13 December 2014


'Enhancing Press Freedom through Greater Privacy Law: A UK Perspective on an Australian Privacy Tort' by Paul Wragg in (2014) 36(4) Sydney Law Review comments 
In light of previous inquiries identifying areas of concern in Australia’s privacy law provisions, the Australian Law Reform Commission (‘ALRC’) recently devised a new tort that, if implemented, would better protect individuals from serious invasions of privacy. Although the tort was designed principally with new technologies in mind, there has been vociferous concern that such a tort might unduly inhibit press freedom. This response is familiar to United Kingdom (‘UK’) commentators who have seen the press, in particular, react similarly to common law developments in privacy law. Yet that experience has not been entirely unfavourable to the UK press; indeed, the jurisprudence discloses a generous treatment of the term ‘public interest’, which has kept interference with press activity to a minimum. In light of the reference to press freedom within the ALRC’s proposed tort, and given the absence of an express constitutional provision protecting Australian press speech, this article argues that the UK experience shows how, counterintuitively, the ALRC’s proposed tort could actually enhance, rather than diminish, press freedom protection in Australia.


'Nothing to Fear or Nowhere to Hide: Competing Visions of the NSA's 215 Program' by Susan Freiwald in (2014) 12(2) Journal of Telecommunications and High Technology Law comments 
Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance issues that were remedied by a well-functioning oversight regime. Program opponents see the same program as unauthorized and unconstitutional, yielding minimal benefits, and subject to significant abuses and insufficient oversight. Part of the disjunction reflects differing interpretations of the law, but much of it stems from a deep-seated lack of trust. For example, surveillance proponents tend to view civil libertarian activists as motivated by ideology and not amenable to persuasion by facts or reason. They find frustrating the lack of credit they get for their own efforts to protect civil liberties. Civil libertarian activists regard secret surveillance as a request that they merely “trust the government.” They cite current and historical abuses of the surveillance power in this country and elsewhere as reason to refuse to do so. This paper discusses how each side’s lack of trust leads it to use the same words to mean entirely different things.
This essay proceeds in the following manner. Part I provides a brief overview of the 215 program. Part II compares the proponents’ cost-versus-benefit calculations to opponents’ calculations. Part III considers how differently each group assesses the legality of the 215 program, considering both statutory authorization and the relevant constitutional provisions. Part IV compares each side’s understanding of what it means to abuse the surveillance power, which depends crucially on the issues raised in the prior Parts. Because program opponents view it as ineffective and illegal, its very operation abuses civil liberties. Program proponents perceive no abuses when agents engage in legally authorized and justified surveillance. This essay concludes that whatever happens to the 215 program will not likely resolve the manner in which the program’s proponents and opponents talk past each other. Yet use of a common language could increase understanding, and even trust, and it would surely enhance opportunities for constructive engagement among the parties themselves and the greater public.


'High Court Negligence Cases 2000–10' by Pam Stewart and Anita Stuhmcke in (2014) 36(4) Sydney Law Review reports a study of High Court negligence decisions from 2000 to 2010.
The research establishes that the common law of negligence has been evolving toward the imposition of greater personal responsibility on plaintiffs in most circumstances, but especially in recreational activity cases. Further, the study reveals a substantial level of protection for public authority defendants at common law, challenging the assumptions that underpinned the significant statutory protections that were enacted in Australian jurisdictions from 2002 onwards. The data analysis therefore corroborates previous work of Australian tort law scholars and contradicts the claims made by policymakers at the start of the 21st century about the urgent need for tort law reform. Given that there has not been an empirical study of 21st century High Court negligence decisions to date, the study provides a foundation for future assessment of the effect of Australian tort law reform legislation.  


'Written Constitutions and the Politics of Recognition: Symbolism and Substance' by Dylan Lino comments
Written constitutions are a major site of contestation in the political struggles by marginalised groups to have their identities respected within public institutions – the ‘politics of recognition’, in Charles Taylor’s influential coinage. I argue in this paper that, in struggles over recognition, two dimensions of written constitutions are pertinent. The first – the constitutional dimension, which is the primary role of written constitutions – is to distribute and limit the most fundamental aspects of public power within the state. Accordingly, written constitutions may be amended to redistribute public power in a way that better respects a given group’s identity. A second element of written constitutions – a non-constitutional, symbolic dimension – is their status as cultural symbols of the polities to which they are attached. Constitutional amendments recognising identity groups may thus seek to render these symbols more inclusive and representative of the polity overall.
The politics of constitutional recognition have played out in recent years in Australia in relation to the nation’s Indigenous peoples, the Aboriginal and Torres Strait Islander peoples. Though many proposals for constitutionally recognising Indigenous peoples have been controversial, one sort of reform has garnered significant mainstream political support. This kind of reform entails the insertion of explicit but legally ineffectual mentions of Indigenous peoples within either a preamble or discrete section of the constitutional text. Several amendments along these lines have already been made to constitutions at the State level, and there will likely be a similar proposal put forward at the national level within the next few years.
Though these reforms take place within written constitutions, there is nothing particularly constitutional about them. Having no effect on the distribution of public power within the Australian legal order, such reforms focus entirely on the non-constitutional symbolic function of written constitutions. In this paper, I argue that attending to the expressive dimension of written constitutions should not be discarded from the politics of recognition: symbolic recognition in written constitutions can have salutary effects for those being recognised. However, as the Australian example shows, constitutional recognition that is purely symbolic can be deficient in two major ways. First, denying such forms of recognition any substantive constitutional function can have negative symbolic effects in itself. Second, the pursuit of wholly symbolic recognition in written constitutions often neglects valid grievances about how power is wielded by the state over the group in question. For both problems, the solution is pursuing substantive forms of constitutional recognition.


'A Homeless Bill of Rights (Revolution)' by Sara Rankin in (2015) Seton Hall Law Review (Forthcoming) examines
an emerging movement so far unexplored by legal scholarship: the proposal and, in some states, the enactment of a Homeless Bill of Rights. This article presents these new laws as a lens to re-examine storied debates over positive and social welfare rights. Homeless bills of rights also present a compelling opportunity to re-examine rights-based theories in the context of social movement scholarship. Specifically, could these laws be understood as part of a new "rights revolution"? What conditions might influence the impact of these new laws on the individual rights of the homeless or the housed? On American rights culture and consciousness?
The article surveys current efforts to advance homeless bills of rights across nine states and the U.S. territory of Puerto Rico and evaluates these case studies from a social movement perspective. Ultimately, the article predicts that these new laws are more likely to have an incremental social and normative impact than an immediate legal impact. Even so, homeless bills of rights are a critical, if slight, step to advance the rights of one of the most vulnerable segments of contemporary society. Perhaps as significantly, these new laws present an opportunity for housed Americans to confront our collective, deeply-rooted biases against the homeless.
Rankin comments -
A new movement is afoot: in June 2012, Rhode Island passed the mainland’s first Homeless Bill of Rights. State legislatures in California, Hawaii, Illinois, Connecticut, Oregon, Vermont, Missouri, and Massachusetts quickly followed suit, introducing their own bills. So far, Connecticut and Illinois have already joined Rhode Island with freshly enacted homeless bills of rights. Other states are actively evaluating the prospects for such legislation.
Homeless bills of rights articulate a vibrant range of rights and remedies. For example, some provide the right to shelter, sustenance, or health care, while others incorporate rights against employment discrimination or police harassment. Some provide civil remedies for those whose statutory rights have been violated; at least one vests the creation, implementation, and enforcement of rights in an administrative entity. Although these new laws illustrate varying substantive provisions and strategic compromises, they share the overarching goal of improving the lives of homeless Americans.
The emergence of this new legislative tool raises compelling questions. What exactly is a homeless bill of rights? What is its purpose? What are the differences and similarities across jurisdictions? What types of rights are or should be covered? How, if at all, are these rights different than those afforded to housed individuals? Do these laws announce any new rights? Or are they merely statutory reiterations of constitutional or civil rights already afforded to the homeless—or for that matter, to housed individuals? If homeless bills of rights are only statutory reiterations of already existing rights, how might these laws meaningfully improve the lives of homeless people?
On the other hand, if homeless bills of rights actually purport to create new rights for homeless people—such as positive social welfare rights—should advocates fight for judicial enforcement provisions? If a right is not judicially enforceable, is it really a right at all? Many legal scholars and homeless advocates contend that judicial enforceability is the sine qua non of a right. Indeed, virtually all homeless bill of rights so far advanced on the mainland United States explicitly provide for civil remedies. But others dispute the necessity of judicial enforceability to the realization of a right, instead emphasizing the realization of rights through agency implementation. After all, judicial rulings do not necessarily translate to agency implementation; to the contrary, judicial enforcement may be ineffectual or even provoke legislative repeal of a law. Accordingly, should homeless advocates expend significant resources to ensure homeless bills of rights contain civil remedies provisions? What approach best ensures the implementation and realization of rights for homeless Americans?
By their very nature, homeless bills of rights invite such robust rights-based inquiries. Ultimately, the value of a homeless bill of rights must be measured by its potential contribution to the lives of homeless Americans. Of course, any ideal outcome would significantly revise how American society perceives, values, and incorporates homeless people—the law would be part of a social movement that transforms relationships between the housed and homeless from exclusive to inclusive. In this respect, homeless bills of rights might be understood as part of an effort to naturalize a normative vision. Social movement theory can help to explain how such a normative vision might become a reality.
This Article is the first to identify and analyze the new, growing phenomenon of homeless bills of rights in the United States. The Article is enriched with feedback and insights of homeless advocates nationwide, the result of dozens of interviews with advocates inside and outside of active jurisdictions. Part I introduces the specific context of homeless advocacy, spotlighting key issues with homelessness in the United States. Part II surveys case studies of current efforts to enact homeless bills of rights in nine states and Puerto Rico. This section briefly describes the history, content, and status of these bills, and draws substantive and strategic comparisons among these case studies. Part III introduces a rights revolution framework. Specifically, this section surveys rights-based theories and their application to social movement “rights revolutions.” It applies a rights revolution framework to these case studies and analyzes the potential challenges and benefits of this new legislative tool, both from a practical and theoretical perspective. The Article concludes that homeless bills of rights are more likely to have an incremental social and normative impact than an immediate legal impact. Even so, these new laws are an important step toward a long-overdue rights revolution for one of America’s most vulnerable populations. Perhaps as significantly, these new laws present an opportunity for housed Americans to confront our persistent, deeply-rooted biases against the homeless.

Animal Citizenship and Theriocide

'Do Animals Need Citizenship?' (Georgia State University College of Law, Legal Studies Research Paper No. 2014-36) by William A. Edmundson comments that
 An ambitious proposal by Sue Donaldson and Will Kymlicka seeks to break out of an impasse that animal-rights advocacy seems to have reached. They divide the animal kingdom into three categories and distribute rights accordingly. Domesticated animals are to be treated as citizens enjoying the same rights and duties as human citizens (adjusting for relative differences in ability, just as we do for children and the severely cognitively handicapped). Wild animal species are to be treated as sovereign nations having rights to their territories. Liminal animals are to be treated as resident aliens. This article is a critique of this "Citizenship Theory" of animal rights. One theme of the critique questions whether citizenship and sovereignty are in fact doing the normative work that Citizenship Theory represents them as doing. Another theme questions whether rights of citizenship and sovereignty can be of use to the animals Citizenship Theory would bestow them on.
Edmundson argues
Animals need rights. The value a right has, for the one holding it, derives mostly from the set of duties it imposes on others. But the value of a right is not exhausted by that set. A set of “indirect” duties can protect a variety of animal interests, but it cannot coherently protect an interest in maintaining dignity. Someone to whom a duty is owed, i.e., is directed, occupies a higher plane than one who is the mere object of an impersonal duty. Rights, and their correlative directed duties, respect the dignity of the right holder in a special way. Rights are also more amenable to enforcement by proxies than indirect duties are. A proxy speaks for someone, and not merely for something. Rights, in contrast to mere collections of directed duties, serve a generative function. The set of duties correlative to a right is open-ended; and sensitivity to another’s rights means recognition of a host of directed duties that might otherwise go unnoticed. Finally, rights serve a fallback function, which comes into play when sympathy and affection are attenuated or absent.
But do animals need the rights associated with citizenship? Do they need the right to exercise sovereignty over a territory? Sue Donaldson and Will Kymlicka have argued that these distinctively political rights can not only be held by animals but can also be distinctively beneficial to them. Moreover, these rights can be forensically effective instruments for animal-welfare activism (Donaldson and Kymlicka 2011, 2013; Kymlicka and Donaldson 2014).
Donaldson and Kymlicka ruefully observe that advocacy of universal animal rights on the model of universal human rights has gotten traction only among certain activists and academics. It has “virtually no resonance amongst the general public” and remains “a political non-starter” (2011, 5,6), even though electorates have increasingly shown a degree of worry about the treatment of animals. Apart from scattered, incremental reforms, the picture is depressing: an “Eternal Treblinka” (2011, 2) whose moral and political superstructure remains largely unquestioned.
Why the impasse? Selfishness (both individual and corporate), selective blindness, and cultural tradition are contributing factors, but Donaldson and Kymlicka argue that the way animal rights theory, or “ART”—their acronymic designation for a certain typical development of animal rights theory—has been framed is itself an important obstacle. The “classical model of ART” recognizes “only one acceptable relationship to animals: treating them ethically means leaving them alone, not interfering with their negative right to life and liberty” (2011, 9). Typical negative rights are the right not to be murdered, not to be raped, not to be experimented on, while a typical positive duty would be to render aid to someone who is in distress, and a typical relational duty would be a duty to support one’s family and to stick up for one’s friends. The nearly exclusive theoretical concentration on universal negative rights for animals contrasts to the human context, in which, they claim, “the vast bulk of reasoning and moral theorizing concerns not [the] universal negative rights but rather the positive and relational obligations we have to other groups of humans” (2011, 6). Many of the rights and duties humans owe each other arise out of relationships: parent and child, teacher and student, master and apprentice, and the typically asymmetrical dependency of latter on the former gives normative content to the positive duties—and correlative positive rights—that arise. So, they have urged, let’s talk about positive and relational 3 rights for animals.
The Relational Turn
At first, citizenship rights for animals seems to be an odd prescription. If a short list of negative rights for animals is a hard sell, one would expect that enlarging the list to include positive rights would be harder still. But what Donaldson and Kymlicka propose is not a wholesale enlargement. (In effect, as I point out below, the position they advocate contracts the scope of both positive and negative rights that wild animals might enjoy.) Rather, the relational turn begins by articulating certain underlying joints in the moral landscape. The first step is to extract three salient, morally relevant categories from the manifold variety of human-animal interactions. There are domesticated animals, that we have bred to be dependent upon us and live amongst us, such as household pets. There are wild animals, who wish to, and are capable of, living apart from us, and with whom we have little interaction unless we are animal ethologists, zoologists, or zookeepers. Finally, there are liminal animals, such as pigeons, raccoons, squirrels, and feral cats, that live amongst us but do not normally affiliate with or depend upon particular humans, although they are dependent upon access to human settlements and the food waste they produce and the niche habitats they provide. Donaldson and Kymlicka propose to rescue ART by structuring it around these three categories.
The rescue is completed by making a second turn, from the relational to the political philosophical. Because domesticated animals live among us and must for the most part continue to do so, they are to be treated as citizens, enjoying the same rights and duties as human citizens — adjusting of course for relevant differences in ability, just as we do for children and the severely cognitively handicapped. Wild animals species are to be treated as sovereign nations having rights to their territories. Liminal animals are to be treated as resident aliens. All three categories are protected by certain universal negative rights; but integrated with these are “differentiated positive rights” (2011, 11) that largely track the three categories. This, in a nutshell, is the “expanded citizenship-based ART” (2011, 15), or “the citizenship approach” (2011, 16) Donaldson and Kymlicka propose. I will refer to it as Citizenship Theory.
The Citizenship Theory crucially depends on the “citizenship logic” (2011, 15) that analogizes a threefold division of domesticated, liminal, and wild animals to categories based on sovereignty and citizenship. To get a clearer sense of what citizenship logic is intended to do, it helps to first review what Donaldson and Kymlicka see as ART’s weaknesses. Classical ART gravitates toward two particularly extreme and therefore vulnerable positions. The first is an “abolitionist” position on domesticated animals. Interaction between humans and the animals they domesticate is inevitably exploitative and unjust, according to ART. But domesticated animals are, by definition, dependent upon human interaction for their continued existence. Therefore, the abolitionist wing of ART calls for the (humane) extinction of all species of domesticated animals. That puts an end to unjust exploitation, but it also puts an end to all dogs, cats, horses, pigs, chickens and other domesticated animals that cannot be returned to a viable wild state. Donaldson and Kymlicka argue that the abolitionist position not only alienates many of ART’s strongest allies, it heedlessly overlooks the possibility of citizenship for domesticated animals.
ART’s second unsatisfactory position is a “let them be” injunction with respect to wild animals. This position may resonate with a popular “laissez faire intuition” about animals of species that typically avoid human contact with humans. But it does not allow for positive duties toward wild animals; nor could it, except in an ad hoc way, provide limits on any such positive duties. ART thus gets caught in a “‘too little—too much’ dilemma” (2011, 11): either stick with a narrow negative-rights conception of the universal right to life, and turn a blind eye to habitat destruction and ecological spillovers that do not injure identifiable individual creatures. Or broaden the right to life in wholesale fashion, and license massive wholesale intervention and management of wild species, going even as far as to try to prevent or extinguish predatory behavior. Citizenship Theory unravels the dilemma: it supports positive rights but embeds them in a principled structure that defines sensible conditions and limits.
'Theriocide: Naming Animal Killing' by Piers Beirne in (2014) 3(2) International Journal for Crime, Justice and Social Democracy 49-66 comments
In this essay I recommend ‘theriocide’ as the name for those diverse human actions that cause the deaths of animals. Like the killing of one human by another, theriocide may be socially acceptable or unacceptable, legal or illegal. It may be intentional or unintentional and may involve active maltreatment or passive neglect. Theriocide may occur one-on-one, in small groups or in large-scale social institutions. The numerous and sometimes intersecting sites of theriocide include intensive rearing regimes; hunting and fishing; trafficking; vivisection; militarism; pollution; and human-induced climate change. If the killing of animals by humans is as harmful to them as homicide is to humans, then the proper naming of such deaths offers a remedy, however small, to the extensive privileging of human lives over those of other animals. Inevitably, the essay leads to a shocking question: Is theriocide murder?. 
... The variety of ways that we kill animals seems without limit. Animals can be boiled, cooked, crushed, electrocuted, ensnared, exterminated, harpooned, hooked, hunted, injected with chemicals, netted, poached, poisoned, run over, shot, slit, speared, strangled, stuck, suffocated, trapped and vivisected. However, operating in tandem with the strategic invisibility of animals in slaughterhouses is the increasing elusiveness of their deaths in various discourses of lethality. Euphemisms rule here. Varying according to such factors as the social class of the hunters and the species of the hunted, many hunting discourses, for example, describe the dead bodies of ‘game’ as the ‘catch’, ‘bag’, ‘yield’, ‘take’ and ‘harvest’. Specialty hunting often requires specialty language. Among the euphemisms for the killing of foxes, for example, hunters refer to the imminent killing or the moment of killing of their quarry as ‘to account for’, ‘bowl over’, ‘break up’, ‘bring to book’, ‘chop’, ‘deal with’, ‘punish’, ‘crush’ and ‘roll over’. Heads of killed foxes are named ‘masks’, their paws ‘pads’ and their tails ‘brushes’. Animals dissected and killed during ‘scientific experimentation’ and ‘vivisection’ become ‘sacrifices’, ‘subjects’, ‘objects’ and ‘products’. Animals killed by the military are referred to as ‘collateral damage’. Animals are ‘humanely’ killed and ‘put to sleep’ and ‘euthanised’ in ‘shelters’ under the guise of ‘pest control’ and ‘nuisance avoidance’. 
Some killing euphemisms do duty in different discourses. Among these are ‘cull’, ‘catch’, ‘crop’ – both ‘live’ and ‘dressed’ – ‘harvest’ and ‘sacrifice’. ‘Cull’, for example, is used by ecologically‐ minded hunters to refer to the killing and ‘removal’ of weaker animals in a herd or to police and ‘eliminate’ undesirable predators which threaten more desirable species. In this capacity ‘cull’ competes with ‘animal population control’, ‘artificial selection’, ‘nuisance wildlife management’, ‘selective breeding’ and ‘game management’. Sometimes, as well, culling or ‘putting down’ is used as Orwellian‐speak for the killing of cattle infected with Bovine Spongiform Encephalopathy. A harvest also refers to the killing of fish or to the number of animals killed, as does a ‘strike’. When the harvest is coupled with or intersects self‐stated ecological practices, the killing of animals is termed ‘sound’ or ‘responsible’ or ‘ethical’ or ‘sustainable’. When human intervention practices lead to the killing of an entire species, such as happened with mammoths and passenger pigeons, animals become ‘extinct’, though ‘speciescide’ or, even, ‘genocide’ might be a better term here. 
 The recitation of these euphemisms here is not a prelude to some immediate moralizing on the wrongfulness of animal killing. Rather, it is intended as a step on the path towards greater honesty in how we talk about our killing of animals. My present aim, therefore, is to name the diverse sites of animal killing as theriocide. This I begin by juxtaposing how we presently talk about humans killing humans, on the one hand, with how we describe humans killing animals, on the other. 
Further definition of theriocide 
Theriocide refers to those diverse human actions that cause the deaths of animals. As with the killing of one human by another (for example, homicide, infanticide and femicide3), a theriocide may be socially acceptable or unacceptable, legal or illegal. It may be intentional or unintentional. It may involve active maltreatment or passive neglect. Theriocides may occur one‐on‐one, in small groups or in large‐scale social institutions. The numerous sites of theriocide include intensive rearing regimes; hunting and fishing; trafficking; vivisection; militarism; pollution; and human‐induced climate change. 
Theriocide is the killing of an animal by a human. It combines the ancient Greek ... (an animal other than a human) and the Latin cædere. ..., first, is a prosaic variant of θηρ, which seems originally to have meant a beast of prey. Later, ... was extended to other animals, probably including wild and domesticated animals and metaphorical monsters. ‘Cædere’ denotes the action of cutting or felling or killing. It is the source of the French word abattoir, where the felling of trees is used as a euphemism for both the rendering of animals to a horizontal position and also the site of their slaughter. 
It is impossible to know with certainty when and where any given word originated. As a word, theriocide has been used at least four times previously (Beirne 2007: 63, 2009: 17, 182; Nihan 2007: 407‐08, 413 n.76; Schwartz 1996: 7, 31). 
In my own case, in 2007, it was inserted, vaguely and with little thought, into a critical assessment of evidence on the progression thesis: namely, the claim that there is a link of escalation or graduation between animal cruelty and violence between humans. My argument, which still stands, was meant not only to welcome the scholarly and activist interest in individualized cruelty to animals but also to problematize a widespread reluctance for investigation of those institutionalized cruelties where theriocide is committed on a much greater scale. 
Quite coincidentally, later in the same year, the rabbinical scholar Christophe Nihan used ‘theriocide’ as his translation of the Hebrew phrase for ‘wrongful animal killing’ (2007: 408; and see Schwartz 1996: 7). Nihan’s choice of theriocide stemmed from his interpretation of the strictures in Genesis 9: 4‐6 and Leviticus 17: 3‐4 against the shedding of human and nonhuman blood. These rules entailed, on the one hand, that any wrongful killing of humans was condemned as homicide and subject to divine sanction by the Hebrew god Yahweh. On the other, the judgment of an animal’s death as wrongful killing – that is, as theriocide – was limited to the profane sacrifice of three species of domestic quadrupeds: namely, oxen, sheep and goats (Nihan 2007: 407‐08 and 413 n.76; and see Milgrom 2008: 1456‐1457). (Interestingly, it is unclear in both Genesis and Leviticus and also in Nihan’s and Schwartz’s accounts whether or not the unlawful killing of animals was intended to be regarded as a lesser and lower‐key derivation of homicide laws.) 
Etymologically speaking, at least two sorts of objection may be made to the employment of theriocide in lethality discourse. Purists might object, for example, that theriocide is a hybrid and therefore inferior to constructions with simpler pedigrees. But stuffiness towards hybrids has been waning of late. None of us shudders very often or, at least, not for that reason, when we use words like television or criminology. Moreover, two other constructions can also be mentioned: ‘zoocide’ and ‘animalicide’. Against zoocide, first: on the one hand, though the ancient Greek 'zoon' means a living being, including an animal – as opposed to a plant, phyton – the verb with which it is cognate (zao) is also used for human life. In other words, zoocide locks us into a Wittgensteinian vicious circle that ironically privileges humans. On the other, though it has the apparent advantage of being very popular as the name of a site where animals are used as objects of spectacle and entertainment, ‘zoo’ is overloaded with cultural baggage. The would‐be ‘animalicide’, second, entails one of the same problems as zoocide: namely, that it refers both to humans and to animals other than humans. Worse still, animalicide would be an anthropocentric derivation from the Sanskrit origin of the word ‘animal’: namely, ‘that which is to be feared’. 
The number of other animals we humans kill seems limited only by technology and our own ingenuity. Among the major sites of theriocide are intensive rearing regimes; hunting and fishing; trafficking; vivisection; militarism; pollution; and climate change.

10 December 2014

Financial Systems Inquiry Final Report

The Financial Systems Inquiry (aka Murray Inquiry) has released its final report on how "to best position Australia’s financial system to meet Australia’s evolving needs and support economic growth". The report claims to offer "a blueprint for an efficient and resilient financial system over the next 10 to 20 years, characterised by the fair treatment of users" and reflecting "public interest: the interests of individuals, businesses, the economy, taxpayers and Government".

The report features 44 recommendations, reflecting an assessment that
Australia’s financial system has performed well since the Wallis Inquiry and has many strong characteristics. It also has a number of weaknesses: taxation and regulatory settings distort the flow of funding to the real economy; it remains susceptible to financial shocks; superannuation is not delivering retirement incomes efficiently; unfair consumer outcomes remain prevalent; and policy settings do not focus on the benefits of competition and innovation. As a result, the system is prone to calls for more regulation. To put these issues in context, the Overview first deals with the characteristics of Australia’s economy. It then describes the characteristics of and prerequisites for a well-functioning financial system and the Inquiry’s philosophy of financial regulation.
The report accordingly  focuses on seven themes-
The Overview deals with the general themes of funding the Australian economy and competition. The Inquiry has also made recommendations on five specific themes, which comprise the next chapters of this report:
•Strengthen the economy by making the financial system more resilient.
•Lift the value of the superannuation system and retirement incomes.
•Drive economic growth and productivity through settings that promote innovation.
•Enhance confidence and trust by creating an environment in which financial firms treat customers fairly.
•Enhance regulator independence and accountability, and minimise the need for future regulation.
These recommendations seek to improve efficiency, resilience and fair treatment in the Australian financial system, allowing it to achieve its potential in supporting economic growth and enhancing standards of living for current and future generations.
Its assumption is that
The financial sector plays a vital role in supporting a vibrant, growing economy that improves the standard of living for all Australians. The system’s ultimate purpose is to facilitate sustainable growth in the economy by meeting the financial needs of its users.
The Inquiry believes the financial system will achieve this goal if it operates in a manner that is:
•Efficient: An efficient system allocates Australia’s scarce financial and other resources for the greatest possible benefit to our economy, supporting growth, productivity and prosperity.
•Resilient: The financial system should adjust to changing circumstances while continuing to provide its core economic functions, even during severe shocks. Institutions in distress should be resolvable with minimal costs to depositors, policy holders, taxpayers and the real economy.
•Fair: Fair treatment occurs where participants act with integrity, honesty, transparency and non-discrimination. A market economy operates more effectively where participants enter into transactions with confidence they will be treated fairly. Confidence and trust in the system are essential ingredients in building an efficient, resilient and fair financial system that facilitates economic growth and meets the financial needs of Australians. The Inquiry considers that all financial system participants have roles and responsibilities in engendering that confidence and trust. ....
Central to the Inquiry’s philosophy is the principle that the financial system should be subject and responsive to market forces, including competition. However, competitive markets need to operate within a strong and effective legal and policy framework provided by Government. This includes predictable rule of law with strong property rights; a freely convertible floating currency and free flow of trade, investment and capital across borders; a strong fiscal position; a sound and independent monetary policy framework; and an effective, accountable and transparent government.
The Inquiry’s approach to policy intervention is guided by the public interest. Given the inevitable trade-offs involved, deciding how and when policy makers should intervene in the financial system requires considerable judgement. Intervention should seek to balance efficiency, resilience and fairness in a way that builds participants’ confidence and trust. Intervention should only occur where its benefits to the economy as a whole outweigh its costs, and should always seek to be proportionate and cost sensitive.
The report summarises the Inquiry's recommendations as follows
Resilience (pages 33–88)
1 Capital levels -- Set capital standards such that Australian authorised deposit-taking institution capital ratios are unquestionably strong.
2 Narrow mortgage risk weight differences -- Raise the average internal ratings-based (IRB) mortgage risk weight to narrow the difference between average mortgage risk weights for authorised deposit-taking institutions using IRB risk-weight models and those using standardised risk weights.
3 Loss absorbing and recapitalisation capacity -- Implement a framework for minimum loss absorbing and recapitalisation capacity in line with emerging international practice, sufficient to facilitate the orderly resolution of Australian authorised deposit-taking institutions and minimise taxpayer support.
4 Transparent reporting -- Develop a reporting template for Australian authorised deposit-taking institution capital ratios that is transparent against the minimum Basel capital framework.
5 Crisis management toolkit -- Complete the existing processes for strengthening crisis management powers that have been on hold pending the outcome of the Inquiry.
6 Financial Claims Scheme -- Maintain the ex post funding structure of the Financial Claims Scheme for authorised deposit-taking institutions.
7 Leverage ratio -- Introduce a leverage ratio that acts as a backstop to authorised deposit-taking institutions’ risk-weighted capital positions.
8 Direct borrowing by superannuation funds -- Remove the exception to the general prohibition on direct borrowing for limited recourse borrowing arrangements by superannuation funds.
Superannuation and retirement incomes (pages 89–142)
9 Objectives of the superannuation system -- Seek broad political agreement for, and enshrine in legislation, the objectives of the superannuation system and report publicly on how policy proposals are consistent with achieving these objectives over the long term.
10 Improving efficiency during accumulation -- Introduce a formal competitive process to allocate new default fund members to MySuper products, unless a review by 2020 concludes that the Stronger Super reforms have been effective in significantly improving competition and efficiency in the superannuation system.
11 The retirement phase of superannuation -- Require superannuation trustees to pre-select a comprehensive income product for members’ retirement. The product would commence on the member’s instruction, or the member may choose to take their benefits in another way. Impediments to product development should be removed.
12 Choice of fund -- Provide all employees with the ability to choose the fund into which their Superannuation Guarantee contributions are paid.
13 Governance of superannuation funds -- Mandate a majority of independent directors on the board of corporate trustees of public offer superannuation funds, including an independent chair; align the director penalty regime with managed investment schemes; and strengthen the conflict of interest requirements.
Innovation (pages 143–192)
14 Collaboration to enable innovation -- Establish a permanent public–private sector collaborative committee, the ‘Innovation Collaboration’, to facilitate financial system innovation and enable timely and coordinated policy and regulatory responses.
15 Digital identity --  Develop a national strategy for a federated-style model of trusted digital identities.
16 Clearer graduated payments regulation -- Enhance graduation of retail payments regulation by clarifying thresholds for regulation by the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority. Strengthen consumer protection by mandating the ePayments Code. Introduce a separate prudential regime with two tiers for purchased payment facilities.
17 Interchange fees and customer surcharging --  Improve interchange fee regulation by clarifying thresholds for when they apply, broadening the range of fees and payments they apply to, and lowering interchange fees. Improve surcharging regulation by expanding its application and ensuring customers using lower-cost payment methods cannot be over-surcharged by allowing more prescriptive limits on surcharging.
18 Crowdfunding -- Graduate fundraising regulation to facilitate crowdfunding for both debt and equity and, over time, other forms of financing.
19 Data access and use -- Review the costs and benefits of increasing access to and improving the use of data, taking into account community concerns about appropriate privacy protections.
20 Comprehensive credit reporting -- Support industry efforts to expand credit data sharing under the new voluntary comprehensive credit reporting regime. If, over time, participation is inadequate, Government should consider legislating mandatory participation.
Consumer outcomes (pages 193–232)
21 Strengthen product issuer and distributor accountability -- Introduce a targeted and principles-based product design and distribution obligation.
22 Introduce product intervention power -- Introduce a proactive product intervention power that would enhance the regulatory toolkit available where there is risk of significant consumer detriment.
23 Facilitate innovative disclosure -- Remove regulatory impediments to innovative product disclosure and communication with consumers, and improve the way risk and fees are communicated to consumers.
24 Align the interests of financial firms and consumers -- Better align the interests of financial firms with those of consumers by raising industry standards, enhancing the power to ban individuals from management and ensuring remuneration structures in life insurance and stockbroking do not affect the quality of financial advice.
25 Raise the competency of advisers -- Raise the competency of financial advice providers and introduce an enhanced register of advisers.
26 Improve guidance and disclosure in general insurance -- Improve guidance (including tools and calculators) and disclosure for general insurance, especially in relation to home insurance.
Regulatory system (pages 233–260)
27 Regulator accountability --  Create a new Financial Regulator Assessment Board to advise Government annually on how financial regulators have implemented their mandates. Provide clearer guidance to regulators in Statements of Expectation and increase the use of performance indicators for regulator performance.
28 Execution of mandate -- Provide regulators with more stable funding by adopting a three-year funding model based on periodic funding reviews, increase their capacity to pay competitive remuneration, boost flexibility in respect of staffing and funding, and require them to undertake periodic capability reviews.
29 Strengthening the Australian Securities and Investments Commission’s funding and powers -- Introduce an industry funding model for the Australian Securities and Investments Commission (ASIC) and provide ASIC with stronger regulatory tools.
30 Strengthening the focus on competition in the financial system -- Review the state of competition in the sector every three years, improve reporting of how regulators balance competition against their core objectives, identify barriers to cross-border provision of financial services and include consideration of competition in the Australian Securities and Investments Commission’s mandate.
31 Compliance costs and policy processes -- Increase the time available for industry to implement complex regulatory change. Conduct post-implementation reviews of major regulatory changes more frequently.
Significant matters (pages 261–276)
32 Impact investment -- Explore ways to facilitate development of the impact investment market and encourage innovation in funding social service delivery. Provide guidance to superannuation trustees on the appropriateness of impact investment. Support law reform to classify a private ancillary fund as a ‘sophisticated’ or ‘professional’ investor, where the founder of the fund meets those definitions.
33 Retail corporate bond market -- Reduce disclosure requirements for large listed corporates issuing ‘simple’ bonds and encourage industry to develop standard terms for ‘simple’ bonds.
34 Unfair contract term provisions -- Support Government’s process to extend unfair contract term protections to small businesses. Encourage industry to develop standards on the use of non-monetary default covenants.
35 Finance companies --  Clearly differentiate the investment products that finance companies and similar entities offer retail consumers from authorised deposit-taking institution deposits.
36 Corporate administration and bankruptcy -- Consult on possible amendments to the external administration regime to provide additional flexibility for businesses in financial difficulty.
37 Superannuation member engagement -- Publish retirement income projections on member statements from defined contribution superannuation schemes using Australian Securities and Investments Commission (ASIC) regulatory guidance. Facilitate access to consolidated superannuation information from the Australian Taxation Office to use with ASIC’s and superannuation funds’ retirement income projection calculators.
38 Cyber security -- Update the 2009 Cyber Security Strategy to reflect changes in the threat environment, improve cohesion in policy implementation, and progress public–private sector and cross-industry collaboration. Establish a formal framework for cyber security information sharing and response to cyber threats.
39 Technology neutrality --  Identify, in consultation with the financial sector, and amend priority areas of regulation to be technology neutral. Embed consideration of the principle of technology neutrality into development processes for future regulation. Ensure regulation allows individuals to select alternative methods to access services to maintain fair treatment for all consumer segments.
40 Provision of financial advice and mortgage broking -- Rename ‘general advice’ and require advisers and mortgage brokers to disclose ownership structures.
41 Unclaimed monies --  Define bank accounts and life insurance policies as unclaimed monies only if they are inactive for seven years.
42 Managed investment scheme regulation -- Support Government’s review of the Corporations and Markets Advisory Committee’s recommendations on managed investment schemes, giving priority to matters relating to: •Consumer detriment, including illiquid schemes and freezing of funds. •Regulatory architecture impeding cross-border transactions and mutual recognition arrangements.
43 Legacy products --  Introduce a mechanism to facilitate the rationalisation of legacy products in the life insurance and managed investments sectors.
44 Corporations Act 2001 ownership restrictions -- Remove market ownership restrictions from the Corporations Act 2001 once the current reforms to cross-border regulation of financial market infrastructure are complete.

ALRC Freedoms Inquiry

The Australian Law Reform Commission has released the 130 page issues paper regarding its inquiry into traditional rights and freedoms.

The iquiry is independent of the freedoms inquiry being undertaken by 'Freedoms Commissioner' Tim Wilson under AHRC auspices.

The ALRC has asked the following questions in its paper -
Freedom of Speech
Q2–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?
Q2–2 Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?
Freedom of Religion
Q3–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?
Q3–2 Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?
Freedom of Association
Q4–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of association is justified?
Q4–2 Which Commonwealth laws unjustifiably interfere with freedom of association, and why are these laws unjustified?
Freedom of Movement
Q5–1 What general principles or criteria should be applied to help determine whether a law that interferes with freedom of movement is justified?
Q5–2 Which Commonwealth laws unjustifiably interfere with freedom of movement, and why are these laws unjustified?
Property Rights
Q6–1 What general principles or criteria should be applied to help determine whether a law that interferes with vested property rights is justified?
Q6–2 Which Commonwealth laws unjustifiably interfere with vested property rights, and why are these laws unjustified?
Retrospective Laws
Q7–1 What general principles or criteria should be applied to help determine whether a law that retrospectively changes legal rights and obligations is justified?
Q7–2 Which Commonwealth laws retrospectively change legal rights and obligations without justification? Why are these laws unjustified?
Fair Trial Question
Q8–1 What general principles or criteria should be applied to help determine whether a law that limits the right to a fair trial is justified?
Q8–2 Which Commonwealth laws unjustifiably limit the right to a fair trial, and why are these laws unjustified?
Burden of Proof
Q9–1 What general principles or criteria should be applied to help determine whether a law that reverses or shifts the burden of proof is justified?
Q9–2 Which Commonwealth laws unjustifiably reverse or shift the burden of proof, and why are these laws unjustified?
The Privilege against Self-incrimination
Q10–1 What general principles or criteria should be applied to help determine whether a law that excludes the privilege against self-incrimination is justified?
Q10–2 Which Commonwealth laws unjustifiably exclude the privilege against self-incrimination, and why are these laws unjustified? 
Client Legal Privilege
Q11–1 What general principles or criteria should be applied to help determine whether a law that abrogates client legal privilege is justified?
Q11–2 Which Commonwealth laws unjustifiably abrogate client legal privilege, and why are these laws unjustified?
Strict and Absolute Liability
Q12–1 What general principles or criteria should be applied to help determine whether a law that imposes strict or absolute liability for a criminal offence is justified?
Q12–2 Which Commonwealth laws unjustifiably imposes strict or absolute liability for a criminal offence, and why are these laws unjustified?
Appeal from Acquittal
Q13–1 What general principles or criteria should be applied to help determine whether a law that allows an appeal from an acquittal is justified?
Q13–2 Which Commonwealth laws unjustifiably allow an appeal from an acquittal, and why are these laws unjustified?
Procedural Fairness
Q14–1 What general principles or criteria should be applied to help determine whether a law that denies procedural fairness is justified?
Q14–2 Which Commonwealth laws unjustifiably deny procedural fairness, and why are these laws unjustified?
Delegating Legislative Power
Q15–1 What general principles or criteria should be applied to help determine whether a law that delegates legislative power to the executive is justified?
Q15–2 Which Commonwealth laws unjustifiably delegate legislative power to the executive, and why are these laws unjustified?
Authorising what would otherwise be a Tort
Q16–1 What general principles or criteria should be applied to help determine whether a law that authorises what would otherwise be a tort is justified?
Q16–2 Which Commonwealth laws unjustifiably authorise what would otherwise be a tort, and why are these laws unjustified?
Executive Immunities
Q17–1 What general principles or criteria should be applied to help determine whether a law that gives executive immunities a wide application is justified?
Question 17–2 Which Commonwealth laws unjustifiably give executive immunities a wide application, and why are these immunities unjustified?
Judicial Review
Q18–1 What general principles or criteria should be applied to help determine whether a law that restricts access to judicial review is justified?
Q18–2 Which Commonwealth laws unjustifiably restrict access to judicial review, and why are these laws unjustified?
Others Rights, Freedoms and Privilege
Q19–1 Which Commonwealth laws unjustifiably encroach on other common law rights, freedoms and privileges, and why are these laws unjustified?