26 August 2015

Powers of the Australian Head of State

'Powers of the Head of State' by Michael Crommelin in (2015) 38(3) Melbourne University Law Review 1118-1139 comments
The proposed law to alter the Constitution to establish the Commonwealth of Australia as a republic did not attempt to identify and define the powers of the head of state. Instead, it provided for the President to assume, essentially unchanged, the powers conferred by the existing Constitution on the Queen and the Governor-General. Those powers have never been clearly identified and defined. Their scope depends heavily on constitutional conventions. This article argues that reliance on constitutional conventions is misplaced and that any future proposal to establish a republic must specify the powers of the President as well as the method of appointment to that office.
Crommelin concludes -
Meeting the challenge of identification and definition of the powers of the head of state in a republican constitution requires explicit classification of those powers according to their manner of exercise.
The formal powers of the Governor-General are uncontroversial. They should be conferred directly on the President. 
The powers conferred on the Governor-General in Council are also relatively straightforward. There is no reason to suppose that, upon the change from monarchy to republic, the effective operation of the legislative, executive or judicial branches of the Commonwealth would be increased by providing discretionary authority to the President in the exercise of any of these powers. Accordingly, they should be conferred on the President in Council.
Some of the powers of the Governor-General that are exercisable only on Ministerial advice should also be conferred on the President in Council. The executive power of the Commonwealth should be vested in the President (if vesting is deemed necessary) and declared to be exercisable by the President in Council, together with the command in chief of the naval and military forces of the Commonwealth, the transmission of a message to the House of Representatives or Senate recommending the purpose of an appropriation, and the assent to a proposed law passed by the House of Representatives and the Senate.
Other powers of the Governor-General that are exercisable only on ministerial advice should be conferred on the President and declared to be exercisable only in accordance with the advice of the Prime Minister. These include the selection, summoning and dismissal of members of the Federal Executive Council and the allocation of portfolios to Commonwealth Ministers.
Two further powers of the Governor-General which may currently confer discretionary authority would require special treatment. First, the President in Council rather than the President should exercise the power to convene a joint sitting of the members of the House of Representatives and the Senate after a double dissolution under s 57 of the Constitution. The jurisdiction of the High Court to determine whether the requirements of s 57 of the Constitution have been satisfied in relation to a proposed law enacted at a joint sitting is sufficient to protect the constitutional integrity of the deadlocks procedure without any need to confer discretionary authority on the President. Secondly, the President should be required to submit a proposed law for the alteration of the Constitution to referendum under s 128 of the Constitution after its passage by Parliament, whether by each House or by one House twice, as a corollary of the fact that s 128 allows such a proposed law to originate in either House. Then there would be no need to confer discretionary authority on the President.
In my opinion, only six reserve powers should be conferred on the President. They are the powers of appointment of the Prime Minister, dismissal of the Prime Minister, summoning Parliament, prorogation of Parliament, dissolution of the House of Representatives, and dissolution of the Senate and the House of Representatives simultaneously under s 57 of the Constitution. The exercise of each of these powers in particular circumstances poses a threat to our system of government sufficient to justify the exercise of discretionary authority of the President in fulfilment of a duty to uphold the Constitution.
Both principle and pragmatism demonstrate that reliance on constitutional conventions is more likely to hinder than help the identification and definition of the reserve powers of the head of state. Any inclination to perpetuate the Barton approach should be firmly resisted. Instead, the Constitution should simply state that the President has a duty to uphold the institutional integrity of the Constitution, including the principle that a government must have the confidence of the House of Representatives.

Bitcoin, the UCC and payment system regulation

'Bitcoin and the Uniform Commercial Code' by Jeanne L. Schroeder comments
Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that holy grail of commerce – a payment system that would eliminate or minimize the roles of third party intermediaries. In addition, the NASDAQ and a number of issuers are experimenting with using the blockchain to record the issuing and trading of investments securities.
In this Article, I examine the implications for bitcoin under the Uniform Commercial Code (the “U.C.C.”). Specifically, I consider three issues. In Part 1, I discuss the characterization of bitcoin – which I am using generically to refer to any virtual or cryptocurrency – under Article 9. The bad news is that it does not, and cannot be made to fit into, the U.C.C.’s definition of “money”. If held directly by the owner, bitcoin constitutes a “general intangible”. Unfortunately, general intangibles are non-negotiable. This could greatly impinge on bitcoin’s liquidity and, therefore, its utility as a payment system.
In Part 2, I show how this may be mitigated by the rules of Article 8 governing investment securities. If the owner of bitcoin were to choose to hold it indirectly through a financial intermediary, then she and the intermediary could elect to have it treated as a “financial asset” which is super-negotiable. Unfortunately, this comes at the cost of eliminating one of the primary attractions of cryptocurrency, namely the ability to engage in financial transactions directly without a third-party intermediary. However, Article 8, may already provide a legal regime for another contemplated use for the blockchain – namely as a readily searchable means of recording the ownership and transfer of property generally.
In Part 3, I explain how cryptosecurities fall squarely within Article 8's definition of “uncertificated securities.” Ironically, therefore, the creation of bitcoin securities may finally breathe life to little used provisions that were invented almost 40 years ago in a failed attempt to solve a completely different problem.
'The Coming of Age of Digital Payments as a Field', a paper by Ignacio Mas and Ross P. Buckley, has
three objectives. It lays out the key differences between a banking and a payments mindset, within the historical context in which these fields have developed. It initiates a discussion on whether it is useful to articulate the digital payments space as an emerging profession distinct from banking, and if so, what might be the core elements of its identity and how might a sense of a profession emerge. Finally, it looks at the main vision, information and human capacity gaps that are at present limiting the pace of development of the digital payments space.
In referring to 'Breaking the payment innovation floodgates' the authors comment
Given bankers´ traditional reticence to develop stand‐alone payment services with the levels of convenience and certainty that customers demand, a host of players have entered the space in the last decade. They come from diverse backgrounds —from large mobile operators and retailers to tiny specialist internet start-­‐ups— but they all share the technology focus that enables transactions to happen fast, with as few clicks as possible, anytime and anywhere. The digital payments sector has grown beyond all recognition and continues to evolve fast.
The innovation floodgates are being torn asunder by two main forces. From a technology standpoint, the internet and smartphones make it possible to design rich and scalable solutions at a fraction of the cost it would have taken a decade earlier. From a regulatory standpoint, there is a growing trend for regulators to allow new specialist payment service providers or e-­‐money issuers the opportunity to get into the business without having to acquire a banking license or partner with a sponsor bank.
Banking is centuries old, but the field of digital payments is only fifty years old. With hindsight, we can identify at least four waves of innovation around digital payments. The first wave of payment innovators sought to ride on top of, rather than displacing, banking services. Such was the case with the VISA and MasterCard credit associations that emerged in the 1950s, and with internet payment service providers such as PayPal that emerged in the late 1990s. These systems rely on banks to conduct all customer due diligence and provide cash in and cash out services. If you don´t have a bank account, you simply cannot have a credit card or a PayPal account.
A second wave of payment innovators sought to stand alongside banks, and even became a direct competitor to them. Their innovation was to go beyond the purely digital and establish a brick-and-mortar network of stores where customers could complete their registration and conduct cash in/cash out transactions. These were the mobile money systems that emerged in a number of developing countries following the launch of Smart Money in the Philippines and is epitomized by M-PESA in Kenya. Now you can be part of a digital payment network even if you don´t have a bank account.
A third wave of payment innovators has been making headlines in the last five years, mainly in developed countries and the US in particular. They are seeking to unbundle the payments landscape and entrench themselves in particular stages of the payments value chain. They depend on other players in the ecosystem to do the rest, but through their bottleneck control of their stage they seek to exert a major control over their partners and have substantial influence on the development of the market. Examples are Square, for low cost merchant payments; Google Wallet and Apple Pay for payment applications; and Stripe, as an integrated suite of application programming interfaces (APIs) or hooks into a host of payment options for businesses.
A fourth wave of payment innovators is now emerging, with a much more disruptive agenda: they seek to lay an entirely new foundation for financial transactions that is based on decentralized trust, peer-­‐to-­‐peer networks running on standard internet infrastructure, and open source protocols managed by the community of users. This is the promise of the new cryptocurrency platforms, such as Bitcoin and Ripple. These platforms may enable the creation of a host of new players that will not be content just to rival banks, but in fact will seek to displace banks altogether.

Papal Copyright History

'Proto-Property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges' by Jane C. Ginsburg in Isabella Alexander & H. Tomas Gomez-Arostegui (eds) THe History of Copyright: A Handbook of Contemporary Research (Edward Elgar, 2015) comments
This Study endeavors to reconstruct the Vatican’s precursor system of copyright, and the author’s place in it, inferred from examination of over five hundred privileges and petitions and related documents — almost all unpublished — in the Vatican Secret Archives. The typical account of the precopyright world of printing privileges, particularly in Venice, France and England, portrays a system primarily designed to promote investment in the material and labor of producing and disseminating books; protecting or rewarding authorship was at most an ancillary objective.
The sixteenth-century Papal privileges found in the Archives, however, prompt some rethinking of that story because the majority of these privileges were awarded to authors, and even where a printer received a privilege for a work of a living author, the petition increasingly asserted the author’s endorsement of the application. The predominance of authors might suggest the conclusion that the Papal privilege system more closely resembled modern copyright than printer-centered systems. That said, it would be inaccurate and anachronistic to claim that authorship supplied the basis for the grant of a Papal privilege. Nonetheless, a sufficient number of petitions and privileges invoke the author’s creativity that one may cautiously suggest that authorship afforded a ground for bestowing exclusive rights.
The Study proceeds as follows: first, a description of the sources consulted and methodology employed; second, an account of the system of Papal printing privileges derived from the petitions for and grants of printing monopolies; third, an examination of the justifications for Papal printing monopolies and the inferences appropriately drawn regarding the role of authors in the Papal privilege system.

25 August 2015

CIFR report on Competition In Financial Services

Bank account number portability as a pro-competition mechanism?

The Centre for International Finance and Regulation (CIFR) has released a 154 page report [PDF] on Competition In Financial Services that suggests adoption of that portability.

CIFR comments
The research question for this project was ‘What are the optimal competition law and policy settings that should apply to the financial services sector?’
The research question was driven by two Australian Government inquiries which will affect competition policy in the financial services sector. The Financial System Inquiry chaired by David Murray and the Competition Policy Review, chaired by Professor Ian Harper
The project has three objectives. 
The first is to investigate the nature of competition in certain sectors of the financial markets. Meeting this objective will provide Australian evidence on which decisions as to the competitive settings in the sector can, or should be, adjusted. 
The second is to consider the mechanisms by which competition in the financial services sector can be promoted. This includes an analysis of the approaches used on an international basis for the promotion of competition in financial services. Meeting this objective will provide evidence on which decisions as to allocation of responsibility for promoting competition can be made. 
The third is to consider the sector-specific competition settings in the financial sector, including the balance between competition and stability. As the global financial crisis did not provide Australia with direct experience of the practical limitations of this balance, the work investigates theoretical approaches and international experience. Meeting this objective will provide evidence for appropriate policy settings if there are to be any sector-specific competition policy exemptions. 
CIFR goes on to state
International work from central banks, international financial institutions and academic sources in this field is still dominated by the effects of the financial crisis. There are three critical themes:
(a) an increased focus on macroprudential regulation; 
(b) a focus on regulations that respond to the globalisation of the financial markets; and 
(c) the introduction of anti-competitive policies such as government intervention and consolidation after the financial crisis.
These sources have also offered key policies to promote competition, which include the independence and strength of regulators, consumer policies such as the facilitation of switching, financial literacy, and easing entry and exit restrictions. 
There are three characteristics of retail banking in Australia:
(a) the stability of the sector is sound and retail banking had a relatively soft landing in the aftermath of the financial crisis; 
(b) there is limited competitiveness and this is reflected in the static state of market share between the four major banks and very slow and marginal improvement gains even by strong second tier competitors; and 
(c) product and service innovation is limited.
There are two important implications that flow from these issues:
(a) the absence of vigorous rivalry, whilst providing stability, is likely to mean that the welfare of retail banking consumers is not optimised; and 
(b) the level of innovation may not be as high as is feasible and barriers, including prudential regulatory barriers to entry or expansion, mean that the extent of rivalry is unlikely to change without some form of promotion of competition.
We recommend the removal of the ‘four pillars’ policy for the following reasons:
  • The four major banks are protected by an implicit government guarantee that impacts market operation with little observable benefit to consumers, and may be a source of consumer disutility. 
  • The four pillars policy has prompted increased vertical integration within the sector, particularly in the area of mortgage products. 
  • There are sufficient merger protections provided by Part IV of the Competition and Consumer Act 2010 (Cth). 
  • Competition and contestability arise when there are reasonably low barriers to entry and exit from the sector. It is not clear that low barriers to entry exist in Australia, and evidence to support this view comes from the failure of international banks to gain a significant toehold in the retail banking sector in Australia. One deterrent to entry is the regulatory focus on the four pillars.
We recognised that this position is at odds with the view of the Financial System Inquiry. The rationale in the report of the Inquiry was to prevent mergers between the four pillars, and the current competition law achieves this objective.
The report examines crowd equity funding as a disruptive force in the banking sector. We recommend that crowd equity funding be permitted with the following safeguards:
  • The Australian Securities and Investments Commission (ASIC) should take an active role in monitoring crowd equity funding and be willing to sue in case of fraudulent action. 
  • Any intermediary online platform should have a financial services licence with limited duty of care. 
  • There should be a cap for business raisings through crowd equity funding of $2 million in a 12-month period.
In terms of competitiveness, Australia’s banking sector lies broadly between the US and the UK, and is comparable with the world overall. However, statistical measures indicate that competition in the domestic sector peaked in 2004. 
We recommend two specific policies to promote competition in retail banking without the structural intervention that would otherwise be required to improve the intensity of competition in the retail banking sector:
  • Introduce bank account number portability. This would use ‘know your customer’ and central database systems in a similar form to those that have been used for mobile number portability in Australia for the last decade and a half. 
  • Introduce customer access to data held by banks to allow third parties to compare bank offerings across all banks.
It is interesting to note that these two recommendations are consistent with the productivity proposals issued by the UK Government in July 2015.
In discussing portability CIFR states -
One of the issues which deters consumers from changing suppliers is the associated switching cost (Fuentelsaz, Maicas and Polo 2012; Colgate and Lang 2001). The Financial Conduct Authority (FCA), a UK financial regulatory body that is independent of the UK government, released a report in March 2015 that highlights the benefits of account number portability (bank account number portability) in encouraging consumers to switch. The report predominately concentrates on Current Account Switching Service (CASS), a service provided in the UK to allow for customers to switch more easily by automatically switching all direct debits, standing orders and bill payments within seven working days and providing a redirection service for up to 13 months. The report also provides important insights into the workings of bank account number portability. These can be used to understand how this mechanism can be introduced into Australia as an effective tool to make switching easier and simpler, which is a necessary component in the financial system for vibrant competition. 
4.7.2 Benefits of bank account number portability 
The FCA report finds that bank account number portability would encourage more customers to switch. Based on recent quantitative consumer research, the report revealed that 35% of consumers and 40% of businesses ‘would be much more likely or more likely to switch if they had portable account details’ (Financial Conduct Authority 2015: 53). The research signalled that customers view bank account number portability as having ‘less risk and is more seamless as a process than CASS’, as there is no requirement to change details or to notify consumers of any changes (Financial Conduct Authority 2015: 53). Further quantitative research shows that, for small and medium-sized enterprises (SMEs) and charities, bank account number portability is viewed as a more convenient mechanism. This is because ‘they would not have to notify their customers of changing details, worry about transferring certain payments, make changes to stationery, or be concerned about what the change in account details may signal to their customers’ (Financial Conduct Authority 2015: 53). Moreover, bank account number portability is seen by customers as reducing the chances of encountering problems such as incoming payments going astray. Thus, the main benefits for incorporating bank account number portability are that switching is made easier and quicker for customers by allowing existing direct debits and credits linked to the account to be automatically transferred to the new institution, meaning that the risk of error for payments going amiss would diminish. 
4.7.3 Possible implementation of bank account number portability 
The FCA report provides technical advice on what measures are required for bank account number portability to be implemented. This includes the following prerequisites: payments, as well as the existing balance, would need to be transferred from the old to the new account, and a record of both the payments to be transferred and the current and any previous account numbers would also be required. Essentially, for bank account number portability to be effective, the customer’s details and payments would need to be accessible by the old and new institution. 
According to the FCA report, these requirements could be dealt with via two different methods. The first potential method is based on the existing market structure, but would incorporate bank account number portability by building additional infrastructure that includes the prerequisites, as previously referred to, such as retaining information on payments and account information, and routing payments and balances. This additional infrastructure would be run centrally, but providers would still work under their own existing systems. The second concept is a ‘central utility model’ based on a ‘central shared banking platform’. The ‘utility’ model could include features such as a ‘Know-Your-Customer’ (KYC) database (which stores the customer’s details for identification) and a ‘payment mandates database’ for all payments to be transferred through a common payment infrastructure that would identify which institution the account is linked to (Financial Conduct Authority 2015: 54). The idea is for providers to retain their different products and services, interest rates, internet banking sites, or mobile banking applications to continue offering competing products to customers, whilst using a common infrastructure system. Unfortunately, the FCA does not delve into the specifics of how bank account number portability would be implemented, but rather provides a framework to be further examined. 
4.7.4 Portability implementation in Australia 
Implementing account number portability in Australia would require compliance with the relevant regulatory safeguards, especially in the context of anti-money laundering and counter-terrorism, that have been constructed over the years. Consequently, an Australian model would need to include a ‘Know Your Customer’ database and a ‘payment mandates database’. Currently, the Australian payment system is based on the direct entry system, which essentially is a series of bilateral networks between financial institutions to facilitate the transactions of direct credits and debits. In other words, an electronic payment system to transfer money. For this to occur, each customer has a customer account number to identify the specific account, and a bank, state, branch (BSB) number to indicate which financial institution, state and branch the customer’s account number is linked to. To switch in Australia, customers are required to change their BSB, customer account number and redirect incoming or outgoing transactions to the new account details. 
The Fraser (2011: 8) report, commissioned by the Australian government, developed a similar idea to the FCA report on bank account number portability. The report conceptualized an alternative numbering system with a central account registry to store the details of the customer’s account, including that of the customer’s institution, which would be updated each time a switch occurs, as well as, a ‘central hub’ or clearing house whereby all direct payments would be transferred. The existing BSB number and account number system would thus be replaced with a unique customer account number with the clearing house and central registry acting as a mechanism for rerouting payments. The report alternatively describes the possibility of a de-centralized approach whereby institutions would be held responsible to reroute payments and retain their own account registry of switched account numbers which would be available to other financial institutions (Fraser 2011: 8). The report however, concludes by arguing that the costs involved in building the infrastructure necessary for bank account number portability and for it to function, outweighs the benefits. 
Of interesting note however, the Fraser (2011) report does not provide a reason for why the current BSB and account number could not be merged to form a unique customer account number rather than having to develop a completely new one. Furthermore, the report does not examine whether a current banking institution, such as one of the four big banks could manage the centralized payments system, which could be checked by the remaining big banking institutions and would avoid the costs of establishing a new institution. Perhaps a simpler alternative however, could be to merge the current BSB and account number in order to form a unique customer account number rather than having to develop a completely new one. This parallels the mobile numbering approach where two digits after ‘04’ previously indicated the network operator and now only do so for non-ported numbers. 
4.7.5 Additional detailed option for bank account number portability 
There is also a report by Jain and Kudidhi (2010) from the Infosys Institute that envisages a similar but much more detailed idea of how bank account number portability could be implemented, compared to the Fraser (2011) and Financial Conduct Authority (2015) report. The authors propose a method that entails a local database for each institution to initiate switching requests, as well as a central database with all customer account numbers that would be accessible to all banking institutions. A clearing house agency would be given the responsibility to manage this database by updating the requests made by the new serving bank and informing the old serving bank of the customer’s request to switch. The old serving bank would be responsible for undertaking closure procedures including cancellations of ATM/Debit cards and transferring to the new bank the customer’s details whilst informing the clearing agency of this process. Finally, the new bank would perform a KYC process requirement and make switching requests via its local database that is connected to the central database. The report however, does not provide any assessment of the costs involved in this bank account number portability initiative. A centralised database system is also important and is sometimes regarded as a high cost item. However, a process could be established where one of the four big banks manages the database, which is then checked by the remaining big banking institutions. This would avoid the costs of establishing a new institution. In the telecommunications sector, Telstra runs the equivalent data repository known as the Integrated Public Number Database.

Observation and Injury: Drones and Residential Tenancies

'Self-Defense Against Robots and Drones' by A. Michael Froomkin and Zak Colangelo in (2015) 48(1) Connecticut Law Review comments
Robots can pose - or can appear to pose - a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.
The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases - drone overflights, autonomous cars, national, state, and even local regulation - may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots notably the risk that the robot (or drone) may be spying - perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.
We argue that the scope of permissible self-help in defending one's privacy should be quite broad. There is exigency in that resort to legally administered remedies would be impracticable; and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great - or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner. 
The paper concludes with a brief examination of what if anything our survey of a person's right to defend against robots might tell us about the current state of robot rights against people.
'Public Opinion and the Politics of the Killer Robots Debate' by Michael C. Horowitz comments
The possibility that today’s drones could become tomorrow’s killer robots has attracted the attention of people around the world. Scientists and business leaders from Stephen Hawking to Elon Musk recently signed a letter urging the world to ban autonomous weapons. Part of the argument against these systems is that they violate the public conscience provision of the Martens Clause due to public opposition, making them illegal under international law. What, however, does the US public think of these systems? Existing research suggests widespread US public opposition, but only asked people about support for autonomous weapons in a vacuum. This paper uses two survey experiments to test the conditions in which public opposition rises and falls. The results demonstrate that public opposition to autonomous weapons is extremely contextual. Fear of other countries or non-state actors developing these weapons makes the public significantly more supportive of developing them. The public also becomes much more willing to actually use autonomous weapons when the alternative is sending in US troops. Beyond contributing to ongoing academic debates about casualty aversion, the microfoundations of foreign policy, and weapon systems, these results suggest the need for modesty when making claims about how the public views new, unknown, technologies such as autonomous weapons.
In New Zealand the Privacy Commissioner has released Case Note 267458 [2015] NZ PrivCmr 6 regarding an objection to filming via a broadcaster's drone flying near his apartment.

The Commissioner states
We recently completed our first investigation into a complaint about a drone. This concerned Sky TV using a drone with a camera to film a cricket match. During the game the drone flew close (within 10 metres) to the complainant’s apartment which overlooked the cricket venue. The complainant was irritated by this and gave the drone “the fingers”.  
The complainant complained to us that he thought the drone may have captured highly sensitive information in an unreasonably intrusive manner. He said he was unsure whether the drone had been filming or who may have seen the footage. He had not given consent. 
This complaint raised issues under principles 1 - 4 of the Privacy Act 1993 which deal with the collection of personal information. These principles specify when personal information can be collected and for what purpose; what an individual should be told when their information is collected, and how information should be collected. 
We contacted Sky TV about the complaint. Sky TV said that when their producer wanted to look at footage from the drone, he would radio the drone operator and inform him that he would begin recording the drone visuals from the air. 
Sky TV said that despite how it appeared, the drone was not recording footage the entire time it was in the air. Sky TV accepted that its drone may have flown past the complainant’s property, but said the drone had not recorded or broadcast images of the complainant, or the inside of his property. 
Sky TV also said the TV control room did not view any footage of the complainant or his property. Sky TV said it did record and broadcast coverage of two women who were on the balcony of an apartment. The Sky TV drone operator who was standing on a tower could, by line of sight, see the two women on their balcony. He indicated by hand gestures that he wanted to film them and by return hand gestures they indicated their consent to that recording. This was the only footage that was broadcast of identifiable individuals.
Consent by hand gestures and happy faces?

The Commissioner further states
For us to find a breach of principles 1 – 4 of the Act, personal information needs to be collected. There was no evidence in this instance that Sky TV had collected information about the complainant, therefore in this case we found no breach of the Privacy Act.
The complaint was also investigated by the Broadcasting Standards Authority, counterpart of ACMA, which found no breach under the Broadcasting Act 1989 (NZ).

The Victorian Law Reform Commission's  Photographing and Filming Tenants’ Possessions for Advertising Purposes report is now available. It quotes my submission regarding privacy aspects.

The Terms of Reference for the inquiry were
The Victorian Law Reform Commission will consider and review aspects of the Residential Tenancies Act 1997 (Vic) and other laws relevant to the practice of publishing photographs of residences which include tenants’ possessions when advertising rented properties for sale or lease. 
The Commission will: • Identify the practices that are commonly followed by landlords and landlords’ agents who photograph tenanted residential properties. • Examine the effect of the practices on tenant privacy, security and possessory rights, as well as the tenant’s ‘right to quiet enjoyment’ under the Residential Tenancies Act 1997 (Vic) (s 67). • Determine the source, scope and adequacy of the legal basis on which landlords and their agents rely when photographing and publishing images of tenants’ possessions. • Consider whether the current law provides adequate access for landlords and their agents for the purposes of advertising rented premises for sale or lease. • Consider whether the current avenues of dispute resolution available to tenants, landlords and landlords’ agents are sufficient and effective if disputes arise. 
The Commission will consider legislative developments in Australian and international jurisdictions, with a particular focus on Queensland and Tasmania.
The report states
 Although the Residential Tenancies Act 1997 (Vic) (RTA) reflects several decades of debate about how to balance the interests of tenants and landlords, it does not address the practice of entering the leased premises to take or use advertising images of tenants’ possessions. 
In 1997, when the Act was adopted, Google did not exist, almost all household internet access in Australia was via dial-up connection, and prospective tenants and buyers found a home by looking at brochures and physically inspecting the property. In today’s digital world, the online distribution of advertising images transcends physical boundaries. While this has enhanced the capacity of owners to reach prospective tenants and buyers, it has also triggered tenant concerns about their inability to control the dissemination of personal and sensitive information, and about their exposure to theft and personal harm. 
This report forms part of the Commission’s community law reform program, which enables members of the community to contribute their ideas about how the law could be improved. Under the Victorian Law Reform Commission Act 2000 (Vic), the Commission may initiate inquiries into issues of limited legal size and scope but of general community concern. The Commission initiated this inquiry after the Tenants Union of Victoria expressed concern that the taking and use of advertising images is not supported by a clear legislative framework, leaving tenants uncertain about their rights. 
While a number of landlords and agents have been taking and using advertising images of tenants’ possessions without obtaining tenant consent in the belief that it is lawful for them to do so, the Commission is of the opinion that they are mistaken. It is unlawful for a landlord or agent to enter other than in accordance with the RTA and the Commission considers that the RTA does not permit entry for the purpose of taking advertising images without tenant consent. 
In this environment, practices have emerged that often leave tenants beholden to the goodwill and professionalism of landlords and agents when it comes to responding to tenants’ concerns. While many landlords and agents fairly negotiate with tenants to address their concerns, too often this is not the case. 
In response to this issue, legislators in Queensland have introduced a tenant consent requirement when a landlord or agent wishes to use advertising images that show tenants’ possessions. The Commission is of the view that this unduly restricts the capacity of landlords to advertise their properties effectively. 
The Commission’s recommendations adopt a practical middle ground between the current positions in Victoria and Queensland. The Commission proposes that an express right be given to landlords to take and use advertising images, coupled with appropriate safeguards for tenants. In modernising the law, the Commission has sought to maintain a fair balance between the desire of tenants to live in their homes free from unwanted interference, and the desire of landlords to sell and lease their properties.
The report goes on to state
This report examines the law relating to photographs and videos of tenants’ possessions that are used to advertise properties for sale or lease. 
Right to enter 
Under the Residential Tenancies Act 1997 (Vic) (RTA), a landlord or agent may enter a rental property at any time with tenant consent, provided they enter within seven days of obtaining consent. Evidence provided to the Commission suggests that landlords and agents often ask tenants for permission before entering to take advertising images of tenants’ possessions. However, the Commission has also been told of a number of cases in which advertising images of tenants’ possessions have been taken or used without tenant consent, causing distress and harm to the tenants involved. The central question in these situations is whether landlords and agents have a right to enter to take advertising images of tenants’ possessions without first obtaining the tenants’ consent. 
The RTA lists several grounds upon which landlords and agents may enter a rental property without tenant consent. Taking advertising images is not specifically listed as a ground for entry. In this report, the Commission reviews this section of the Act, before reaching the conclusion that these grounds do not establish a right of entry to take advertising images. It follows that entry for this purpose without tenant consent is unlawful. 
The Commission also considers whether the law sufficiently protects the right of landlords to sell their properties while addressing the legitimate concerns of tenants in relation to the taking and use of advertising images that show tenants’ possessions. The Commission is of the opinion that it does not. Accordingly, it recommends establishing a right of entry for landlords and agents that is subject to the legitimate concerns of tenants. These concerns relate to possessions that identify the tenant, reveal sensitive information about the tenant or place the tenant at risk of theft or personal harm. 
Right to use 
The Commission was told that tenants have concerns about advertising images of their possessions being re-used years after they were taken, as well as images that were taken for other purposes being used in advertising material. In both of these instances, the Commission recommends placing an obligation on landlords and agents to obtain the tenants’ written consent before using the images. 
In this report, the Commission reviews stakeholder feedback on the notice of entry provisions in the RTA. It then recommends ways to enhance communication among the parties involved if entering to take advertising images were included in the RTA’s grounds for entry. These recommendations include extending the notice period to seven days, requiring additional information in the notice of entry and permitting the delivery of notices via electronic communication. 
Quiet enjoyment 
The RTA states that landlords must take reasonable steps to ensure the tenant has quiet enjoyment of the rental property.4 The common law right to quiet enjoyment prohibits landlords and agents from substantially interfering with the tenant’s right to possess the property and enjoy it for all usual purposes.5 The Commission concludes that the right to quiet enjoyment would not ordinarily assist tenants with concerns about advertising images, a finding that makes the Commission’s recommendations all the more important.  
Underlying many of the concerns of tenants, landlords and agents is the fundamental role online advertising now plays in selling and leasing a property. The very exposure that enhances the capacity of owners to sell and lease their properties leaves many tenants feeling vulnerable. The Commission’s recommendations strike a balance between the needs of landlords and agents on the one hand, and the needs of tenants on the other.
The Commission's recommendations are
Right to enter 
1 The landlord and landlord’s agent should have an express right to enter to take advertising images. 
2 When exercising the express right to enter to take advertising images:
(a) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image where the tenant has objected in writing to the image being taken because it would show: (i) a possession that directly identifies the tenant or another occupant, (ii) a possession that reveals sensitive information about the tenant or another occupant, regardless of whether that occupant’s identity is also revealed, or (iii) a valuable possession which places the tenant at a heightened risk of theft and it would be unreasonable to expect the tenant to remove or conceal the possession. 
(b) The landlord or landlord’s agent must not take, or permit to be taken, an advertising image showing a tenant’s possessions where the tenant has objected in writing to the image being taken because: (i) the tenant or other occupant is at risk of family or personal violence, and (ii) the image would show possessions that may reveal the identity of that occupant to the person posing the risk. 
Right to use 
3 Where a landlord or landlord’s agent wishes to use an advertising image showing a tenant’s possessions more than 12 months after the image was taken, the landlord or landlord’s agent should be required to obtain the written consent of the tenant or former tenant before using the image. 
4 Where an image showing a tenant’s possessions was taken for a purpose other than advertising, the landlord or landlord’s agent should be required to obtain the tenant’s written consent before using the image for advertising purposes. 
Notice of entry 
5 When relying on the grounds of entry in the Residential Tenancies Act 1997 (Vic) to enter to take advertising images, the landlord or landlord’s agent should be required to: (a) provide the tenant with at least seven days notice; and (b) enter between 8 am and 6 pm except on public holidays, unless the tenant consents to a time of entry outside those hours. 
6 The landlord or landlord’s agent should be required to include the following information in a notice of entry to take advertising images: (a) the purpose of entry; (b) the date and time of entry; (c) the name and contact details of the landlord/agent; (d) the tenant’s opportunity to remove possessions from view; (e) the tenant’s right to object to images being taken in certain circumstances; and (f) the tenant’s right to be present when images are taken. 
7 It should be lawful for the landlord and landlord’s agent to deliver a notice of entry via electronic communication where the tenant has consented. 
8 The standard tenancy agreement should make provision for parties to consent to the delivery of a notice of entry via electronic communication. 
9 If a tenant states that they wish to be present when advertising images are taken, the landlord or landlord’s agent should be required to make a reasonable effort to arrange for the visit to occur at a time when it is convenient for the tenant to be present (having regard to the work and other commitments of both the tenant and the person entering).


'The Messianic Idea in the Schmittean Sovereign and the Basic Norm of Kelsen' by Antoni Abat Ninet comments
The theological origin of legal and political concepts has been an accepted belief by figures such as Locke, Hume, Machiavelli and Hobbes. The list of legal authors will also include Robert Cover's narrative on legal violence, Fitzpatrick, Sanford Levinson and Weiler. The constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. In the US example, the flag, the Declaration and the Constitution constitutes the holy trinity of what Tocqueville called “American civil religion”. The drafters of the US Constitution consciously played the role of a civil God; the US Supreme Court developed the role of secular prophets; the Constitution was the sacred tablets; and the people of the United States became the chosen people. As the law was received by Moses on the tablets, so too did the constitution adopt a legal, moral and religious character. This paper focuses on the study of messianic elements of Carl Schmitt's conceptualization of the "Sovereign" and Hans Kelsen's definition and legitimacy of the "Basic Norm". The main goal are first to identify these theological characters of both theories and to analyse the transposition of mystical elements to the secular world to achieve non-disputed legitimacy in two essential elements of both theories. 
The first segment is related to definition and elements of "messianism" aiming to provide a clear concept of the messianic phenomenon. Once concluding that messianism is no esoteric or simply mysticism, but a theory than can be transposed to politics and law, the paper goes further with the work of Carl Schmitt and Hans Kelsen. How the political (Schmitt) and legal-constitutional (Kelsen) thought have adapted messianic trends in order to achieve legitimacy, recognition or obedience. The role that the "Sovereign" plays in Carl Schmitt's apocalyptic political theology is analysed and compared with the position and features that the Messiah develops in Jewish and Christian mysticisms. The second example, which is at the same time more provocative but also innovative, consists in a comparison of the messianic thought with Hans Kelsen's "Basic Norm". More concretely, the redemptory role that the first constitution plays in Kelsen's "Pure Theory of Law" and the "faith" needed to accept the no matter how, the constituent process of the basic norm. This segment identifies these "religious" messianic elements in politics, explains them, and how they can be (and have been) used to achieve legitimacy, recognition and/or obedience. The last segment will analyse other exploited by politicians to gather people together under their leadership. 
The field of the paper is theoretical, the realm of the theory more than in the realm of praxis, the paper does not look for practical intentions even that some of the conclusions may have practical effects in the understanding of our constitutional systems. In this sense, the conceptualization and claims of terms such as "rule of law", "proportionality", "European Integration" or "human dignity" can also be defined as messianic.
'Natural Law and Political Ontology: A Historico-Philosophical Outline of a Major Human Transformation' by Tomas Berkmanas in (2014) 7(2) Baltic Journal of Law & Politics 119-151 is described as exploring
the possibility of comprehending natural law, together with an alternative to the Schmittean political, through an inquiry into the layers of professional philosophy with a special focus on epistemology and analytic philosophy. The starting point of the research is the controversy surrounding the ideas of Carl Schmitt, in which it is unclear what lies at the origin of law and the political — sovereign decision or the situation (Part I)? The latter possibility directs the inquiry to the conceptual field related to natural law and epistemology. Proceeding via both diachronic and synchronic perspectives, the inquiry further analyses what has happened to natural law in modernity, and what its current status is, theorizing both streams of inquiry under the concept of political exile (Part II). The Schmittean political happens to be very much at home in this context, opening up the coherent ideological framework that may be called modern political ontology, which at first appears to camouflage Schmittean antagonistic political praxis (Part III). However, through inquiry into ideas mostly attributable to analytic philosophy (or philosophy of language), this ontology is also shown to function as an ‘anti-onto’-logy — that is, as a direct (i.e. open, not hidden) ideological basis for modern political praxis. The analysis here also discloses the rivalry inside professional philosophy in relation to ‘anti-onto’-logy, the latter finding its disciplinary origin(s) in language itself. It shows that at the level of professional philosophy there is a general trend that could be helpful in the attempt to revive natural law (Part IV).

PMCH Review

The review of the Protection of Movable Cultural Heritage Act 1986 (Cth) is now mid-way.

In announcing the review last month the Attorney-General stated that the Act
protects Australia’s movable cultural heritage and provides for the return of foreign cultural property which has been illegally exported from its country of origin and imported into Australia. It gives effect to Australia’s agreement to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970
The Protection of Movable Cultural Heritage Act 1986 has not been significantly amended since its enactment, and the scope of the proposed Review is therefore intentionally broad. It will consider the existing framework for the protection of movable cultural heritage material in Australia, as set out in the Protection of Movable Cultural Heritage Act 1986 and the Protection of Movable Cultural Heritage Regulations 1987
The Review will focus on the appropriate settings for protection and regulation in this area, and explore other, similar protection schemes in Australia and other international models for the protection of cultural property: 
Which objects are protected, including having regard to the following:
  • What are the categories and types of Australian cultural objects which should be protected via regulation? 
  • What are the appropriate thresholds and definitions of significance? 
  • What levels of protection should be extended to foreign material?
 How Australia’s international obligations are fulfilled, including having regard to the following: 
  • How Australia implements the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970
  • How this scheme interacts with the obligations under the UNESCO Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1956; and 
  • Whether there are other international conventions or practices which provide useful benchmarks or guidance?
How this protection is administered, including having regard to the following:
  • What is the most effective framework for protecting Australia’s cultural heritage? 
  • How are decisions regarding specific objects best made? 
  • How is the scheme best enforced?
The Review may also examine and report on any other issues considered relevant or incidental, and will consult with stakeholders as is thought necessary. It will report to the Australian Government Minister for the Arts by 30 September 2015.

24 August 2015

Genomics, Property and Privacy

'Privacy, Personhood, and Property in the Age of Genomics' by Wendy Bonython and Bruce Baer Arnold in (2015) 4(3) Laws 377-412 comments
Revolutions in genetic technology have heralded the age of population-scale genomic metadata. This article analyzes the tensions and gaps between traditional conceptions of personhood and international legal responses to a person’s right over disembodied data obtained from his/her body. The opportunities for breakthroughs in healthcare by interrogating population-scale genomic databases are accompanied by questions about privacy, property, dignity, and the nature of information regulation in a global economy. This article highlights instances where law and policy makers have grappled with these challenges, and foreshadows some emerging future challenges. It also highlights differences between jurisdictions, and calls for greater global participation in the development of a coherent framework, rather than continued reliance on a small number of stakeholders, to develop that framework.

Credit Referencing

'Pre-Modern Credit Networks and the Limits of Reputation' by Emily Kadens in (2015) 100 Iowa Law Review examines
pre-modern European credit networks to question a fundamental assumption of private ordering scholarship that a good reputation is so critical to the functioning of a private system that its maintenance incentivizes members of the community to keep their promises and act honestly. Pre-modern credit networks, which involved the whole society in interlocking webs of credit and debt, arose from the actions of individuals who offset the lack of sufficient specie by inventing credit mechanisms to solve the problem of purchase and sale. Governments played little to no role in creating these solutions. Reputation, to some extent, did drive lending decisions, but reputation did not reliably parallel a good history of timely repayment. Default, it turns out, was not a simple binary concept in the past, and, consequently, neither were the decisions about extending credit. The article argues that reputation, or at least reputation in the sense we might understand it today, did not bear quite the weight which private ordering theory assigns to it. This appears to be due in part to a more expansive pre-modern sense of what it meant to keep a promise, in part to the role of higher-level notions of confidence and reciprocity that transcended individual debtors to encompass whole communities of lenders and borrowers, and in part to the availability of public institutions, both lay and ecclesiastical, to sanction nonpaying debtors.

Family Law and Child Protection

The Family Law Council 144 page interim report into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems has been released by the national Attorney-General.

The report was commissioned in October last year
in response to increasing concerns about the parallel operation of the federal family law and state and territory child protection and family violence systems, and how that parallel operation may inadvertently contribute to greater risks for those affected by family violence and other complex needs.
The Attorney-General comments
The Council has provided a detailed and thoughtful report to Government on the first two terms of the reference. The report addresses the prospect of having a more streamlined, coherent and integrated approach to improve the overall safety of families and in particular children, when involved in the family law, child protection and family violence jurisdictions.  
I look forward to receiving the Council’s full report in June 2016. It will advise me on issues concerning enhanced collaboration and information sharing between the family courts and family relationship services as well as other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.
The report notes
At the outset, Council notes the significant commitment to improving the interface between the family law, child protection and family violence systems across the organisations, services and individuals who contributed to this reference. Council also notes the complexities of this endeavour and that some stakeholders supported a measured approach to creating a more integrated system for children and families. At the same time, Council is aware of the urgency of the task, and that many of those who assisted Council in its work on this report regard this matter as an issue that should be given priority by all governments in Australia. Council also notes the concern that any reforms should be adequately resourced.  
The remainder of this chapter provides an overview of the empirical and practice context for the issues discussed in this report. This includes a description of recent developments affecting the family law system (at 1.1), followed by descriptions of the law and practice governing children's courts and child protection matters in Australia (at 1.2) and the law and practice governing parenting matters in the family law system (at 1.3). The final section of this chapter describes a recent reform proposal in Western Australia to enhance collaboration between the child protection and family law systems in that state (at 1.4).  
Chapter 2 focuses on question 1 of the terms of reference, which asks Council to report on the legal and practical obstacles to greater co-operation between the family law and child protection systems. This chapter draws on the submissions and consultations to describe the key areas of intersection and gaps between these systems, and the difficulties experienced by families and services associated with these circumstances. This chapter also examines the capacity for transferring proceedings between the federal family courts and state and territory children's courts and the legal and practical limitations of this approach as a solution to the problems described by stakeholders.  
Chapters 3 and 4 focus on the second question of Council’s terms of reference about the capacity for providing the children's courts and family courts with a measure of co-extensive jurisdiction, and the benefits and challenges of doing so.  
Chapter 5 draws on the submissions and consultations to explore the possibilities for creating specialist multi-jurisdiction family violence courts based on the principle of ‘one family, one judge’. This chapter also provides a description of the practice and policy context governing the making of family violence protection orders by state and territory magistrates courts, which are often the first point of contact with the legal system for families with complex needs.  
Chapter 6 draws on the submissions and consultations to canvass ways in which the working relationships between the child protection and family law systems might be improved within current jurisdictional frameworks. This chapter explores areas of effective and promising practice and ideas for enhancing the integration of services across the different systems.  
Chapter 7 sets out Council’s views and preliminary recommendations about these issues.