05 September 2015

Regulation and Food Pyramids

'Corporate Practices and the Implementation of Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children' (Sydney Law School Research Paper No. 15/41) by Belinda Reeve comments
The success of self-regulation depends upon whether companies internalise the social norms contained in voluntary codes. Accordingly, this chapter describes how and why food and alcohol companies comply with voluntary advertising initiatives (to the extent that they do). It draws upon interviews conducted with representatives of signatories to the RCMI, QSRI and ABAC, who have been given pseudonyms to protect their anonymity. The chapter also analyses selected food and alcohol company corporate social responsibility documents, as well as findings from the independent review of food industry self-regulation, published in 2012. I describe how transnational food and alcohol companies have attempted to meet public demands for more responsible marketing practices through their corporate social responsibility (CSR) practices. Then I describe the reasons that Australian food and alcohol companies give for adopting advertising self-regulation and how they integrated code requirements into their marketing activities. I present the paradox that some companies are adhering tightly to voluntary initiatives, yet self-regulation has had little impact on children’s overall exposure to food and alcohol advertising. One explanation for the codes’ lack of impact lies in their weak substantive standards. While this is not fatal to the success of self-regulation, I conclude that food companies have few incentives to adopt the more demanding restrictions that could significantly improve the food marketing environment. 
Reeve's 'The Business of Public Health? Health Sector Participation in Food Industry Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children' (Sydney Law School Research Paper No. 15/42), another part of her PhD dissertation, comments on
 the possibility of enhancing stakeholder participation in food industry self-regulation as a way of strengthening the public’s interest in the program. I use the alcohol industry’s ABAC Scheme as an example of what a more collaborative approach might look like in practice, as it includes both public health and government representation in its governance processes. The chapter draws upon data from interviews with representatives of nine public health advocacy organisations and research institutes and two interviews with academic researchers. I also present findings from interviews with two representatives of alcohol trade associations, one member of the ABAC Management Committee, two members of the ABAC Adjudication Panel and a representative of the Advertising Standards Bureau. The chapter begins by discussing the increasing use of collaborative initiatives in public health. Next I explore the extent to which public health advocates influence food and alcohol industry self-regulation, both indirectly and by participating in self-regulatory processes. Then I report on whether public health interviewees thought it would be appropriate for public health stakeholders to join non-statutory, quasi-regulatory processes governing food advertising, similar to the ABAC Scheme. I conclude by arguing against external stakeholder participation in industry-based schemes, at least in the absence of government intervention and oversight, because of the significant risk that public health interests will be subverted by those of industry.

04 September 2015

Citizenship

The Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by the Parliamentary Joint Committee on Intelligence and Security features the following recommendations
Conduct-based provisions – proposed sections 33AA and 35
R 1 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to limit the operation of proposed section 33AA to individuals who have: engaged in relevant conduct offshore; or engaged in relevant conduct onshore and left Australia before being charged and brought to trial in respect of that conduct.
R 2 The Committee recommends that changes be made to clarify that the conduct leading to loss of citizenship listed in proposed section 33AA of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is intended to be considered in light of the meaning of the equivalent provisions in the Criminal Code Act 1995, and is not intended to be restricted to the physical elements. The Committee recommends that, if possible, these amendments be made in the Bill, with additional amendments to the Explanatory Memorandum where necessary.
R 3 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to include explicit criteria that the Minister must be satisfied of before declaring a terrorist organisation for the purpose of proposed section 35. The criteria should make clear the connection between proposed section 35 and the purpose of the Bill.
R 4 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to make the Minister’s declaration of a ‘declared terrorist organisation’ for the purpose of proposed section 35 a disallowable instrument. Further, the Committee recommends that the Bill be amended to enable the Parliamentary Joint Committee of Intelligence and Security to conduct a review of each declaration and report to the Parliament within the 15 sitting day disallowance period.
R 5 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and the Explanatory Memorandum be amended to clarify the intended scope of the term ‘in the service of’ a declared terrorist organisation. In particular, the Bill should be amended to make explicit that the provision of neutral and independent humanitarian assistance, and acts done unintentionally or under duress, are not considered to be ‘in the service of’ a declared terrorist organisation for the purposes of proposed section 35.
R 6 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and the Explanatory Memorandum be amended to provide that staff members or agents of Australian law enforcement or intelligence agencies are exempted from sections 33AA and 35 of the Bill when carrying out actions as part of the proper and legitimate performance of their duties.
Conviction-based provisions – proposed section 35A
R 7 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to give the Minister discretion to revoke a person’s citizenship following conviction for a relevant offence with a sentence applied of at least six years imprisonment, or multiple sentences totalling at least six years’ imprisonment. In exercising this discretion, the Minister should be satisfied that:  the person’s conviction demonstrates that they have repudiated their allegiance to Australia, and it is not in the public interest for the person to remain an Australian citizen, taking into account the following factors:
  • the seriousness of the conduct that was the basis of the conviction and the severity of the sentence/s, 
  • the degree of threat to the Australian community, 
  • the age of the person and, for a person under 18, the best interests of the child as a primary consideration, 
  • whether the affected person would be able to access citizenship rights in their other country of citizenship or nationality, and the extent of their connection to that country, 
  • Australia international obligations and relations, and 
  • any other factors in the public interest.
The rules of natural justice should apply to the Minister’s discretion under section 35A.
R 8 The Committee recommends that the list of relevant offences in proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to remove reference to section 29 of the Crimes Act 1914.
R 9 The Committee recommends that the list of relevant offences in proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to exclude offences that carry a maximum penalty of less than 10 years’ imprisonment and certain Crimes Act offences that have never been used. The Committee notes that the following offences would be removed:
  • s 80.2, Criminal Code Act 1995, Urging violence against the Constitution, the Government, a lawful authority of the Government, an election, or a referendum, 
  • s 80.2A(1) Criminal Code Act 1995, Urging violence against groups, 
  • s 80.2B(1) Criminal Code Act 1995, Urging violence against members of groups, 
  • s 80.2C, Criminal Code Act 1995, Advocating terrorism, 
  • s 25 Crimes Act 1914, Inciting mutiny against the Queen’s Forces, 
  • s 26 Crimes Act 1914, Assisting prisoners of war to escape, and 
  • s 27(1) Crimes Act 1914, Unlawful drilling.
R 10 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be applied retrospectively to convictions for relevant offences where sentences of ten years or more have been handed down by a court. The Ministerial discretion to revoke citizenship must not apply to convictions that have been handed down more than ten years before the Bill receives Royal Assent.
Administrative application of the Bill
R 11 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended such that section 39 of the Australian Security Intelligence Organisation Act 1979 is not exempted, and consequently a security assessment would be required before the Minister can take prescribed administrative action.
R 12 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to provide that, if citizenship is lost (under proposed sections 33AA or 35) or revoked (under proposed section 35A), then the Minister must provide, or make reasonable attempts to provide, the affected person with written notice that citizenship has been lost or revoked. Such notice should be given as soon as possible, except in cases where notification would compromise ongoing operations or otherwise compromise national security.  If the Minister has determined not to notify the affected person, this decision should be reviewed within six months and every six months thereafter.
R 13 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to provide that, where the Minister issues a notice to the affected person advising that their citizenship has been lost or revoked, the notice must include:  the reasons for the loss of citizenship, and an explanation of the person’s review rights.
R 14 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to include the rights of review available to a person who has lost their citizenship pursuant to proposed sections 33AA, 35 or 35A.
R 15 The Committee recommends that proposed sections 33AA(7) and 35(6) of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Minister,  to give consideration to exercising the discretion to exempt a person from the effects of the relevant provisions upon signing the relevant notice, and  when considering whether to exercise the discretion to exempt, to take into account the following factors:
  • the severity of the conduct that was the basis for the notice to be issued, 
  • the degree of the threat posed by the person to the Australian community, 
  • the age of the person, and for persons under 18 years of age, the best interests of the child as a primary consideration, 
  • whether a prosecution is underway, or whether the person is likely to face prosecution for the relevant conduct, 
  • whether the affected person would be able to access the citizenship rights in their other country of citizenship or nationality, and the extent of their connection to that country, 
  • Australia’s international obligations and relations, and 
  • any other factors in the public interest.
R 16 The Committee recommends that proposed sections 33AA and 35 of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that citizenship is taken never to have been lost if the facts said to ground a finding of fact concerning loss of citizenship are subsequently found to have been incorrect.
R 17 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to give the Minister power to annul a revocation decision if the relevant conviction is later overturned on appeal or quashed, such that the person’s citizenship is taken never to have been lost.
R 18 The Committee recommends that the Explanatory Memorandum to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that: the giving of notice under proposed sections 33AA and 35 is intended to constitute official recognition that a person’s citizenship has ceased by operation of one of the provisions, and any consequential action by Government agencies will only take place after the notice has been issued pursuant to the Bill’s provisions.
R 19 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that if the Minister exempts a person from the effect of proposed sections 33AA or 35, the person is taken never to have lost their citizenship.
Children
R 20 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to limit the extent of its application to children. The amendments should provide:  that no part of the Bill applies to conduct by a child aged less than 10 years, and  that proposed sections 33AA and 35 do not apply to conduct by a child aged under 14 years. The amendments should make the Bill’s application to children explicit on the face of the legislation. The Committee notes that in relation to proposed section 35A, section 7.2 of the Criminal Code Act 1995 or section 4N of the Crimes Act 1914 will apply to a child aged 10 to 14 years.
R 21 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended so that section 36 of the Australian Citizenship Act 2007 (which enables the Minister to revoke a child’s citizenship following revocation of a parent’s citizenship) does not apply to proposed sections 33AA, 35 and 35A.
Concluding comments
R 22 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Government to publicly report, every six months, the number of times a notice for loss or revocation of citizenship has been issued under each of the grounds contained in Bill, and provide a brief statement of reasons.
R 23 The Committee recommends that Intelligence Services Act 2001 (IS Act) be amended to extend the functions of the Parliamentary Joint Committee on Intelligence and Security to include monitoring and reviewing the performance by the Department of Immigration and Border Protection of its functions under the provisions of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The extended functions should be consistent with the Committee’s current remit under the IS Act. The IS Act should also be amended to enable relevant agency heads to brief the Committee for the purpose of this new function.
R 24 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Minister to advise the Parliamentary Joint Committee on Intelligence and Security upon issuing a notice for the loss of citizenship under the Bill. A subsequent briefing should be offered to the Committee within 20 sitting days of the initial notice being issued. The advice given to the Committee should detail whether notice has been provided to the person, the conduct that engaged the Bill’s provisions and whether an exemption has been given by the Minister.
R 25 The Committee recommends that the Independent National Security Legislation Monitor Act 2010 be amended to require the Independent National Security Legislation Monitor to finalise a review of the revocation of citizenship provisions in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by 1 December 2018.
R 26 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a review of the revocation of citizenship provisions in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by 1 December 2019.
R 27 The Committee recommends that, following implementation of the recommendations in this report, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be passed.

02 September 2015

Law Journals

'In Praise of Law Reviews (And Jargon-Filled, Academic Writing)' by Cass Sunstein in Michigan Law Review (forthcoming) comments
Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

01 September 2015

Affordances

'Can Americans Resist Surveillance?' by Ryan Calo in University of Chicago Law Review (Forthcoming) analyses
the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technology, and put market pressure on companies not to cooperate with law enforcement. 
In practice, however, many of these avenues turn out to be limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn the citizen into a target. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced. 
By way of method, this essay adopts James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This essay hopes to leverage these concepts to lend structure to an otherwise haphazard inquiry into the capability of citizens to perceive and affect surveillance. The essay meanwhile contributes to affordance theory by insisting that law itself represents an important affordance.
'Online Price Discrimination and Data Protection Law' (Amsterdam Law School Research Paper No. 2015-32) by Frederik J. Zuiderveen Borgesius comments
Online shops can offer each website customer a different price – a practice called first degree price discrimination, or personalised pricing. An online shop can recognise a customer, for instance through a cookie, and categorise the customer as a rich or a poor person. The shop could, for instance, charge rich people higher prices. From an economic perspective, there are good arguments in favour of price discrimination. But many regard price discrimination as unfair or manipulative. This paper examines whether European data protection law applies to personalised pricing. Data protection law applies if personal data are processed. This paper argues that personalised pricing generally entails the processing of personal data. Therefore, data protection law generally applies to personalised pricing. That conclusion has several implications. For instance, data protection law requires a company to inform people about the purpose of processing their personal data. A company must inform customers if it personalises prices.

31 August 2015

Refugees Inquiry

Taking responsibility: conditions and circumstances at Australia's Regional Processing Centre in Nauru, the final report by the Senate Select Committee on the Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, features the following recommendations
R1 ... that, consistent with the terms of the Memorandum of Understanding and related arrangements between the governments of Australia and Nauru, Australia ensure that support and assistance is provided to Nauru's police, judicial, prosecutorial and other law and justice entities to the extent necessary to ensure that Nauru's justice system meets the standards of accountability and probity required by Australian and international law.  
R2 ... that the Government of Australia, in consultation with the Government of Nauru, agree on and publicly commit to a model timeframe for refugee status determinations, and that Australia provide the Government of Nauru with the support necessary to achieve faster and more predictable processing of claims.  
The committee further recommends that asylum seekers be informed about the steps being taken to process their claims, be regularly updated on the progress of the claim, and that an explanation be provided to asylum seekers when model timeframes are not met.
R3 ... that the Immigration Ombudsman undertake independent external review of all complaints involving the conduct of Australian-funded staff or contractors at the Regional Processing Centre, and that the government ensure that the office of the Ombudsman is adequately resourced to do so.
The committee further recommends that the Ombudsman report to parliament on an annual basis on the number and nature of the complaints received and the outcomes of the Ombudsman's assessment of them.
R4 ... that briefing be required to be provided to all asylum seekers on their rights to lodge complaints with independent bodies such as the Immigration Ombudsman, the Australian Human Rights Commission and the International Committee of the Red Cross, both generally and in specific response to any complaints made.
R5 ... that Australia increase the transparency of conditions and operations at the Regional Processing Centre, including by ensuring the provision of reasonable access, in negotiation with the Government of Nauru as necessary, by the Australian Human Rights Commission and by the media.
R6 ... that the Department of Immigration and Border Protection require, in its contracts with service providers, that comprehensive drug and alcohol testing be conducted on staff employed at the Regional Processing Centre on Nauru, including daily random tests for both alcohol and drugs.
R7 ... that the Department of Immigration and Border Protection provide full and disaggregated accounts in its Portfolio Budget Statements, annual reports and other relevant reports to Parliament and to the Australian public, of the expenditure associated with the Regional Processing Centre on Nauru. This accounting should include detailing costs specific to the Nauru RPC, as well as related support and assistance provided by the Australian Government to the Republic of Nauru.
R8 ... that a full and disaggregated account of all works conducted in association with the Regional Processing Centre to date be reported by the Department of Immigration and Border Protection to the Senate.
The committee recommends that a clarification be provided to the Senate by the Department of Immigration and Border Protection as to why exemptions on the grounds of assistance to foreign governments apply to expenditure associated with the Regional Processing Centre on Nauru.  
The committee further recommends that all expenditure associated with the Regional Processing Centre on Nauru, including expenditure considered to be assistance to a foreign government, should be specifically reported to the Senate Legal and Constitutional Affairs Legislation Committee before each estimates round. 
R9 ... that the Australian Government continue to review the operation of the Regional Processing Centre with a view to expanding open centre arrangements. The committee recommends that the Regional Processing Centre on Nauru move toward becoming a more open, lower security living arrangement for all asylum seekers except where there is a compelling reason for an asylum seeker to be accommodated more securely.  
The committee recommends that any savings resulting from the implementation of an open centre model be redirected toward improving the living conditions of asylum seekers in the Regional Processing Centre, with a focus on humane living arrangements, services and amenities, including improved access to communications. The committee recommends that the Department of Immigration and Border Protection report publicly and to the Senate within 12 months on progress in this regard. 
R10 ... that the government commit to and publicly release a medium to long term plan for the completion of permanent infrastructure at the Regional Processing Centre on Nauru, including the construction of solid accommodation structures, and for tangible improvements to amenities for asylum seekers including lighting, water, toilets, air conditioning, cooking facilities and communications. 
The committee is convinced that welfare services must be provided by a dedicated welfare service provider with the required experience and accreditation to undertake such work. The committee recommends that a non-government organisation be contracted directly by the Department of Immigration and Border Protection to provide welfare services to all asylum seekers within the Regional Processing Centre on Nauru. 
R11 ... that the government extend its current policy commitment to remove children from immigration detention to the maximum extent possible, to include the removal of children from the Regional Processing Centre in Nauru. The government should develop a plan for the removal of children from the Nauru RPC as soon as possible, with their families where they have them, to appropriate arrangements in the community. 
R12 ... that the Australian Government commit to and publicly state a specific plan for addressing the educational needs of asylum seeker and refugee children in Nauru.  
R13 ... that the Department of Immigration and Border Protection, in consultation with the Australian Federal Police, undertake a full audit of all allegations of sexual abuse, child abuse and other criminal conduct reported to the Australian Human Rights Commission, to the Moss Review and to this inquiry, seeking the agreement of these bodies to share confidential information where necessary to conduct such an audit. 
The committee further recommends that, taking into account the need to protect personal privacy, the minister should report to the Senate by the end of December 2015, and every six months thereafter, setting out all allegations of a criminal nature made in relation to the RPC, and the action taken by the department and other relevant authorities in response. 
R14 ... that legislation be passed by the Australian Parliament requiring the mandatory reporting of any reasonably suspected unlawful sexual contact, sexual harassment, unreasonable use of force or other assault perpetrated against asylum seekers at the Regional Processing Centres, under similar terms as the mandatory reporting provisions contained in existing Commonwealth, state and territory laws. 
Such legislation should require that the reporting is made to the Department of Immigration and Border Protection and the Australian Federal Police, as well as any relevant state, territory or foreign police force and, where the matter relates to a child, child protection authorities in any relevant jurisdictions. The legislation should utilise Category C or D extraterritorial jurisdiction to apply in Nauru, and impose penalties for noncompliance comparable with those which apply in existing legislation within Australia. 
R15 Given the committee's concerns about the level of accountability and transparency that currently applies to the operation of the regional processing centre in the Republic of Nauru, the committee recommends that the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 31 December 2016:
a) conditions and treatment of asylum seekers and refugees at the Regional Processing Centre in the Republic of Nauru; 
b) transparency and accountability mechanisms that apply to the Regional Processing Centre in the Republic of Nauru;  
c) implementation of recommendations of the Moss Review in relation to the regional processing centre in the Republic of Nauru; 
d) the extent to which the Australian funded regional processing centre in the Republic of Nauru is operating in compliance with Australian and international legal obligations;  
e) the extent to which contracts associated with the operation of offshore processing centres are: • delivering value for money consistent with the definition contained in the Commonwealth procurement rules; • meeting the terms of their contracts; • delivering services which meet Australian standards; and   
f) any related matter.