23 May 2015


'Canadian Constitutional Identities' by Eric M. Adams in (2015) 38(2) Dalhousie Law Journal (Forthcoming) comments
 Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms. 
Adams states
Today, Canada’s constitution serves as an object of law for lawyers, a set of rules for governments, and as a repository of politics for political scientists and journalists. A constitution is, of course, all of those things, but a constitution also consists of the  stories a nation tells about itself. A constitution finds full meaning and expression in the multiple, diverse, layered, and conflicting claims made about its histories, purposes, and defining characteristics. Just as personal identity is forged and sustained in a narrative of the self, constitutional stories are driven by the desire to make coherent these varied strands of constitutional text, perspective, and experience. Such stories serve as a living oral history, always in the process of being made and re-made in the telling. A particular constitutional story may be dominant or subversive, popular or obscure at any particular moment, but regardless these stories draw from, and also give shape and meaning to, the constitution itself as well as the constitutional law, politics, and culture in which it is embedded. The creation of constitutional meanings, in this sense, are the products not only of judges, politicians, and civil servants, but of a broader “interpretive community” comprising lawyers, scholars, journalists, artists, and citizens. Not all are equally influential, but all may play a role in telling more or less compelling stories of constitutional significance. The stories themselves tell us much in their content and omissions, proponents and critics, tenor and tone. In this, Sanborn was surely right: a constitution endures in its capacity for affection, in the stories it tells, in the identities it fosters. 
This article argues that a great deal of constitutional law, culture, and politics can be explained in terms of the making, contestation, and transformation of such struggles to define the balance of federalism in the relationship between the provinces and federal government, to ongoing controversies concerning the place of Quebec in the federation, the application of individual rights and their proportionate limits, judicial remedial discretion and deference, and aboriginal rights and sovereignty, Canada’s constitution has been defined as much by a struggle to determine Canada’s constitutional identity as to interpret its formal constitutional text. My purpose in this article is to examine one particularly enduring strand among the battles over Canada’s constitutional identity: the search for “constitutional autochthony,” or, what Peter Oliver usefully describes as the “constitution of independence”. The term autochthony originates in the comparative constitutional work of Kenneth Wheare as a way of explaining the twentieth-century desire of some Commonwealth countries, including Canada, to constitutionally separate from Great Britain. But Wheare intended the term to gesture to something altogether deeper and less tangible than mere autonomy: authochthony, he observed, described the desire for an indigenous constitutionalism “sprung from their own soil.” 
Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada ... Desire ... a Constitution similar in Principle to that of the United Kingdom,” much of Canada’s constitutional history can be understood as the search for an autochthonous and distinctly domestic Canadian constitutional identity, one tied up with, but not limited to, independence, a domestic amending formula, and recognition and expression of the diverse political, social, and cultural realities of Canada. That yearning for a uniquely Canadian constitutional identity emerged from and textured Canada’s constitutional jurisprudence, scholarship, and culture just as it came to drive the constitutional politics of Confederation, independence, patriation, and the Meech Lake and Charlottetown Accords.  
This article has three parts. Part I sketches more fully what I mean by constitutional identity, charts the forces which create those identities, and argues that constitutional identities play a crucial role in Canadian constitutional law, politics, and culture. Part II identifies constitutional nationalism as an early and influential strand in the formation of Canadian constitutional identity. As I have explained elsewhere, constitutional nationalism “locates its demand for national self-determination, ideology, and sovereignty in formal constitutional instruments. It takes seriously the legal authority of the constitution to effect change but also the symbolic role of the constitution as an instrument to construct and cement national identity, unity, and purpose.” Early efforts to define Canadian constitutional distinctiveness by Thomas D’Arcy McGee, among others, transformed into calls for constitutional autonomy from Great Britain, and, ultimately, the search for complete constitutional independence, alongside a distinct and indigenous expression of Canadian constitutionalism. Part III examines arguments for a Canadian constitutional identity within the context of the political, cultural, and constitutional debates of the 1960s. In discussions about the new national flag, national unity, and repatriation of the constitution, Canadians were at once unified by a desire for constitutional self-definition, but also on the cusp of profound disagreement about how new constitutional arrangements might best express and reflect the nation’s true nature and essential characteristics.


The UK Independent reports on yet another data breach (with the standard response from the database owner).

This time it is Adult FriendFinder, with the a hacker supposedly exposing "the personal and sexual details of nearly 4 million users on one of the world-leading dating sites".

The data reportedly includes sexual orientation, preferences, partnership status, names, email addresses, postcodes, dates of birth and IP addresses. The coverage includes data regarding previous members who had deleted their accounts.

The service is claimed to have  63 million users

FriendFinder Networks Inc understands and fully appreciates the seriousness of the issue. 
We pledge to take the appropriate steps needed to protect our customers if they are affected.
Meanwhile the NY Times reports on another health sector breach in the US -
CareFirst, a Blue Cross Blue Shield plan, on Wednesday became the third major health insurer in the United States to disclose this year that hackers had breached its computer systems and potentially compromised some customer information. 
The attack could affect as many as 1.1 million of its customers, but CareFirst said that although the hackers gained access to customer names, email addresses and birthdates, they did not obtain sensitive financial or medical information like Social Security numbers, credit card information and medical claims. The company, which has headquarters in Maryland and serves the Washington area, said the attack occurred in June and described it as “sophisticated.” 
Chet Burrell, CareFirst’s chief executive, said the company contacted the Federal Bureau of Investigation, which is investigating attacks against the insurers Anthem and Premera. … 
Federal officials have yet to label the breaches at Anthem and Premera Blue Cross as state-sponsored hackings, but the F.B.I. is effectively treating them as such, and China is believed to be the main culprit, according to several people who were briefed on the investigations but spoke on the condition of anonymity. There are indications the attacks on Anthem, Premera and now CareFirst may have some common links. … 
The Breaches at Anthem, which is one of the nation’s largest health insurers and operates Blue Cross Blue Shield plans, and Premera Blue Cross, based in Washington State, were much larger. The one at Anthem may have compromised the personal information of 79 million customers and the one at Premera up to 11 million customers. 
Anthem has said the hackers may have stolen Social Security numbers but did not get access to any medical information. Premera said it was possible that some medical and bank account information may have been pilfered.


'Bitcoin: Economics, Technology, and Governance' by Rainer B√∂hme, Nicolas Christin, Benjamin Edelman and Tyler Moore in (2015) 29(2) Journal of Economic Perspectives 213-38 comments 
Bitcoin is an online communication protocol that facilitates the use of a virtual currency, including electronic payments. Bitcoin's rules were designed by engineers with no apparent influence from lawyers or regulators. Bitcoin is built on a transaction log that is distributed across a network of participating computers. It includes mechanisms to reward honest participation, to bootstrap acceptance by early adopters, and to guard against concentrations of power. Bitcoin's design allows for irreversible transactions, a prescribed path of money creation over time, and a public transaction history. Anyone can create a Bitcoin account, without charge and without any centralized vetting procedure—or even a requirement to provide a real name. Collectively, these rules yield a system that is understood to be more flexible, more private, and less amenable to regulatory oversight than other forms of payment—though as we discuss, all these benefits face important limits. Bitcoin is of interest to economists as a virtual currency with potential to disrupt existing payment systems and perhaps even monetary systems. This article presents the platform's design principles and properties for a nontechnical audience; reviews its past, present, and future uses; and points out risks and regulatory issues as Bitcoin interacts with the conventional financial system and the real economy.

22 May 2015


'Judicial Independence From The Executive: A First-Principles Review of the Australian Cases' by Rebecca Ananian-Welsh and George Williams in (2015) 40(3) Monash University Law Review [PDF]
develops a first principles conception of judicial independence. It does so by way of synthesising the large volume of domestic and international materials that describe the idea. It then analyses the extent to which Australian judges have realised the concept through constitutional and other legal development. The article establishes the very significant steps taken by Australian judges to assert their independence from the executive, but equally it also identifies some important gaps. Means of remedying these gaps are discussed, including through the further development of constitutional principles and other non-judicial means. 
The authors comment
Judicial independence is a central pillar of Australia’s constitutional system. Courts themselves play a pivotal role in maintaining this, and recent years have seen a surge in cases and significant and rapid developments in the area. These developments have advanced and reinforced protections for judicial independence, particularly with respect to the independence of judges and courts from the executive branch. In this article we consider how the judiciary has asserted its independence from the executive through an examination of the case law of federal, state and territory courts, and assess whether these cases have fully realised the principle. 
In order to measure the extent to which courts have succeeded in establishing their independence from the executive, we must first identify what judicial independence means and what it requires. Courts, judges, lawyers, international associations, commentators and experts have tackled these same questions in countless forums. The result is a diversity of terminology and approaches describing and giving content to the notion of judicial independence. In Part II we synthesise the leading international and Australian resources to arrive at a first principles conception of judicial independence. Through this review we identify four key indicators of judicial independence, namely: appointment, tenure and remuneration; operational independence; decisional independence; and personal independence. 
These indicators frame our analysis of the Australian cases in Part III, and reveal that the jurisprudence has focused on some aspects of judicial independence at the expense of others. In addition to revealing gaps in the case law, our analysis highlights areas of unrealised potential and suggests ways in which the law might develop to more comprehensively protect judicial independence at the federal, state and territory levels. We discuss these gaps and areas for further development in Part IV. Ultimately, our analysis demonstrates the importance of judicial vigilance in respect of every facet of judicial independence.

Debt Collection and Credit Referencing

The 88 page Australian Competition and Consumer Commission report Research into the Australian debt collection industry [PDF] considers practice in the "debt collection industry", a continuing area of concern regarding consumer protection and privacy law.

The ACCC states
With over 500 businesses offering some form of debt collection service in Australia and collectors making up to 65 million contact attempts each year, the report reveals the scale and breadth of the industry which affects many Australian consumers … Debt collection can be a stressful experience for consumers, and can exacerbate existing financial pressures. Debt collectors that do not comply with the debt collection guideline may cause harm to disadvantaged or vulnerable consumers and become a target of ACCC action.
The report notes that
 The ACCC and the Australian Securities and Investments Commission (ASIC) both enforce Commonwealth consumer protection laws relating to debt collection and have recently updated their joint Debt collection guideline for collectors and creditors. This guideline assists creditors, collectors and debtors to understand their rights and obligations, and ensures that debt collection activity is undertaken in a way that is consistent with consumer protection laws. 
Issues of particular concern identified in the report include -
  • Some in the sector not abiding by the Guidelines and the law who cause considerable detriment to vulnerable and disadvantaged consumers. Problems that can be traced back to the retailer or service provider. 
  • Consumer advocates are particularly concerned about debt collection practices within the energy sector. 
  • Billing issues, management of hardship, disconnections and the referral of debt to multiple debt collectors were cited as concerns. 
  •  Widespread concerns about the practices of Credit Repair businesses. While not considered part of the debt collection industry these businesses can charge consumers large fees –consumer advocates state that these are sometimes larger than the debts involved – for support that is freely available to them from other agencies such as industry ombudsman schemes and financial counsellors. 
  • Debt collection processes that impose addition costs that can add to the detriment for consumers already in financial distress.
The report states
The debt collection industry in Australia is relatively competitive, with over 500 businesses offering some form of debt collection service. While the industry is dominated by a few larger players, the sector is mainly comprised of small businesses, with 6 3% generating less than $200,000 in revenue and 95 % employing less than twenty people. 
Such a divergence has created an interesting competitive dynamic. The major users of debt collection services tend to favour the larger debt collection businesses that have the necessary scale and sophistication to meet their requirements. This means smaller firms are more likely to specialise in niche markets where demonstrated industry knowledge can provide a competitive advantage. Developments in technology, new customer segments and attitudes to compliance have driven significant change in the industry over the last five years. Technology has created economies of scale, which has seen the majority of collection activity shift to call cen tre based operations allowing for consolidation within the sector . 
Technology has also increased internal oversight and compliance as digitisation allows for call recording and improved record keeping. The compliance environment is complex . Debt collectors are required to comply with a number of state and federal legislative and regulatory instruments. Banks, telecommunications providers and energy companies have been long - term users of debt collection services. However, over recent years the industry has seen clients emerge in new sectors, including government, health care and education. 
Key Findings 
Technology and scale have improved compliance, but there are still challenges for both large and small businesses
  • Large collections businesses now have automated systems and procedures to ensure compliance with provisions relating to the timing, frequency and appropriateness of contacts . However, this results in a substantial number of contacts to consumers, which is the underlying driver of complaints. 
  • Small businesses may not be able to implement automated systems, and are theref ore heavily reliant on training, support and a compliance culture to ensure that they are meeting their obligations. 
Issues with debt collection can vary by sector; different debt drives different behaviours and outcomes 
  • There is a clear distinction between issues arising in relation to credit regulated debt and non - credit regulated debt, such as the energy and telecommunications sectors. This distinction occurs because of the nature and value of the respective debts. 
  • The identification and adoption of best practice approaches in the debt collection industry requires a comprehensive understanding of those industries that are refer ring or selling debt. 
  • Debt collectors state a preference for collecting debt from those businesses that have rigorous processes in place to ensure debt quality and hardship issues are appropriately managed prior to a debt being referred or sold. 
Rising costs and the nature of supply have created a particular set of challenges for the energy sector 
  • Consumer advocates have raised concerns about debt collection practices within the energy sector. Billing issues, management of hardship, disconnections and the referral of debt to multiple debt collectors were cited as areas of concern.
  • The debt collection industry believes that a sig nificant portion of complaints are driven by billing issues, disputes, or a failure to identify hardship, rather than debt collection conduct. 
  • Energy retailers acknowledge the issues. There was general agreement that the sector is highly transactional in nature, which creates some unique challenges within the sector.
Debt collection approaches that impose additional costs can result in detriment for consumers in financial distress
  • Consumer advocates report that it is common for some debt collec tors or solicitors to impose additional fees and charges on outstanding debts. From a consumer perspective, such fees can exacerbate any existing incapacity to pay. 
  • Debt collection businesses note there are standard terms and conditions that allow for rec overy of costs associated with debt collection. However, consumer advocates suggest that these terms are not commonly provided and if they are, they either do not provide for recovery of costs or the relevant term is arguably unfair.
Increased regulatory oversight has led to an improvement in debt collection behaviour
  • Regulatory measures such as the Australian Consumer Law (ACL), the Australian Credit Licence, external dispute resolution (EDR) schemes and the ACCC/ASIC Debt Collection Guideline for Collect ors and Creditors have resulted in improved behaviours within the sector. 
  • Increased regulation and oversight, and the associated compliance costs, ha ve contributed to industry consolidation. There is a noticeable difference between the compliance environments of larger and smaller collection businesses. This may indicate that larger businesses have been more effective in implementing compliance frameworks and promoting a compliance culture.
Despite variations in state and territory licensing regimes, the key obligations of debt collectors when dealing with consumers are made clear by the ACCC/ASIC Debt Collection Guideline
  • Debt collectors are currently required to respond to a range of national and state based laws, regulations and licensing requirements. This has created confusion, or additional administrative burden, for some businesses in the sector.
  • The ACCC/ASIC Debt Collection Guideline is the regulators’ interpretation of the key consumer protection legislation. It represents best practice for the industry, and makes compliance obligations clear.
Non - compliant debt collection practices result in significant detriment to vulnerable and disadvantaged consumers. Regulators are willing to take appropriate action in such cases
  • Regulators and consumer advocates generally acknowledge that complaint s are relatively low as a proportion of total debts referred for collection. 
  • However, complaints regarding debt collection are highly emotive and can lead to both financial and psychological stress for consumers. Consumer advocates also point to research that suggests debt collection complaints are grossly under - reported. 
  • Debt collection often affects consumers who are experiencing hardship in various forms. Non - compliant debt collection activity can be particularly harm ful to vulnerable or disadvantaged consumers. The protection of vulnerable and disadvantaged consumers is an ongoing priority for the ACCC .
Credit repair businesses often increase costs for consumers with debt problems
  • While credit repair services are not part of the debt collection industry, there is a consensus between industry, regulators and consumer advocates that these businesses can add unnecessary costs for consumers who have an outstanding debt. 
  • Stakeholders noted that credit repa ir agencies charge consumers large fees for support that is freely available to them from credit reporting agencies, industry ombudsmen, the Office of the Privacy Commissioner and financial counsellors.