06 May 2016


'The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States' by Marie-Amelie George in (2015) 24 Journal of the History of Sexuality 225 comments
Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978. 
This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.

05 May 2016


Two US perspectives on online defamation.

'The Death of Slander' by Leslie Yalof Garfield (2011) 35 Columbia Journal of Law and Arts 17 argues 
Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone’s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person-to-person communication. Text messaging, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise.
At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one’s voice. Because of slander’s presumed evanescence, common law required plaintiffs to plead special damages—proof of economic harm—in order to recover for slander. The advent of broadcast technology, with its ability to amplify the spoken word, challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech—permanence or breadth of dissemination—was more important. Post-broadcast technology has further complicated the defamation arena, leaving parties unsure of how best to plead their defamation case.
In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of widespread dissemination through quick, nonreflective and often passing statements. This past year, for example, Wael Ghonim’s tweet to join him in an Egyptian village square lead to the downfall of Egypt’s political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This Article considers how courts should rule when these tweets, or text messages, not quite printed, not quite spoken, are defamatory.
This Article argues that the advent of text messaging, tweeting and other forms of digital communication, which I call “technospeech,” renders the medieval tort of slander irrelevant in today’s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander.
The libertarian 'Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World' by RonNell Andersen Jones and Lyrissa Barnett Lidsky in Virginia Journal of Social Policy and the Law (Forthcoming) argues
Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without licensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines — the so-called opinion privilege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiffs who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of, or reckless disregard for, its falsity. Given the critical role these two constitutional doctrines play in protecting free expression, it is especially crucial that courts apply them in social-media cases with due regard for the unique aspects of the medium.
This article’s analysis of early social-media cases reveals that many — though by no means all — courts addressing these cases appreciate that social media are different than the media that preceded them. However, some of these courts have floundered in adapting constitutional doctrines. The Article addresses the most difficult new issues faced by courts and offers specific prescriptions for adapting the opinion privilege and actual malice rule to social media. It recommends that the opinion privilege be applied based on a thorough understanding of both the internal and external contexts of social-media expression and that this broad reading of the opinion privilege be offset by a narrow reading of actual malice in cases involving delusional or vengeful social-media speakers.

04 May 2016

OAIC off death row

Attorney-General George Brandis appears to have belatedly resiled from his recurrently-stated commitment to abolish the Office of the Australian Information Commissioner (OAIC).

Last night's Budget Papers feature the following item -
The Office of the Australian Information Commissioner (OAIC) is an Australian Government entity established under the Australian Information Commissioner Act 2010.
The functions of the OAIC include:
• privacy functions - ensuring proper handling of personal information in accordance with the Privacy Act 1988 and other legislation
• freedom of information (FOI) functions - protecting the public’s right of access to documents under the Freedom of Information Act 1982 (FOI Act).
In the 2014–15 Budget, the Australian Government announced that the OAIC would cease operation as part of its commitment to smaller government. New arrangements for privacy and FOI regulation were to commence from 1 January 2015, following passage of legislation to implement these changes. Funding transfers to the Australian Human Rights Commission and other agencies to facilitate these changed arrangements occurred as part of the 2014–15 Budget.
The government has decided not to proceed with these proposed changes and the OAIC will have ongoing responsibility for privacy and FOI regulation. Ongoing funding for these functions is provided in the 2016–17 Budget. FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014–15 Budget. Accordingly, funding provided to the Administrative Appeals Tribunal in 2014–15 will remain with the tribunal on the basis that some matters may be considered by the tribunal, where the OAIC determines under section 54W(b) that it is in the interests of the administration of the FOI Act for this to occur.
In 2016–17 and the forward years, the OAIC will focus on its strategic goals of:
• promoting and upholding information access rights
• promoting and upholding information privacy rights
• achieving organisational excellence by supporting and developing the OAIC’s people, systems and processes.
No indication of a commitment to ensuring more coherent privacy protection through introduction of a statutory cause of action for serious invasions of privacy and no indication, amid the Turnbull Government's recent enthusiasm regarding open access, of a plan to disregard strange expressions by Public Service Commissioner John Lloyd about the supposed pernicious and inappropriate FOI Act.

03 May 2016

NSW Public Health Act Review

The NSW Government has released a Discussion Paper [PDF] regarding the  Public Health Act 2010 Statutory Review.

The Review covers
  • The Role of Local Government 
  • Safe supply of drinking water 
  • Environment health premises – regulated systems, public swimming pools and spa pools and skin penetration 
  • Premises undertaking skin penetration procedures .
  • Legionella control 
  • Public swimming pools and spa pools 
  • Scheduled medical conditions and other disease control measures and notifications, including notification of scheduled medical conditions and notifiable diseases, the requirement to notify and obtaining further information,  notification of HIV and AIDS, and disclosure of STI status 
  • Extension of existing provisions relating to vaccine preventable diseases to high schools 
  • Actions undertaken during an outbreak of a vaccine preventable disease 
  •  Public Health Registers
  •  Public Health Inquiries 
  •  Nursing homes 
  •  Regulation of the disposal of bodies 
The Public Health Act is aimed at protecting public health, primarily through the monitoring and control of diseases and conditions that can adversely affect public health. Section 3 of the Act sets out the objects -
a) To promote, protect and improve public health,   
b) To control the risks to public health,   
c) To promote the control of infectious diseases, 
d) To prevent the spread of infectious diseases, and 
e) To recognise the role of local government in protecting public health. 
Section 136 of the Act requires that it be reviewed 5 years after assent  to determine whether the policy objectives remain valid and whether the terms of the Act remain appropriate for securing those objectives. Preliminary submissions from key stakeholders were reflected in the Discussion Paper. .

The discussion paper accordingly asks
 1) Are the objectives of the Public Health Act valid and appropriate? 
2) Should s3 include a new objective relating to monitoring by NSW Health of diseases and conditions affecting the people of NSW? 
3) Do sections 3 and 4 adequately recognise the role of local government in the Public Health Act? 
4) Should a compliance regime be established in the Act in relation to s25 (which requires suppliers of drinking water to establish and adhere to a quality assurance program)? 
5) If so, should this compliance regime involve a penalty for non-compliance and/or the ability to issue improvement notices for non-compliance? 
6) Should the Act be amended to recognise a role of local government authorities in relation to the regulation of private water suppliers and water carters? ? 
7) Should the definition of skin penetration include all procedures that penetrate a mucous membrane? 
8) Should there be additional regulation to limit people who can perform high risk procedures such as eyeball tattooing to relevant registered health practitioners? 
9) Should the Act be amended to ensure that the owner of a tenanted building, or the person that the owner has arranged to manage the building, is considered the occupier for the purposes of the provisions relating to regulated systems? 
10) Should the Act be amended to clarify that the definition of public swimming pool applies to a pool in a residential premises where the pool in question is used by members of the public as part of a commercial undertaking by the occupier of the premises? 
11) Should the Act be amended to give the Secretary an express power to arrange for another person or body to undertake specified public health actions in respect of notifications of a particular scheduled medical condition or notifiable disease? 
12) Should the requirement on pathology laboratories to notify results be extended to chemical testing facilities or other facilities carrying out biological testing? 
13) Should s55 be amended to require laboratories to notify the Secretary whenever a pathology test is carried out for the purpose of indicating that a person has a Category 3 condition and indicates a positive result, regardless of who requested the test? 
14) Should the existing provisions in s54, which require a medical practitioner involved in the treatment of the person to provide the Secretary with further information in order to complete the notification report or provide information concerning the person’s medical condition and transmission and risk factors as is available to the medical practitioner be extended to all provisions of the Act where a disease or condition is notified by the Secretary? 
15) Should HIV notifications to the Secretary include the person’s name and address? 
16) Should any additional protections be included in the Public Health Act relating to information held by the Secretary, and if so what are they? 
17) Should the prohibition on including a person’s identifying details in a pathology request form for HIV with specific consent of the person be removed from the Act? 
18) Should s56(4)(b) be amended to allow for information about a person’s HIV status to be disclosed for the purpose of providing medical or health care (with such information being subject to the Health Records and Information Privacy Act) 
19) Should s79 be removed from the Act? 
20) Should the Act contain a new section setting out the principles that should apply to the management and control of infectious diseases? 
21) Should the current powers for public health orders be extended to include high risk contacts of a person with a Category 4 condition? 
22) If so, should additional protection be included in the Act to appropriately protect the rights of persons who have been in contact with a person suffering from a Category 4 condition? 
23) Should the Act be amended to allow a public health order to be made requiring a person with a Category 4 condition to be detained while infectious and/or in order to receive treatment?   
24) Should there be greater transparency requirements in the Act relating to public health orders that have been made? 
25) Should the current provisions in the Act relating to vaccine preventable diseases be extended to apply to high schools? 
26) Should the Act be amended to allow a public health officer to direct an unvaccinated child whom the officer reasonably believes has been in contact with a case of a vaccine preventable disease be excluded from child care or school, regardless of whether there is an outbreak at the school or child care the child attends? 
27) Subject to feedback on issue 25, should this amendment also apply to students of high schools? 
28) Should the Public Health Act be amended to remove the conscientious objector exemption to enrolment in a childcare facility from the Act, such that children who are not vaccinated due to their parents’ conscientious objection cannot enrol in child care? 
29) If the exemption is not removed from the Act, should other options be pursued to strengthen the requirements to obtain a conscientious objection exemption for enrolment in child care in NSW? 
30) Should the Act be amended to clarify that s97 and s98 does not limit the creation of other registers or databases relating to scheduled medical conditions or notifiable conditions under the Act? 
31) Are any other changes to s97 and s98 required? 
32) Should s106 the Act be amended to give the Secretary a power, following a public health inquiry, to direct a person or organisation take action to mitigate the risk to the public? 
33) If so, what limits, and in what circumstances should such a power be exercised, should there be such a power? 
34) Is it still appropriate for the Public Health Act 2010 to continue to regulate the work, health and safety aspects of the disposal of bodies and the regulation of cremations, internment and exhumation, preparation rooms, equipment and apparatus in mortuaries, crematories and cemeteries (where these are unconnected to public health)?

UK Suspicionless Searches

'The Rise and Fall of Suspicionless Searches' (King's College London Law School Research Paper - 2016-20) by Ben Bowling and Estelle Marks examines 
the extraordinary rise and fall of police powers to stop-and-search without suspicion in public places in England and Wales. Suspicionless searches – authorised by s.60 Criminal Justice and Public Order Act 1994 and s.44 Terrorism Act 2000 – rose to a peak of 360,000 in 2009 and then declined radically to fewer than 1,000 in 2015. The paper seeks to explain changes in the use of suspicionless search powers drawing on a theory of the relationship between law and policing by examining the police ‘working environment’ comprised of three structures: law, politics and work. The paper concludes with a consideration of attempts to reform stop-and-search powers and the implications for the future of suspicionless searches.
The authors comment
The paper falls into seven parts. First, we consider the principles that circumscribe police power – specifically the doctrine of the ‘rule of law’ and the axiom that the state should be restrained from interfering with the private life and liberty of the individual without good grounds. We consider, specifically, the proposition that there should be no power to stop-and-search unless there is reasonable suspicion that the person stopped is involved in criminal activity. The paper then draws on police research to grind a theoretical lens through which to examine the relationship between ‘law in the books’ (in the form of statutes and cases) and ‘law in action’ (in the form of stop-and-search practice).
In light of this theoretical framework we examine stop-and-search in more detail and in particular the creation of novel powers to search people without suspicion. In part III, we turn to official statistics to tease out changes in of the use of stop-and-search powers. We then consider possible explanations for the rise and subsequent fall of the powers, by examining changes in the social and political context within which police powers are exercised, the role of legislative, judicial and civil society organisations and changes within police forces. We then consider the recent Home Office review of stop-and- search powers and the current political landscape and finally, we examine the implications for the future of police powers to search without reasonable suspicion.
Our argument, in a nutshell, is that the dramatic changes in police use of suspicionless search powers can be explained by the nature of the police ‘working environment’ comprised of three structures: law, politics and work. The statutes that granted the power to search people without suspicion were the result of a political process; however, the way in which they were used and how extensively, were shaped by a much more complex relationship between law, politics and work. Case law, in a permissive or restrictive capacity, contributed to the working environment in which police use their discretionary powers. Significant changes in working practice came about through internal changes in police operational policy and occupational culture; these were, in turn, the result of interaction with the external legal and political environment. The example of suspicionless searches helps to explain how statute and case law, the political environment and the internal world, or habitus, of policing shape police operational practice.
They conclude
A twenty-year experiment with suspicionless searches in England and Wales seems to have come to conclusive end. The powers rose exponentially from the mid-1990s to 2009 and then dropped dramatically; s.44 has been repealed; s.47A has never been used, and new guidance leaves s.60 significantly curtailed. The extent of the use of suspicionless search powers in 2015 was but the faintest echo (less than 1 per cent) of the extensive and aggressive enforcement that characterised policing five years earlier. Searches under PACE have come under scrutiny and their number is falling. A reform process that began in earnest in 2009 has gradually tightened police discretion, and the Home Secretary is attempting to reduce stop-and-search in general and squeeze suspicionless searches out of police practice altogether by using all the political and administrative levers available to her. The fall in the use of these powers is claimed as a victory for those who assert the principle that police should only ever be permitted to search a person where there are genuine reasonable grounds to suspect wrongdoing. However, a significant shift in the security situation could trigger a resurgence of suspicionless searches. For this reason, it would be better if the powers were repealed by primary legislation. The theoretical and substantive evidence suggests that while the power to stop-and-search without suspicion remains on the statute book the danger persists that their use could increase without public debate or political consideration of the serious invasion of individual rights that these powers entail.