13 March 2015

Infrastructure Regulation Models

International Insights for the Better Economic Regulation of Infrastructure, the tenth paper in the the Australian Competition and Consumer Commissioner and Australian Energy Regulator Working Paper Series, is based on a major study of seven key infrastructure areas (energy, telecommunications, postal services, water and wastewater, rail, airports and ports) across seventeen countries.

The expectation is that the 108 page paper [PDF] will provide "insights for the continuous development of Australia’s regulation of infrastructure by comparing and contrasting regulatory design, processes and practices that exist around the world".

The ACCC comments that the countries "include the ten largest economies in the OECD and encompass a wide range of physical, economic and social conditions" and that
While this research suggests that Australia is in a comparatively good position with respect to regulatory design and practice, there are a lot of good ideas around that are worth considering. There are also some lessons of the other kind – things that should probably be avoided.
 Key insights are
  • Regulatory agencies that are independent of government are a common feature of the surveyed jurisdictions. However, the precise nature of ‘independence’ varies across countries, with Ministerial involvement in regulation evident in a few. 
  • Regulators in most surveyed jurisdictions are assigned efficiency-based objectives. Where regulators are given broader remits, such as the promotion of social and environmental objectives, conflicts with regulatory objectives often arise. 
  • The collection of regulatory responsibilities for a number of infrastructure industries in a single institution, at least to the sectoral level (for example, energy or communications), is common. 
  • In four of the five surveyed jurisdictions where national multi-sectoral regulators exist, the multi-sectoral regulator also has responsibility for competition enforcement. 
  • There appears to be a trend towards a single-institution model, with Spain and the Netherlands both combining regulatory and competition activities in recent years. 
  • Regulators are placing an increasing emphasis on establishing processes for more effective ‘engagement’ with consumers. 
  • The surveyed jurisdictions have different approaches to issues of information asymmetry between regulators and the businesses they regulate; balancing the trade-off between broad information collection powers, the protection of commercial-in-confidence information, and timeliness in regulatory processes. 
  • Innovations such as ‘alternative dispute resolution’ and negotiated settlements can potentially speed-up regulatory outcomes if they are successful in avoiding the full, formal regulatory process. However, speedier decision-making may come at the cost of diminished consultation and less transparency.


'Laughing at Censorship' by Laura E. Little in Yale Journal of Law and the Humanities comments
Comedians know from experience, and research supports the proposition, that an audience will predictably laugh when observing a censored statement (whether or otherwise obscured) — at least where the audience has been primed by the context to interpret the statement as comedic. In a society that condemns censorship as the enemy of our cherished right of free expression, one might reasonably ask how this can be: why is censorship funny?
This article begins by canvassing the various forms of censorship humor flourishing throughout United States culture in print, film, television, music, and internet entertainment. The article then probes mainstream condemnation of censorship — observing that individuals, law, and society all benefit from line drawing — even in the context of something as special as freedom of communication. Through the lens of interdisciplinary humor studies as well as First Amendment doctrine, the article explores the notion that the laughter emerging from comedy featuring censorship might be a “tell” that exposes this truth.
Many censorship jokes simply ridicule the censor. Others, however, are more nuanced, suggesting that censorship humor might provide unique emotional rewards ranging from a spark emitted from the benign danger of a censored joke, the creative enterprise of imagining what message was — to the comfort of mapping the line between the proper and improper. Audience laughter at censorship humor often appears to derive primarily from pleasure. It might also include a measure of anxiety, fear, and anger. That complexity, however, does not mitigate the possibility that humans occasionally see and enjoy some inherent value of censorship as separating “right” from “wrong.” ...
This article begins by canvassing a cross-section of censorship humor, illustrating the diverse art forms through which censorship evokes laughter. I then look at these examples through the work of interdisciplinary humor scholars that sheds light on the source of this laughter at speech restrictions. Next I reckon with the law: are there soft spots in First Amendment doctrine that actually dovetail with my analysis and embrace censorship? The project then turns to exploring whether the comedic value of censorship might emerge in part from human desires for boundaries, our love of structure, as well as the comfort and benefits that rules provide for human society. Finally, I explore the suggestion that we may be living in a ‘golden age’ of censorship humor, made possible by the internet, digital technology, and the relative freedom of communication available in democratic societies.
She suggests that
If indeed human nature favors the boundaries exposed by censorship and celebrated in censorship humor, why has censorship humor just now experienced such a remarkable surge? Shouldn’t we have observed a strong presence of this comedic genre throughout history in many different cultures? Two conditions in the contemporary era suggest insights. First is the boost to censorship humor from digital technology and internet communication capacity. Second is the possibility that censorship humor is a luxury stimulated by the free flow of information generally occurring in democratic societies, but unlikely to flourish where government tightly controls expression. If the current surge of censorship humor is tied to any of these conditions, any claims about the universal, timeless appeal of censorship humor may falter. Such a causal connection would also influence the lessons emerging about the optimum form and scope of speech constraints that censorship humor may offer us.
Censorship humor is filled with mash-ups, pixelation, bleeping, and non-human means to accomplish mimicry and obfuscation, thus suggesting that technology — particularly digital technology — inspires (or at least stimulates) its creation. Supporting this conclusion are the works of multifarious professionals documenting how digital technology makes possible innovation and creativity. The internet also promotes the creative work of comedians in wide-ranging ways: facilitating access to censorship humor’s raw material, making available applications and tutorials that assist in creating comedic content, expanding the audience for censorship jokes, and allowing independently created comedy to be aggregated and featured on central platforms. It seems clear, then, that both the internet and digital technology have indeed fuelled interest in censorship humor.
Yet jokes about speech regulation and repression have occurred over many decades in live theatre, hard copy novels and magazines, stand-up comedy, editorial cartoons, and bar stool conversations. They continue, in real time and in real space, today. Over-reliance on a causal relationship between censorship humor (on one hand) and technology/the internet (on the other hand) also invites potentially inaccurate conclusions that those who lack access to digital technology or the internet fail to enjoy or create censorship jokes. I am reluctant to conclude that we would lack robust censorship humor today if the internet and digital technology did not exist.
I also resist suggesting that vigorous censorship humor flourishes most in “free societies.” After all, one needs censorship to have censorship humor—or at least to have censorship humor that is meaningfully funny to the audience. One has to assume that societies subject to repressive policies on expression have plenty of raw material for that type of joke. In fact, they may very well produce more raw material for censorship humor than less restricted societies. As noted above, humor often serves as a safety value for anxieties and political pressures — relief presumably more needed in controlled societies than those that enjoy expressive freedoms. Repression may also cultivate provocative, edgy humor, a quality thought to boost comic enjoyment. For all these reasons, one might expect that there’s as much — if not more — censorship humor bubbling beneath the surface in authoritarian societies as in less controlled ones.
This intuition is supported by anecdotal evidence of flourishing political humor in a cross-section of societies known for official crackdowns on free expression, including contemporary Egypt, Russia (as well as the former Soviet Union), and Germany during the Third Reich. Some analysts have even observed that Egyptian political humor has reached beyond the borders of North Africa, providing not only the “foundational building block upon which humourists in Europe and the United States have been able to construct their own jokes concerning the Arab Spring,” but an accessible medium for understanding the social implications of Egypt’s revolutionary activity.
Striking evidence emerges from modern Russia of political humor specifically focused on censorship. A popular trope for this censorship humor concerns “mat,” or Russian obscenity. Sometimes referred to as an underground language or the “language of the street,” mat is entirely “rooted in sexuality.” Associated with lower classes as well as males for many decades, mat is now a powerful force in communication for both genders in all walks of life. Given the flexibility of the Russian language, including its highly synthetic grammar (which is produced largely by inflection), mat serves as a rich and adaptable vehicle for communication, taking on the cultural role of “linguistic theatre, verbal performance art.” Not surprisingly, given its potency and association with sexuality, mat has often served as a point of contention for Russian authorities. In fact, Vladimir Putin recently signed legislation outlawing swearing in movies, theatre productions, and concert performances.
This history of official attempts to suppress mat has produced at least three variations of censorship humor. Most importantly, the attempted suppression has made the use of mat itself a joke: the outlawing of mat together with its linguistic flexibility has made it an even more entertaining and flourishing component of oral conversation. The flexibility of mat and the Russian language also allows speakers to ‘push the censorship envelope’ through the use of puns that play on the similarity between mat and non-obscene words. For example, “watch the eggs!” apparently also means “watch the testicles.” Similarly, the expression “I don’t believe it!” can be used as a near pun for “F*** off!”
The third and final type of censorship humor uses straightforward references in jokes or quips to mat censorship and the effects of mat censorship. Not all references are contemporary. In fact, alluding to “sanctimonious censorship” of references to sexuality, Pushkin poetically described a “culture of women” missing their lady parts (or at least missing explicit reference to their lady parts in daily discourse). Bemoaning this absence, Pushkin writes: “The Tsar dispatches his heralds in search of them and after arduous ordeals they are recovered.” A more contemporary reference that plays on the connection between mat and the working class appears in the following joke highlighting the dramatic practical effect of censoring mat:
Everything is in order at the factory and the Party inspection commission is pleased. The inspectors have just one comment: too much mat is being used on the factory floor. The management takes note, and mat is banned in the factory. By the next inspection, the factory is falling far short of its quotas. Why? Because the workers had used obscene terms for all the mechanical equipment, and without mat they are no longer able to communicate.
As for Hitler’s Germany, a fairly well developed literature documents jokes during the Nazi era that mocked tyranny and repressive policies. Consider the following example of censorship humor from the era:
Whaddaya got for new jokes?
Three months in Dachau
As evidenced in these examples from Russia and Germany, humor takes on certain unique qualities when conceived within social and cultural contexts that suppress free expression. The first (most obvious) reason for this is pure survival. Take, for example, jests about censorship during the Third Reich, which had to be discreet, whispered, and/or oblique in order to avoid the strong arm of the regime. Consider the experience of comedian Werner Fink who became “a master of ambiguity. . . and was forced to adopt a number of tricks in order to conceal political messages in harmless packaging.” Fink even founded an association with a name appealing to Nazi brass, “Fighting Association for Harmless Humor,” which he used for cover of Nazi slogan parodies. Apparently the German audiences became “highly sensitized” to coded jokes and could find amusement in observing “invisible boundaries being crossed.”
Similarly, comedians in the Soviet Union had to mask their censorship critiques, as they were required to submit their performances to an official ‘department of jokes’ for preclearance. In Germany, the Soviet Union, and Russia, as well as Egypt, political humor often occurred orally in informal settings so as to avoid government detection.
A more complex reason why the form of censorship humor must change according to social and political context concerns the general mechanics of comedy. Comedy works best when it engages with the realities in the audience’s life. As with many creative endeavors, comedy also thrives on specific facts or ideas. The requisite specificity tends to flow most naturally where it draws from proximate surroundings — surroundings to which the audience relates. Accordingly, a society’s sensitivities will influence the vibrancy and tone of its jokes about censorship.
Likewise, a specific type of censorship will likely yield a specific type of humor, as evidenced by the use of mat in oral Russian society to satirize the censorship of mat in writings and public cultural productions.
Finally, censorship humor changes character, and can more specifically focus on censorship itself, where citizens know the precise details of what is censored. In wholly repressed societies, citizens might know generally that censorship occurs, but, if the strict censorship machine is really working, citizens will not know many specifics. By contrast, in democratic societies, citizens often know the character (and sometimes the identity) of suppressed information and may debate and joke about the propriety of its suppression. This is a luxury that may not be enjoyed under an authoritarian regime. In addition, the hidden character of totalitarian censorship may eliminate the opportunity for jokes to enlist the audience as co-author in joke-telling. In societies where censorship works by stealth, the opportunities to co-construct a censorship joke — and the joys associated with that creative endeavor — are likely reduced because the audience may have no clue about precisely what censorship has eliminated from the marketplace of discourse. As the experience in Russia, Nazi Germany, and Egypt attest, however, the human spirit is not so easily crushed, and other outlets are exploited for creating and communicating censorship humor.


In R (on the application of Catt) v Commissioner of Police of the Metropolis and another and R (on the application of T) v Commissioner of Police of the Metropolis [2015] UKSC 9 the UK Supreme Court (Lord Neuberger, Lady Hale, Lord Mance, Lord Sumption and Lord Toulson) has considered proportionality in UK police retention of data.

The case is an appeal from Catt, R (on the application of) v The Association of Chief Police Officers of England, Wales and Northern Ireland & Ors [2013] EWCA Civ 192

The Court noted that the power of the Metropolitan Police to retain data is controlled by both the Data Protection Act 1998 - broadly equivalent to the Privacy Act 1988 (Cth) - and the Police Act 1995 through a mandatory Code of Practice and associated Guidance.

The Code of Practice limits the handling of police information to “police purposes”, limits the circumstances under which data can be shared between police forces, and requires that information originally recorded for police purposes must be reviewed for deletion at prescribed intervals. The Guidance indicates that the reviews are to ensure that -
  • there is a continuing policing purpose for holding the record, 
  • the record is accurate, up to date and not excessive, 
  • there is compliance with the Data Protection Act, and 
  • the assessment of the risk level presented by the data subject is correct
Those statutes and Code coexist with respect for the private sphere under  the European Convention on Human Rights Article 8.

The police databases feature information about Catt, apparently sufficiently vigorous at 91 to participate in political protests, including some with a group identified as Smash EDO (some of whose members commit violent offences as part of their activism). EDO is a military technology enterprise with products that include bomb racks and other components.

The 2013 judgment states -
This is the judgment of the court on these two appeals which raise similar questions relating to the powers of the police to collect and retain information of a personal nature relating to members of the public. The first concerns Mr. John Catt, who over a long lifetime has been an ardent and frequent protestor against what he sees as a variety of forms of injustice. During that time he has attended many public demonstrations, most recently those organised by a group calling itself "Smash EDO", which campaigns against the operations on the outskirts of Brighton of a commercial manufacturer of weapons, EDO Defence Systems. Some of the core supporters of Smash EDO are prone to violence and criminal behaviour, but it is accepted that Mr. Catt has not been convicted of criminal conduct of any kind in connection with any demonstrations that he has attended. He seeks an order requiring the police to remove all references to him from the national database which contains reports on the activities of various protest groups including Smash EDO.
The second appeal concerns a lady identified for the purposes of the proceedings as Ms T. She was served with a warning letter following an allegation made to the police by one of her neighbours' friends that she had directed a single homophobic insult towards him. The letter informed her that an allegation of harassment had been made against her and that a repetition of her behaviour could involve the commission of a criminal offence. She hotly denies the allegation and seeks an order that the police destroy their copy of the letter and remove from their records all references to the decision to serve a warning letter on her. (She has also made a claim for damages, but it received little attention either at the hearing below or on the appeal.) However, on 23rd January 2013 the respondent's solicitor wrote to Ms T's solicitor saying that in the course of preparing for the appeal there had been a fresh assessment of the need to retain the information in question and that it had been decided that the record could be expunged. It follows that Ms T has now in substance achieved all that she set out to achieve, but in view of the importance of the issues to which the appeal gives rise we were invited to hear argument and determine them in the usual way and agreed to do so.
nclude bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
EDO’s products include bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
EDO’s products include bomb racks, arming units, and electrical connectors for military aircraft weapon systems - See more at: http://smashedo.org.uk/whoarewe/what-is-edo#sthash.IkDF9b1t.dpuf
The police "overtly collect information" from Smash EDO demonstrations, with information being retained even in instances where a violent crime did not take place. Events are recorded in 'Information Reports' on a Domestic Extremism Database, with  some individuals being the subject of a 'nominal record' on that database. The Court noted that at one point there was a nominal record and a photograph for  Catt (deleted in separate reviews before the proceedings began). Information about  Catt - including his presence, date of birth and address,  - features in over one hundred Information Reports concerned with the activities of other people (including at protests independent of Smash EDO).

Catt contended that the Metropolitan Police’s policy in retaining the data on a searchable database is unlawful as contrary to his rights under Article 8 of the ECHR. He accepted that it was lawful for the police to make records of protests as they occurred.

The judgment also considered the appeal by Ms T. She accepted that it was lawful for the police to make records of incidents but, like Catt, contended retention of those records was contrary to rights under Article 8.

She had allegedly made a homophobic comment to a neighbour’s friend in 2010, reflected in a Police Crime Reporting Information System (CRIS) record and a  Prevention of Harassment Letter from the Met alerting her to liability for arrest and prosecution if she harassed  the friend. The Met retains an electronic copy of the letter for seven years, with the associated CRIS item being preserved for for 12 years.

Claims by Catt and T were heard jointly in the Court of Appeal, which allowed both appeals.

In the current judgment the Supreme Court restored the first instance judgment regarding Catt 4-1 (Lord Toulson in dissent). The  Court unanimously restores the first instance judgment regarding T, with Hale,  Toulson and Mance indicating that the policy was lawful; Sumption and Neuberger indicated that the policy was not originally lawful but became so in this case.

Lord Sumption explained at paras 3 through 5 that the state’s systematic collection and storage in retrievable form even of public information about an individual is clearly an interference with private life under Article 8(1). The crux of the appeals was therefore whether retention can be justified under Article 8(2). In particular is the retention
  •  in accordance with the law and 
  • proportionate to its objective of securing public safety or preventing of disorder and crime. 
The  requirement under Article 8(2) for “in accordance with the law” necessitates that the applicable rules not be so indefinite or broad as to permit interference with the right on an arbitrary or abusive basis. Application of the rules must be reasonably predictable. Retention of data in UK police information systemsis in accordance with the law. Sumption noted that there are inevitably some discretionary elements but the scope of discretionary judgment is limited and subject to judicial review, with future disclosure being bounded by  comprehensive restrictions.

Lord Sumption held that the interference with Catt’s private life was minor. He indicated that
  • the data was personal but not intimate or sensitive,
  • the primary facts recorded have always been in the public domain,  
  • it is known that the Police record the data
  • there is no stigma attached to inclusion of Catt's information as part of reports primarily directed to the activities of other people
  • the data is usable and disclosable only for police purposes and in response to requests made by Mr Catt himself under the Data Protection Act
  • the material is reviewed for deletion according to 'rational and proportionate criteria' in the publicly available Code of Conduct and Guidance [
  • the longer-term consequences of restricting the availability of this method of intelligence-gathering to the police would potentially be very serious
  • the labour required to expunge data relating to people such as Catt would be disproportionate [29-31]. 
Lady Hale added that it would have been disproportionate to keep a nominal record about Catt as he had not been and is unlikely to be involved in criminal activity, with the keeping of such records potentially having a chilling effect on the right to engage in peaceful public protest.

Lord Toulson's reasoning is likely to attract most attention among privacy advocates in Australia. He would have dismissed the appeal in the case of Catt, being unpersuaded by the evidence from the Met as to the necessity for long-term retention of data about someone about whom the Police had   concluded was not acting violently. Toulson noted in particular that data about Catt’s attendance at mainstream political protest events was retained, commenting that he did not see how this could be thought necessary and proportionate. The evidence did not support the suggestion that it would be overly burdensome for the Police to have to review information about individuals such as Catt, particularly as the Police already conduct regular reviews.

In discussing proportionality in relation to T both Hale and Toulson indicated that retention of information about previous harassment complaints serves a vital purpose, particularly in domestic abuse cases. It is not unlawful for the Met to adopt a standard practice of retaining such information for several years, provided that the policy is flexible enough to allow for deletion when retention no longer serves any useful policing purposes.

Lady Hale noted that the Information Commissioner - a counterpart of Australia's national Privacy Commissioner - could not have secured the withdrawal of the Prevention of Harassment Letter (presumed to be the basis of the proceedings. Lord Sumption stated that the Prevention of Harassment Letter serves a legitimate policing purpose. The standard period of retention by the Met was wholly disproportionate to the specific incident in this case. T’s rights under Article 8 had however not been violated, because the data was in fact retained for only 2.5 years, a period not disproportionate but “at the far end of the spectrum”. Sumption indicated that the dispute could have been more appropriately resolved by applying to the Information Commissioner.

12 March 2015


In hhh the NZ Human Rights Review Tribunal in Hammond v Credit Union Baywide [2015] NZHRRT 6 has awarded Karen Hammond over NZ$168,000, a substantial increase on the previous highest award of NZ$40,000 in Hamilton v The Deanery (2003) (2003) HRRT 36/02 under the Health Information Privacy Code 1994.

Hammond provides a new benchmark for compensating harm caused by a breach of the Privacy Act for unlawfully disclosing personal information.

The award centres on the "severe humiliation" Hammond suffered through the actions of her former employer, NZCU Baywide.

The Tribunal indicated that NZCU Baywide breached principle 11 of the Privacy Act, ie an entity holding personal information shall not disclose the information to a person or body or agency.

In this instance the information related to a photo - taken at a private dinner party - that Hammond had shared among friends on Facebook. The photo featured a cake with written obscenities referring to NZCU Baywide. Hammond was in the process of leaving the credit union for another employer. Her Facebook privacy setting meant only those who had been accepted by Hammond as friends had access to the image, with the Tribunal referring to
At the time there were approximately 150 such friends who Ms Hammond knew would share her sense of humour and believed would respect the privacy setting.
Credit Union executives apparently became aware of the existence of the photo, with a NZCU Baywide human resources manager 'persuading' a junior employee to reveal the image. The manager made a screenshot of the photo and disclosed it to other senior managers.

The Tribunal stated that
the screenshot was then distributed to multiple employment agencies in the Hawke’s Bay area by email which, along with contemporaneous phone calls from NZCU Baywide, warned against employing Ms Hammond. At the same time an internal email was sent by the Chief Executive Officer of NZCU Baywide to staff disclosing information about the circumstances in which Ms Hammond had earlier resigned from NZCU Baywide. NZCU Baywide also placed severe pressure on her new employer to terminate her (Ms Hammond’s) employment.
The Tribunal comments that the photo had become the basis for a
sustained campaign by the company to inflict as much harm and humiliation as possible by ensuring she could not be employed in the Hawkes Bay area
making her new position untenable, forcing her to resign because of the threat by NZCU Baywide to boycott her new employer, causing her to be unemployed for 10 months and severely affecting her close relationships

NZCU Baywide admitted to breaching principle 11 and apologised to Hammond.

The Tribunal stated that on the balance of evidence, it had established that Hammond had experienced loss, detriment, damage or injury, as set out in section 66 of the Privacy Act. It was also satisfied that there had been significant humiliation, loss of dignity and injury to her feelings. Accordingly, it awarded damages of NZ$98,000 for humiliation, loss of dignity and injury to feelings.

It awarded further damages of NZ$38,350 for loss of income, NZ$15,543 for legal expenses and NZ$16,177 for the loss of a salary benefit  Hammond might have expected to obtain.

The Tribunal notes
Hammond received favourable comments and commendations from auditors, managers and staff from within different departments and from different towns. Even Mr Grant Porter, the Chief Operating Officer, conceded in cross-examination at the hearing that Ms Hammond was a valuable member of NZCU Baywide.
Nevertheless Ms Hammond soon experienced frustration when she found some members of the executive team, particularly Mr Gavin Earle, Chief Executive Officer, Mr Porter and Ms Julie Baxter (Lending Manager) did not listen to her when she cautioned that in her view NZCU Baywide was at commercial and financial risk for failing to adhere to the Privacy Act. Citing this as an example she said she soon learnt the executive team banded together to ensure their decisions were never questioned. On another occasion when she approached Ms Baxter (the person to whom she reported) and provided a document Ms Hammond had created to ensure the Board could make informed decisions when signing off on loans, Ms Baxter’s response was “the Board just do as they are told”.
In considering application of the Act the Tribunal states
Although the context of the interferences with privacy alleged by Ms Hammond includes the posting of a picture of a cake on a Facebook page, the application of the information privacy principles is nevertheless a straightforward process. The facts do not call for observations to be made about the application of those principles in the context of social networking sites. Contrast Senior v Police [2013] NZFLR 356 (HC) and Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188 at [29] to [37]. A further point to be made is that the manner in which the case has been framed by the parties has made it unnecessary for the Tribunal to consider the possible application of the New Zealand Bill of Rights Act 1990, particularly the s 14 protection of “the freedom to seek, receive, and impart information and opinions of any kind in any form” [emphasis added].
The legal issues fall into two distinct categories. First, those relating to the alleged breaches of the “collection” principles, being Principles 1 to 4. Second, those relating to the alleged breaches of the “disclosure” principle, being Principle 11. We address the two categories separately. Whether a breach of the collection principles – Principles 1 to 4
The closing submissions for NZCU Baywide conceded that by downloading a screenshot of the cake from Ms Hammond’s Facebook page personal information about Ms Hammond was collected. It was also conceded the screenshot was not obtained directly from Ms Hammond. It was accepted that with Ms Hammond’s Facebook page security settings in place, her page was not accessible to the public at large.
However, it was contended (in the context of Principle 1) that the information had been collected for a lawful purpose connected with a function or activity of NZCU Baywide, including the need to protect its commercial reputation and to address potential misconduct by an employee. It was argued Ms Hammond was on garden leave at the time and owed NZCU Baywide a duty of fidelity.
In relation to Principle 2 it was claimed NZCU Baywide held a belief on reasonable grounds Ms Hammond had authorised the collection of the information. As to Principle 3 it was said NZCU Baywide did not have to comply with the requirement that information be collected directly from Ms Hammond as it held one of the beliefs listed in Principle 3 subcl (4). In relation to Principle 4 the defence was that the information had not been collected by means which were unfair or which intruded to an unreasonable extent on Ms Hammond’s personal affairs.
We do not intend exploring these issues for the simple reason that even if all issues are determined in Ms Hammond’s favour, her claim under Principles 1 to 4 is nevertheless bound to fail. The reason is that she has not established to the probability standard a causal connection between the alleged breaches of Principles 1 to 4 and the forms of harm listed in s 66(1)(b)(i) to (iii) of the Privacy Act. Unless such causal connection is established, the claim must fail. See Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004 at [33] and [34].
In our view this case falls to be determined under Principle 11 alone.


The Canberra Times reports that in his first major public speech Public Service Commissioner John Lloyd has referred to FOI as "very pernicious".

Lloyd is reported as commenting that APS middle managers whose ranks have been thinned by cuts need to do more and have had too much of their responsibility shifted to their bosses.
He said a more risk-averse bureaucracy existed than it did a decade ago, which may have led to the responsibility shifting.
"We are concerned too much of the work has drifted up," Mr Lloyd said. "We have to make sure control and decision making doesn't constantly drift up."
The need for cultural change comes at a difficult time for middle managers whose jobs have been cut more than any other classifications. EL1s, the most severely hit, have made up as much as half the voluntary redundancies at some large Commonwealth employers.
One audience member at the speech at the National Portrait Gallery suggested to Mr Lloyd that public servants were probably risk averse because of the penalties if they made an error of judgment.
Mr Lloyd said this could be because of a large number of watchdogs and "very pernicious" freedom of information laws .
FOI laws allow members of the public to request documents that can show decision-making processes and, in doing so, show where mistakes may have been made. Some within the public service see them as too onerous.
"[FOI laws] have gone a bit further than what they were intended to," he said.
A less self-interested response, based on the Objects provisions in the statute and appeals regarding decision-making, would be that APS administration of the Act has not gone far enough.

11 March 2015


In time for the latest review of the TGA comes the NHMRC dismissal of homeopathy.

The NHMRC has announced
there is no good quality evidence to support the claim that homeopathy is effective in treating health conditions.
The NHMRC indicates [PDF] that its report
follows a thorough review of the evidence, conducted as part of NHMRC's responsibility to provide advice and support informed health care decisions by the Australian community.
The conclusion is based on the findings of a rigorous assessment of more than 1800 papers. Of these, 225 studies met the criteria to be included in NHMRC's examination of the effectiveness of homeopathy.
The review found no good quality, well-designed studies with enough participants to support the idea that homeopathy works better than a placebo, or causes health improvements equal to those of another treatment. A
lthough some studies did report that homeopathy was effective, the quality of those studies was assessed as being small and/or of poor quality. These studies had either too few participants, poor design, poor conduct and or reporting to allow reliable conclusions to be drawn on the effectiveness of homeopathy.
According to CEO Professor Warwick Anderson, "All medical treatments and interventions should be underpinned by reliable evidence. NHMRC's review shows that there is no good quality evidence to support the claim that homeopathy works better than a placebo."
He drew particular attention to the NHMRC Statement on Homeopathy's advice that homeopathy should not be used to treat conditions that are chronic, serious, or could become serious:
'People who choose homeopathy may put their health at risk if they reject or delay treatments for which there is good evidence for safety and effectiveness. People who are considering whether to use homeopathy should first get advice from a registered health practitioner and in the meanwhile keep taking any prescribed treatments.'
He emphasised that health practitioners should always offer treatments and therapies based on the best available evidence.
"Each year NHMRC funds research to test treatments and procedures offered to patients, with more than $320 million spent on clinical and health services research in 2014," Professor Anderson said.
"NHMRC conducts reviews of evidence on a range of health topics which is developed into guidelines or advice. Examples include clinical practice guidelines on the management of overweight and obesity and the Australian Dietary Guidelines," he said. "It is important that the public has access to independent, high quality advice when it comes to making decisions about their health care."
"From this review, the main recommendation for Australians is that they should not rely on homeopathy as a substitute for proven, effective treatments."
"This statement was the result of a rigorous examination of the evidence and used internationally accepted methods for assessing the quality and reliability of evidence for determining whether or not a therapy is effective for treating health conditions."
"NHMRC is also aware of strongly held views on this topic so it is important to note that the process was thoroughly consultative and that the public was invited to submit information and evidence, all of which was considered by our expert working committee."
The findings of the homeopathy working group's review are summarised in the final NHMRC Information Paper: Evidence on the effectiveness of homeopathy for treating a clinical condition also released today.

09 March 2015


'A Man for All Treasons: Crimes by and Against the Tudor State in the Novels of Hilary Mantel' by Alison L. LaCroix in Martha C. Nussbaum, Richard H. McAdams and Alison L. LaCroix (eds) Fatal Fictions: Crime in Law and Literature (forthcoming)  examines
the crime of treason as depicted in Hilary Mantel’s novels Wolf Hall (2009) and Bring Up the Bodies (2012). In the novels, Mantel provides a corrective to the enduringly popular view of Thomas Cromwell as at best a Tudor-era fixer, and at worst as a murderer and torturer – a view made famous by Robert Bolt’s play A Man for All Seasons (1960). Instead, Mantel’s Cromwell is the industrious creator of the modern administrative state. In this characterization, Mantel follows in the scholarly path of Geoffrey Elton, whose Tudor Revolution in Government (1953) rehabilitated Cromwell by arguing that he reformed English government by replacing personal rule with modern bureaucracy and systematizing the royal finances. In different ways, both Mantel’s and Elton’s account rebut the image of Cromwell as a criminal. But I argue that Mantel’s Cromwell in fact should be seen as representing two species of crime: crimes against the state, in the form of treason; and crimes by the state, in the form of espionage and torture. The novels present both forms of crime as occurring at the same historical moment in which the modern state was being formed. Because crimes against the state and by the state both presuppose the existence of the state itself, Mantel’s and Elton’s modernizing Cromwell may not be as distinct from Bolt’s devious Cromwell as the competing accounts would suggest.

08 March 2015


The UK House of Commons Select Committee on Science & Technology has released a report on Current and future uses of biometric data and technologies.

The report states
In its broadest sense, biometrics is the measurement and analysis of a biological characteristic (fingerprints, iris patterns, retinas, face or hand geometry) or a behavioural characteristic (voice, gait or signature). Biometric technologies use these characteristics to identify individuals automatically. Unlike identity documents or passwords, biometrics cannot be lost or forgotten since they are a part of the user and are always present at the time of identification. They are also difficult, though not impossible, to forge or share.
Three future trends in the application of biometrics were identified during the inquiry: the growth of unsupervised biometric systems, accessed via mobile devices, which verify identity; the proliferation of "second-generation" biometric technologies that can authenticate individuals covertly; and the linking of biometric data with other types of 'big data' as part of efforts to profile individuals.
Each of these trends introduces risks and benefits to individuals, to the state and to society as a whole. They also raise important ethical and legal questions relating to privacy and autonomy. We are not convinced that the Government has addressed these questions, nor are we satisfied that it has looked ahead and considered how the risks and benefits of biometrics will be managed and communicated to the public.
The Government has been largely silent on the matter since the abolition of the Government's Identity Card Programme in 2010 and the destruction of the National Identity Register. And yet, in other policy areas, including immigration and law enforcement, the use of biometric identification systems by the state has expanded. If the Government is to build public trust in biometric data and technologies, there is a need for open dialogue and greater transparency. We therefore recommend that the Government sets out how it plans to facilitate an open, public debate around the use of biometrics.
Management of the risks and benefits of biometrics should have been a core element of the Government's joint forensics and biometrics strategy. Despite undertaking to publish this document at the end of 2013, we were dismayed to find that there is still no Government strategy, no consensus on what it should include, and no expectation that it will be published in this Parliament. This is inexcusable. We expect a comprehensive, cross-departmental forensics and biometrics strategy to be published by the Government no later than December 2015.
In the absence of a biometrics strategy, there has been a worrying lack of Government oversight and regulation of aspects of this field. We were particularly concerned to hear that the police are uploading photographs taken in custody, including images of people not subsequently charged with, or convicted of, a crime, to the Police National Database and applying facial recognition software. Although the High Court ruled in 2012 that existing policy concerning the retention of custody photograph by the police was "unlawful", this gap in the legislation has persisted. At the very least, there should be day-to-day, independent oversight of the police use of all biometrics. We therefore recommend that the Biometrics Commissioner's jurisdiction should be extended beyond DNA and fingerprints to cover, at a minimum, the police use and retention of facial images.
The Committee's Conclusions and recommendations are -
Scientific advice on biometrics
1. The Foresight Programme's 2013 report on Future Identities was a missed opportunity to examine biometrics and identify the main trends, and the associated challenges, that policy-makers in this field will face in the future. Indeed, it is astounding that biometrics was deemed 'beyond the scope' of an apparently forward-looking piece of analysis when, three years earlier, the Government had been seeking to rely on biometrics as part of its identity card programme. We agree with the Biometrics Commissioner that this type of forward-looking analysis is desirable. (Paragraph 28)
2. We recommend that Foresight builds on the evidence gathered during this inquiry and undertakes a short, "Policy Futures" study to examine systematically the emerging issues, risks and opportunities arising from developments in biometrics. This analysis should be frequently reviewed in order to keep pace with rapid advances in biometrics and should be applied by the Government to assist its preparations for, and to help it shape, how this field may unfold in the future. (Paragraph 29)
3. Despite a previous assurance from the Government, given over 12 months ago, that the publication of the forensics and biometric policy group's minutes was on the horizon, this has not occurred. As a result, the remit and status of the group, as well as what has been on its agenda, remain a mystery. This continuing lack of transparency in the delivery of scientific advice to Government on biometrics is unacceptable and goes against the Government's own guidance, as set out in the 2010 Principles of scientific advice to Government. (Paragraph 35)
4. To improve its transparency, we recommend that the remit, membership and outputs of the forensics and biometric policy group should be placed in the public domain immediately. A commitment should also be made to the publication of the minutes of all future meetings, unless there are overriding reasons of national security for not doing so. (Paragraph 36)
A strategy for biometrics
5. The Government undertook to publish a joint forensics and biometrics strategy by the end of 2013. Over a year later, there is no strategy, no consensus on what it should include, and no expectation that it will be published in this Parliament. In its absence, there remains a worrying lack of clarity regarding if, and how, the Government intends to employ biometrics for the purposes of verification and identification and whether it has considered any associated ethical and legal implications. (Paragraph 41)
6. The Government should be developing a strategy that exploits emerging biometrics while also addressing public concerns about the security of personal data and the potential for its use and misuse, with particular reference to biometric data held by the state. (Paragraph 42)
7. We expect a comprehensive, cross-departmental forensics and biometrics strategy to be published by the Government no later than December 2015. (Paragraph 43)
Testing biometric systems
8. When biometric systems are employed by the state in ways that impact upon citizens' civil liberties, it is imperative that they are accurate and dependable. Rigorous testing and evaluation must therefore be undertaken prior to, and after, deployment, and details of performance levels published. It is highly regrettable that testing of the 'facial matching technology' employed by the police does not appear to have occurred prior to the searchable national database of custody photographs going live. While we recognise that testing biometric systems is both technically challenging and expensive, this does not mean it can be neglected. (Paragraph 54)
9. When testing does occur, the continued use of a variety of testing protocols by suppliers makes it difficult to analyse and compare, with any degree of confidence, the performance of different systems. Following the abolition of the Biometrics Assurance Group, it is unclear who is responsible for interpreting the outcomes of biometric testing for the Government. (Paragraph 55)
10. The Government should explain, in its response to this report, why the facial matching technology employed by the police was not rigorously tested prior to being put into operational use. We further recommend that the Government details what steps it is taking to encourage suppliers of biometric systems to comply with established UK testing standards. (Paragraph 56)
Public attitudes
11. We welcome the Government's commitment to the principle of proportionality when it is considering implementing a biometric application. However, we are not convinced that the Government has clear steps in place—such as conducting mandatory privacy impact assessments—to measure consistently whether or not a specific biometric application is proportionate. (Paragraph 61)
12. We have seen in the past how public trust in emerging technologies may be severely damaged in the absence of full and frank debate. Despite growth in commercial and Government applications of biometrics, the Government appears to have made little effort to engage with the public regarding the increasing use of their biometric data, and what this means for them, since the scrapping of the Government's ID card scheme in 2010. This is exactly the type of issue that the Government's joint forensics and biometrics strategy should have addressed. (Paragraph 68)
13. We recommend that the Government sets out, in its response to this report, how it plans to facilitate an open, public debate around the growth of biometric systems. (Paragraph 69)
Data storage and system security
14. High profile cyber-attacks and data loss incidents have undermined the public's confidence in the ability of both Government and industry to store their data securely. Security considerations should never be an "afterthought" or an optional extra. We welcome the Minister's confirmation that the security of the Government's biometric systems is "bolted on" at the beginning of the design process. However, such assurances alone will do little to diminish the public's concerns while data losses continue to occur. (Paragraph 75)
15. We recommend that, in its response to this report, the Government outlines the steps taken to mitigate the risk of loss, or unauthorised release, of the biometric data that it holds. (Paragraph 76)
16. Current legislation places responsibility on the institution rolling out a (biometric) system to ensure that appropriate security measures are in place when storing personal data. However, we are concerned that there is no proactive, independent oversight of whether this is occurring. Conducting a privacy impact assessment at the outset of all projects and policies that collect, retain or process personal data would help to ensure that those implementing a biometric system are fully aware of, and compliant with, the necessary security measures. (Paragraph 77)
17. We therefore reiterate the recommendation made in our report, the Responsible Use of Data, that privacy impact assessments should be conducted at the outset of all projects and policies that collect, retain or process personal data, including biometric data. (Paragraph 78)
18. In our opinion, under no circumstances should the state roll out a biometric system that does not provide any scope for human intervention. (Paragraph 84)
19. In the interests of greater transparency of data collection and use, we reiterate our earlier recommendation; namely that the Government drives the development of a set of information standards that companies can sign up to, under which they commit to explain to individuals their plans for the use of personal data (including biometric data), in clear, concise and simple terms. (Paragraph 85)
Legislation and standards
20. We agree with the Government and the Information Commissioner's Office that, as a principle-based framework, the Data Protection Act 1998 should provide adequate regulation in the face of developments in biometric technologies. However, we are mindful of the concerns raised by experts in the field, such as Professor Sue Black, and therefore recommend that the Government keeps this matter under review. (Paragraph 93)
21. To avoid a biometric application once again being put into operational use in the absence of a robust governance regime, we recommend that:
  • the forensics and biometric policy group is reconstituted with a clearer mandate to analyse how developments in biometrics may compromise the effectiveness of current policy and legislation; 
  • as recommended in paragraphs 35 and 36, the reconstituted group should operate in a transparent manner, be open to receiving inputs from external bodies and publish its outputs; 
  • the Government, police and the Biometrics Commissioner should use these outputs to identify gaps in the legislation to be addressed ahead of any new biometric application going live. (Paragraph 101)
The role of the Biometrics Commissioner
22. We agree with the Biometrics Commissioner that there is value in the provision of day-to-day, independent oversight of police use of biometrics and that such oversight should extend beyond fingerprints and DNA. We also agree that broadening the Commissioner's responsibilities would be a "more sensible" approach than establishing a new, separate commissioner covering other biometric traits. (Paragraph 104)
23. We therefore recommend that the statutory responsibilities of the Biometrics Commissioner be extended to cover, at a minimum, the police use and retention of facial images. The implications of widening the Commissioner's role beyond facial images should also be fully explored, costed and the findings published. We further recommend that the Government clarifies where the operational boundaries lie between the Biometrics Commissioner and the Forensic Science Regulator. (Paragraph 105)
Quality standards
24. Standards become increasingly useful when they are widely adopted—namely required by customers and used by vendors to build standards-compliant products. As a customer, the Government can demand that its biometric systems adhere to national and international standards. While we recognise the advantages of the Government using its procurement powers in this way, and of the benefits of interoperability between biometric systems, we are also aware that there will be instances when interoperability should be prevented in order to limit access to sensitive personal information. Once again, in the absence of a comprehensive biometrics strategy, it is not clear how the Government aims to strike this delicate balance. (Paragraph 110)
25. The Government should explain, in the interests of the responsible use of data, how it intends to manage both the risks and benefits that arise from promoting open standards and the interoperability of biometric systems. (Paragraph 111)