summary judgment for one party where it is satisfied that the other party has no reasonable prospects of success.

The FCA in rejecting the application for summary judgment held that in this instance there was a factual issue capable of being disputed and in dispute. The application by Allens was insufficient to establish the onus of proof for summary dismissal. Allens provided no evidence as to the critical issue of who took the photograph or the circumstances in which it was made. They did not provide sworn evidence from Walters’s father as to his belief that the photograph depicted his daughter. On the other hand Francis provided evidence asserting the photograph was a self portrait and the circumstances in which it was taken, along with a written statement from a former husband that was capable of corroborating her assertions.

The FCA acknowledged that Francis’s claim may be "irrational in some respects", appear to "lack credibility" or involve an "overreaction" to publication of the image. However the Court noted that questions of credibility were inherently unfit for summary resolution. It was not persuaded that the case should not proceed to trial.

The judgment states that evidence by Allens features -
  • references to websites operated by Ms Francis; 
  • a hearsay account of Ms Francis driving a vehicle in the streets of Campbelltown painted with the words “Walters is a liar”, which was apparently reported to the police; 
  • a reference to an action brought by Ms Francis in the Equal Opportunity Tribunal of South Australia against Christies Beach Medical Centre, the relevance of which is opaque; 
  • and a reference to a proceeding in the Supreme Court of South Australia in which Ms Francis sued Allen & Unwin over its use of the photograph, in which she maintained it was a photograph of her. 
The judgment states that -
The Supreme Court of South Australia struck out Ms Francis’s statement of claim and dismissed her action with costs when she failed to appear at a directions hearing. According to an account of what occurred from the lawyers who appeared, presumably as agents for Allen & Unwin’s solicitors, the orders were made because the statement of claim did not disclose a reasonable cause of action and was “vexatious” and because the court considered that Ms Francis was unable to plead “a cause of action known to law on which there could be a fair trial”. The respondents drew particular attention to the following two orders Ms Francis sought in that proceeding:
Urgently, I want the foreign objects of technological advancement hindering me and hurting me internally and externally, removed by qualified medical personnel not affiliated with any person involved with the 1984 murders of the seven people in Milperra as previously stated, and to be funded by Defendants. 
I want the Allen & Unwin Pty Ltd directors’ to experience exactly what they have caused me, I want them bankrupt, penniless, with no future, lousy health, and no help, and no support, and tortured for at least 22 uninterrupted years, and a criminal record.
The FCA judgment also referred to -
statements made on websites operated by Ms Francis in which she claimed, amongst other things, that:
  • Allen & Unwin, the Walters family, the NSW Government, the Commonwealth Government, the Australian Labor Party and the Liberal Party of Australia are engaged in a criminal partnership by using her photograph and causing the book to be published.
  • Allen & Unwin had “totally offended [her] and was allowed to get off without any penalty whatsoever after they breached all the Australian laws of copyright and libel” and that it was “[her] turn to display photographs of the types of people who do this in Australia and are able to pay the Judge enough cold hard rewards to successfully buy their way out of being sued in court using diversionary tactics”.