14 December 2017


The Australian Competition and Consumer Commission has released the final report from its market study into Australia’s new car retailing industry.

The report follows 18 months of research and consultation with industry and consumer groups, with  three key observations
  • car manufacturers need to update their complaint handling systems and improve their approach to the handling of consumer guarantee claims
  •  a mandatory scheme should be introduced for car manufacturers to share technical information with independent repairers 
  • new car buyers need more accurate information about their cars’ fuel consumption and emissions. 
Salient features of the report are -
Commercial arrangements between manufacturers and dealers
After review of a range of ‘dealer agreements’ (commercial arrangements between car manufacturers and dealers) the ACCC  concludes that dealers respond to consumer guarantee claims within the framework of the policies and procedures set by manufacturers.
ACCC Chair Sims comments
If manufacturers' policies and procedures don’t adequately recognise consumer guarantee rights, this can influence the behaviour of dealers in responding to complaints. ... We recommend that car manufacturers update their complaint handling systems to ensure consumer law is front and centre of relevant systems, policies and procedures. Conditions or obligations under the manufacturer’s warranty must not exclude or limit consumers’ rights.. We are concerned that some manufacturers impose unnecessarily complex warranty claim processes, leaving dealers inadequately compensated for repairs or remedies provided to consumers
Sims noted that  dealers have direct responsibility to provide remedies to consumers but they also have a right under the Australian Consumer Law to recover the reasonable costs of providing these from the car manufacturers when the manufacturer is at fault, with the ACCC foreshadowing action "if a manufacturer prevents a dealer from fulfilling their legal obligations under consumer law".
Sharing of technical information
 Independent repairers continue to have problems accessing technical information to repair and service new cars. The ACCC accordingly recommends introduction of a mandatory scheme requiring car manufacturers to share  technical information needed to repair and service new cars with independent repairers. Sims comments that "Any mandatory scheme must be available on commercially ‘fair and reasonable terms’, and have safeguards that enable environmental, safety and security-related technical information to be shared with the independent sector".
Fuel consumption and emissions
The ACCC recommends that the Federal Government introduce more realistic laboratory tests for fuel consumption and emissions, and an on-road ‘real driving emissions’ test to give new car buyers more accurate information. Research from the Australian Automobile Association (AAA) found that real-world fuel consumption is on average 23%  higher than official laboratory test results.
Sims commented
Our research shows fuel consumption is the third most significant purchasing factor for consumers after price and model. We are concerned that new car buyers are not receiving accurate information about fuel consumption or emissions performance.
The ACCC considers that there may be additional benefits to consumers from an Australian real-driving emissions test. It accordingly recommends that the Government’s Ministerial Forum on Vehicle Emissions consider the costs and benefits of an Australian real driving emissions testing program.

Privacy Publics and Suppression Order Jurimetrics

'The Public Information Fallacy' by Woodrow Hartzog comments 
The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.
In this article, I argue that the “no privacy in public” justification is misguided because nobody even knows what “public” even means. It has no set definition in law or policy. This means that appeals to the public nature of information and contexts in order to justify data and surveillance practices is often just guesswork. There are at least three different ways to conceptualize public information: descriptively, negatively, or by designation. For example, is the criteria for determining publicness whether it was hypothetically accessible to anyone? Or is public information anything that’s controlled, designated, or released by state actors? Or maybe what’s public is simply everything that’s “not private?”
If the concept of “public” is going to shape people’s social and legal obligations, its meaning should not be assumed. Law and society must recognize that labeling something as public is both consequential and value-laden. To move forward, we should focus the values we want to serve, the relationships and outcomes we want to foster, and the problems we want to avoid.
'Two Years of Suppression under the Open Courts Act 2013 (Vic)' by Jason Bosland in (2017) 39(1) Sydney Law Review 25 comments
The Open Courts Act 2013 (Vic) (‘OC Act’) was introduced in response to concerns that suppression orders were granted too frequently by the Victorian courts and that problems often existed in relation to the breadth, clarity and duration of such orders. Some of these concerns were verified in a 2013 study of all suppression orders made in Victoria between 2008 and 2012. In order to assess the impact of the OC Act, this article presents the findings of a follow-up empirical study of suppression orders made by the Victorian courts in the two years following the commencement of the OC Act on the 1 December 2013. The main results show that there has been no notable reduction in the overall number of suppression orders since that time and that the OC Act has led to no improvements in terms of the scope and clarity of orders. Furthermore, while the data demonstrates a significant reduction in orders being made without sufficient end dates, it is also found that the County and Magistrates’ courts frequently make orders that they do not have the power to make.
Bosland argues that the Act followed
ongoing concerns that the use of suppression orders by the courts in that state was placing the fundamental principle of open justice in jeopardy.The media, in particular, claimed that too many suppression orders were being made in Victoria compared to other jurisdictions in Australia and that this was undermining the usual open justice rule that the media, other than in exceptional circumstances, should be unrestrained in providing fair and accurate reports of proceedings conducted in open court. The supposedly large number of suppression orders was said to be the result of orders being made on grounds not justified according to the strict requirements of the law, a view echoed by others, including the Honourable Philip Cummins, a retired Justice of the Supreme Court of Victoria.  In the period prior to the OC Act, for example, Cummins claimed that orders were often made on ‘therapeutic, prophylactic or prudential grounds falling short of the true ground of necessity’ required by the law and that many orders were superfluous due to existing restraints on publication. Alongside these concerns, problems were also said to exist in relation to the drafting of orders, with claims that many were imprecise and overly broad in scope, and often contained insufficient limitations as to their duration. These latter concerns were confirmed by this author (with Bagnall) in an empirical study of all suppression orders made by the Victorian courts between 2008 and 2012 (‘2013 Study’). However, it should be emphasised that no attempt was made in that study to assess whether allegations of unjustified orders were well founded or not. 
The OC Act, which was shaped, in part, by reference to the results of the 2013 Study, was introduced specifically to address the problems identified above. However, with a few notable exceptions set out in Part II of this article, it does so mainly by codifying and clarifying the pre-existing law, rather than by implementing substantive changes to the law of suppression. Indeed, this is consistent with the findings of the 2013 Study that the problems with suppression orders in Victoria were not the result of deficiencies in the substantive law; rather, they rested with the application of the law and with judicial practice. The main benefit of the OC Act, therefore, is in the reinforcement of the existing legal principles by placing them on a firm and accessible statutory footing. But, while the primary goal of introducing the OC Act was to modify judicial behaviour as a means of enhancing openness and accountability, there have been recent claims of little change in the overall number of suppression orders issued by the Victorian courts. On 9 November 2016, the Attorney-General of Victoria announced the appointment of the Honourable Frank Vincent, former Justice of the Victorian Court of Appeal, to conduct a review into the operation of the OC Act. 
This article contributes to the assessment of the impact of the OC Act by presenting the findings of a follow-up empirical study of suppression orders made by the Victorian courts under the OC Act in the two years following its commencement on 1 December 2013. Using the results of the 2013 Study as a baseline, this new research assesses the effectiveness of the OC Act in relation not only to the number of suppression orders being made by the various courts, but also — and perhaps more importantly — to whether it has resulted in improvements in the drafting of orders in terms of their scope, clarity and duration. 
Part II of this article provides an overview of the key reforms introduced by the OC Act. Part III sets out the results of the present study and compares them with the results of the 2013 Study. The main findings are that there has been no significant overall reduction in the rate of suppression (that is, the number of suppression orders issued) following the introduction of the OC Act and that there have been no improvements in terms of the breadth and clarity of orders. Furthermore, while there has been a significant reduction in the proportion of orders made without specified end dates, it is also found that the County and Magistrates’ courts often made orders that they did not have the power to make and that all courts frequently failed to comply with the basic drafting requirements expressly mandated in the OC Act. In light of these results, Part IV provides some comments on the rate of suppression in Victoria, examines why many of the issues identified with suppression orders in the 2013 Study continue unabated under the OC Act, and considers what might be done to ensure greater compliance with the OC Act in the future. h

Digital Rights Advocacy and Cyber-Engagement

'The Israeli Digital Rights Movement's campaign for privacy' by Efrat Daskal in (2017) 6(3) Internet Policy Review [PDF]
explores the persuasion techniques used by the Israeli Digital Rights Movement in its campaign against Israel’s biometric database. The research was based on analysing the movement's official publications and announcements and the journalistic discourse that surrounded their campaign within the political, judicial, and public arenas in 2009-2017. The results demonstrate how the organisation navigated three persuasion frames to achieve its goals: the unnecessity of a biometric database in democracy; the database’s ineffectiveness; and governmental incompetence in securing it. I conclude by discussing how analysing civil society privacy campaigns can shed light over different regimes of privacy governance.
Daskal comments
The digital era has expanded the boundaries and meanings of basic human rights such as freedom of expression, the right to privacy, and the right to information. These changes have triggered constant deliberations between national governments, global internet corporations, inter- and nongovernmental entities over the scope of these rights (Benedek, 2008; Kay, 2014). This paper focuses on one of these actors: civil society organisations which advocate for digital rights, also known as digital rights advocates. These organisations advocate for computer and internet-related civil liberties on parallel tracks: on the one hand, they confront governments and internet corporations in the constitutional, political, and judicial arenas, and on the other, educate the public about their rights. Thus, they are among the few social actors with the potential to challenge and sometimes even change the rules decided upon by powerful social actors (Breindl, 2011; Postigo, 2008).
In order for them to achieve their goals, digital rights advocates have to persuade other stakeholders, including the public. Yet such persuasion is not easy and usually requires them to reframe issues to their advantage. This is why, for example, the American Electronic Frontier Foundation (EFF) frames copyright issues as issues of fair use in order to legitimize expanding consumer privileges in copyrighted works (Postigo, 2008). This is also why, when dealing with net neutrality digital rights advocates worldwide have recently framed their campaigns as essential to saving the internet (Fernández Pérez, 2015; Kosoff, 2017; Panwar, 2015). Yet, only few studies explored in depth the persuasion techniques used by digital rights advocates, especially concerning the right for privacy (Bennett, 2008). This study wishes to contribute to the literature in the field by asking: “what are the persuasion techniques employed by Israel’s Digital Rights Movement organisation (DRM) in its campaign for privacy and against the biometric database in Israel?”
To do so, I have analysed the organisation’s textual products and involvement in legislation initiatives, judicial rulings, and public discourse in 2009-2017. This research sheds light on the role civil society organisations can play in constructing the boundaries of digital rights. Second, it contributes to the literature dealing with the right to privacy in a specific sociocultural context. Finally, it deepens our understanding of the global issue of privacy governance. In what follows, I will elaborate on the role civil society organisations play in protecting digital rights, especially the right to privacy. I will then address the Israeli case, and present the research questions and methods. My findings will describe the main activities of the DRM against the biometric database, as well as the persuasion techniques employed thereby. I will conclude by discussing how the study of civil society privacy campaigns can assist in conceptualising and understanding issues of privacy governance.
The Executive Summary of the national Government's Australia's International Cyber-Engagement Strategy document states
Australia’s international cyber engagement champions an open, free and secure cyberspace. Through comprehensive and coordinated engagement on cyber affairs, we will maximise opportunities for economic growth and prosperity through digital trade. Australia will cooperate internationally to reduce the risk of cybercrime and promote peace and stability in cyberspace. We will advocate for multi-stakeholder Internet governance and respect for human rights and democratic principles online. We will partner to foster good cyber security practices and encourage the use of digital technologies to achieve sustainable development, particularly in our region. The digital technology revolution is fundamentally a story of prosperity. Increasingly, cyberspace acts as an economic enabler. Connectivity helps improve productivity and provides customers and the private sector with greater access to the global marketplace. Shaping an enabling environment for digital trade will deliver increased prosperity for Australia and enhance realisation of economic opportunity globally. 
This progress is only possible if underpinned by sound cyber security. The spread of digital technologies creates profound economic opportunities but, at the same time, creates new vulnerabilities. Individuals, the private sector and governments around the world face an evolving array of cyber threats. Governments and the private sector working together to develop a strong cyber security posture is an essential prerequisite to ensuring we can all safely capitalise on the benefits of increasing connectivity. As part of this effort, Australia will encourage innovative cyber security solutions and deliver world leading cyber security advice. Improving cyber security is an important way of mitigating the risk of cybercrime. Left unchecked, criminal use of the Internet threatens to undermine the economic opportunity offered by the digital domain. Like cyberspace, cybercrime is not confined by geographic borders. 
As such, Australian individuals, the private sector and government can be exposed to threats emanating from other countries. Working collaboratively with international partners and helping countries in our region improve their capacity to address cybercrime will improve prevention and prosecution of cybercrime worldwide. 
It is not only criminals who threaten the online environment. Developments in cyberspace have created a new arena in which states can exert influence. The increasingly complex nature of the international landscape means that more and more actors now pursue strategic goals in the digital domain; some challenging the international rules-based order in the process. Australia is committed to a peaceful and stable cyberspace. We will cooperate with international partners to deter and respond to malicious cyber activity that endangers international peace, security and stability. Reaffirming the application of international law to cyberspace, adhering to norms of responsible behaviour in cyberspace and implementing confidence-building measures will shape cyberspace as a landscape for international cooperation and mutual benefit. 
The private sector, civil society, academia, individuals and government are all important stakeholders in cyberspace. A multi-stakeholder approach to Internet governance, which places all stakeholders on an equal footing in Internet governance debates, best facilitates an open, free and secure Internet. Better multi-stakeholder cooperation domestically, regionally and internationally will preserve decentralised control of the Internet, allowing all voices to be heard when decisions over the policy and technical management of the Internet are made. The promotion and protection of human rights and democratic principles online is crucial; human rights apply online as they do offline. The Internet itself has provided an unparalleled opportunity for online democratic participation and the promotion, protection and fulfilment of human rights. This contributes to lasting peace, security, freedom and dignity for all. Governments, the private sector, civil society and academia must continue to work together to uphold and defend human rights online, just as they do offline. 
Beyond the realisation of human rights, connectivity and the uptake of digital technologies also act as a profound enabler of sustainable development and inclusive economic growth. Innovative uses of technology, entrepreneurial activities and the digital upskilling of workforces have seen economies transform and societies make great leaps in development. However, dividends of the digital age are currently not evenly experienced. Increasing connectivity and harnessing digital technologies safely will accelerate the attainment of sustainable development objectives, especially in regions, countries and populations where digital journeys are only just beginning. Australia’s International Cyber Engagement Strategy addresses the full breadth of these issues, from trade to cybercrime, from international security to international cooperation, and from human rights to sustainable development. Australia has adopted a comprehensive and coordinated approach to cyber affairs. We will achieve our objectives in cyberspace through cooperation, creative partnerships and practical action.
The Action Plan for that engagement includes -
Digital Trade 
Shape an enabling environment for digital trade including through trade agreements, harmonisation of standards, and implementation of trade facilitation measures 
1.01 Advocate for further digital trade liberalisation and facilitation through free trade agreements and through Australia’s participation in the WTO, OECD, APEC and G20 
1.02 Support capacity building projects in the Indo-Pacific to encourage the harmonisation of international standards for digital goods, building trust and confidence in digital trade 
1.03 Oppose barriers to digital trade and advocate for implementation of the WTO Trade Facilitation Agreement through bilateral representations and involvement with WTO committees and councils, APEC and the G20 
1.04 Design and trial an electronic Secure Trade Lane with New Zealand to provide benefits for trusted traders in both countries 
1.05 Promote regulatory cooperation and coherence through Australia’s bilateral exchanges, the Australian free trade agreement agenda, Aid for Trade activities, and engagement in the G20 and APEC 
1.06 Support public-private engagement on emerging digital trade issues in multilateral forums, including the Business 20, G20, and the APEC Business Advisory Council 
1.07 Support the G20, OECD and other international research to improve digital trade measurement and develop policy responses 
1.08 Encourage transparency from bilateral partners on domestic legislation that could restrict trade, including through cyber policy dialogues 
Promote trade and investment opportunities for Australian digital goods and services 
1.09 Develop a guide to exporting in the digital economy, providing practical advice for maximising international opportunities for Australian businesses 
1.10 Develop a national digital economy strategy, which will position Australia to embrace the opportunities presented by digital trade 
Cyber Security 
Maintain strong cyber security relationships with international partners 
2.01 Strengthen and expand Australia’s international cyber security information sharing partners and trusted networks 
2.02 Strengthen and expand Australia’s network of CERT relationships, especially in the Indo-Pacific 
2.03 Be a prominent contributor to the APCERT community 
Encourage innovative cyber security solutions and deliver world leading cyber security advice 
2.04 Promote cyber security as a fundamental input in the design and delivery of ICT products, systems and services 
2.05 Support the development of international standards that improve cyber security and encourage harmonisation of standards for digital products 
2.06 Publish translations of ASD’s Essential Eight strategies and companion implementation documents in the official languages of ASEAN members
Develop regional cyber security capability 
2.07 Work with regional partners in the Pacific to establish the Pacific Cyber Security Operational Network (PaCSON) 
Promote Australia’s cyber security industry 
2.08 Showcase Australia’s cyber security capabilities to international customers and investors, including through delivery of an annual Australian Cyber Week 
2.09 Promote and encourage cyber security start-ups through Landing Pads 
2.10 Partner with the private sector to host a workshop to co-design how Australia promotes its cyber security industry internationally 
3.01 Deliver cybercrime awareness training across the Indo-Pacific through public-private partnerships and the refreshed Cyber Safety Pasifika program 
Assist Indo-Pacific countries to strengthen their cybercrime legislation 
3.02 Promote the Budapest Convention as a best practice model for legislative responses to cybercrime and support accession to the Convention across the Indo-Pacific 
3.03 Be active in the negotiation of an Additional Protocol to the Budapest Convention on trans-border access to information 
3.04 Work with the Pacific Islands Law Officers’ Network to help strengthen cybercrime legislation in the region 
Deliver cybercrime law enforcement and prosecution capacity building in the Indo-Pacific 
3.05 Provide cybercrime training to law enforcement officers, prosecutors and judges across the Indo-Pacific 
Enhance diplomatic dialogue and international information sharing on cybercrime 
Seek further opportunities to participate in strategic-level engagement on combatting transnational cybercrime 
3.07 Share cybercrime threat information and enhance operational collaboration with international partners to fight transnational crime 
International Security and cyberspace
Set clear expectations for state behaviour in cyberspace 
4.01 Periodically publish Australia’s position on the application of relevant international law to state conduct in cyberspace 
4.02 Facilitate advanced policy development and promote informed public discussion on acceptable state behaviour in cyberspace through engagement with academics and experts in this field 
4.03 Seek high-level reaffirmations from states that they will act in accordance with international law and identified norms of responsible state behaviour in cyberspace 
4.04 Partner with countries in the Indo-Pacific to advance our combined understanding of how international law and norms of responsible state behaviour apply in cyberspace through bilateral engagement and regional and multilateral forums 
Implement practical confidence building measures to prevent conflict 
4.05 Develop a framework to exchange policy and diplomatic contacts, including bilaterally, to facilitate communication in times of crisis or tension arising from significant cyber incidents that have the potential to threaten international peace, security and stability 
4.06 Work with regional organisations to conduct risk reduction workshops to enhance our capacity to manage and respond to cyber incidents that threaten international peace, security and stability, including exercising national and regional responses to severe cyber incidents 
4.07 Hold cyber policy dialogues to discuss and work with partners to achieve priority goals on international cyber issues, including international law, norms of responsible state behaviour and confidence building measures 
4.08 Foster recognition through diplomatic outreach and defence engagement that military offensive cyber capabilities are subject to the same limitations and obligations as any other military capability 
Deter and respond to unacceptable behaviour in cyberspace 
4.09 Review Australia’s range of options to deter and respond to unacceptable behaviours in cyberspace, particularly those involving state actors and their proxies 
4.10 Undertake diplomatic action to support an international cooperative architecture that promotes stability and responds to and deters unacceptable behaviour in cyberspace 
Internet Governance and Cooperation
Advocate for a multi-stakeholder approach to Internet governance that is inclusive, consensus-based, transparent and accountable 
5.01 Advocate for an open, free and secure Internet, underpinned by a multi-stakeholder approach to Internet governance and cooperation 
5.02 Support an annual community-led Australian Internet governance and cooperation forum 
5.03 Outline Australia’s strong commitment to fostering fair and effective competition online, emphasising a preference for general competition law 
Oppose efforts to bring the management of the Internet under government control 
5.04 Oppose efforts to bring the management of the Internet under government control 
Raise awareness across the Indo-Pacific of Internet governance issues and encourage engagement of regional partners in Internet governance and cooperation discussions 
5.05 Build the capacity of Indo-Pacific partners to engage in regional and international discussion on Internet governance and cooperation
Human rights and democracy online 
Advocate for the protection of human rights and democratic principles online 
6.01 Advocate to uphold and protect human rights and democratic freedoms online 
6.02 Share concerns about, and aim to prevent, undue restrictions of human rights online as well as cyber-enabled interference in democratic processes 
6.03 Fund capacity building in the Indo-Pacific to raise awareness of states’ human rights obligations online 
Support international efforts to promote and protect human rights online 
6.04 Support non-government organisations that defend human rights online 
Ensure respect for and protection of human rights and democratic principles online are considered in all Australian aid projects with digital technology components 
6.05 Provide guidance to ensure that human rights online are protected in Australian aid and non-government projects with digital technology components 
Technology for development
Improve connectivity and access to the Internet across the Indo-Pacific, in collaboration with international organisations, regional governments and the private sector 
7.01 Partner with international organisations, regional governments, development banks and the private sector to improve Internet accessibility in the Indo-Pacific 
7.02 Work with partner countries in the Indo-Pacific to develop domestic regulatory, legal and institutional frameworks that support competitive telecommunications sectors 
7.03 Promote digital inclusion across the Indo-Pacific through educational programs, leadership initiatives and strategic partnerships 
Encourage the use of resilient development-enabling technologies for e-governance and the digital delivery of services 
7.04 Work with partner governments, the private sector and financial institutions across the Indo-Pacific to promote e-governance, online service delivery and innovative uses of technology for enhanced economic opportunity and sustainable development 
7.05 Provide guidance to ensure that digital technologies used in, or provided to, Australian aid and non-government projects are safe and resilient 
Support entrepreneurship, digital skills and integration into the global marketplace 7.06 Work with public and private sector partners to encourage businesses and entrepreneurs to find solutions to regional development challenges using innovative technologies 
7.07 Partner with regional governments, multilateral forums and educational institutions to build digital-ready workforces and support digital upskilling across the Indo-Pacific 
7.08 Support new technologies and tools for developing countries to facilitate digital trade, including improvements in policy and customs practices and better access to trade finance 
7.09 Focus Australian Aid for Trade efforts on connecting small businesses and women entrepreneurs in developing countries to digital economy opportunities and global supply chains 
Comprehensive and coordinated cyber affairs
Enhance understanding of Australia’s comprehensive cyber affairs agenda 
8.01 Promote Australia’s vision of comprehensive cyber affairs through ongoing diplomatic engagement 
8.02 Create a Cyber Affairs Curriculum for Australia’s international representatives through DFAT’s Diplomatic Academy 
Increase funding for Australia’s international cyber engagement activities 
8.03 Fund new international cyber engagement projects in the Indo-Pacific through the Cyber Cooperation Program 
Coordinate and prioritise Australia’s international cyber engagement activities 
8.04 Establish a quarterly whole-of-Government meeting, convened by the Ambassador for Cyber Affairs, to coordinate and prioritise Australia’s international cyber activities 
8.05 Establish an Industry Advisory Group that meets biannually to facilitate public-private collaboration on Australia’s international cyber engagement


'Judging the Judiciary by the Numbers: Empirical Research on Judges' by  Jeffrey J. Rachlinski and Andrew J. Wistrich in (2017) 13 Annual Review of Law and Social Science asks
Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.
The authors comment
Judges are the axle on which the wheels of justice turn. They manage pretrial proceedings, mediate settlement conferences, rule on motions, conduct bench trials, supervise jury trials, take guilty pleas, impose criminal sentences, and resolve appeals. In the process, they find facts, make or apply law, and exercise discretion. Judges wield enormous power and society therefore rightly expects much of them. Judges must be fair minded, impartial, patient, wise, efficient, and intelligent (Wistrich, 2010). They must set aside their politics and their prejudices, make rational decisions, and follow the law. (See, e.g., American Bar Association, Model Code of Judicial Conduct, 2011, Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.5, 2.8). But is it possible for judges to perform as we expect?
The answer to this question remains somewhat uncertain. Twenty years ago, Lawrence Baum (1997, p. 149) concluded, “Despite all the progress that scholars have made, progress that is accelerating today, we are a long way from achieving truly satisfying explanations of judicial behavior.” Much more research has been conducted since then, but judicial behavior still remains something of a mystery. Some scholars argue that judges behave rationally but make decisions that further their self-interest ( Epstein et al. 2013). That assertion, however, raises as many questions as it answers: What do judges see as their self-interest? Are fairness and impartiality their primary goals? What incentives do judges really face? After all, they rarely lose their positions and seldom get promoted. And even if judges primarily strive for fairness and impartiality, do they achieve these goals?
Research on human judgment and choice indicates that most people face cognitive limitations that lead them to make choices that do not consistently further their own ends (Ariely 2009). People commonly rely on intuition and simple shortcuts (or  heuristics) to make choices (Kahneman 2011). Heuristics can be effective and surprisingly accurate (Gigerenzer and Todd 1999), but can also lead to predictable mistakes when over-applied or misused. These problems plague professionals as well. Research on doctors, dentists, accountants, futures traders, and others shows that they all fail to live up to an idealized standard of judgment in many settings ( Ariely 2009). It would be surprising if judges are any different.
The available research on judges suggests that they sometimes f all short of the lofty ideal to which society holds them. A growing body of research supports the conclusion that although judges are often excellent decision makers, they have vulnerabilities. At the outset, we know that in some areas of law, judicial decisions are too chaotic. A study of immigration asylum decisions, for example, reveals that some judges grant asylum in a high percentage of cases while others almost never grant asylum (Ramji-Nogales et al. 2007). Asylum outcomes thus turn on the random assignment of a case to one judge or another. Decisions concerning whether to grant leave to appeal or to allow release on bond in immigration cases are similarly erratic ( Rehaag 2012; Ryo, 2016). Concerns about variation in conviction rates have also long haunted criminal law (Weisselberg and Dunworth, 1993). Even in criminal sentencing decisions in federal court, in which a highly structured set of guidelines cons trains judges, variation remains robust ( Scott 2011). Judges do not seem to decide as reliably as might be hoped or expected. Worse still, the variation does not just arise from chaos or a lack of meaningful standards, it arises from systematic vulnerabilities in how judges think.
This article surveys the empirical research that assesses whether judges live up to the standards of their profession. The evidence accumulated to date reveals that judges fall short in predictable ways. First, as the legal realists feared, judges’ personal characteristics influence their decision making. Specifically, the research indicates that when cases raise issues that are salient to judges’ personal characteristics, they do not consistently put their characteristics aside. Second, judges overreact to mechanisms of accountability, such as appellate review, retention, and promotion. Third, judges rely too heavily on intuitive ways of thinking that can be misleading. Fourth, in making decisions, judges sometimes rely on factors outside the record, including inadmissible evidence, their emotional reactions, and prejudices.
To be fair to judges, they labor under a great deal of academic scrutiny. The existing research on judicial decision making probably focuses too heavily on judicial failings. Scholars conduct their research with an eye towards showing that judges are politically motivated or biased. This is understandable, given the ideal of neutral judging that society expects from judges, but the emphasis on deviations likely makes judges seem worse than they are. The research includes several studies in which judges adhere to an ideal norm of neutrality, and we certainly include these in our review. No studies really provide usable estimates of how many cases are skewed by politics, prejudice, or other misjudgment, and the research does not support a means of making a reasonable estimate. The circumstances under which judges deviate from the norm are nevertheless worth exploring, not to make judges look bad, but to identify potential ways they might improve.
In reaching our conclusions, we review a diverse array of both experimental and field studies of judicial decision making. We set aside judges’ autobiographies and biographies, interviews of judges, careful parsing of individual opinions, and judges’ own accounts of how they make decisions. Such undertakings can provide valuable insights, but our focus lies on systematic empirical accounts of judicial decision making. These include archival studies of actual decisions and experiments or simulations using hypothetical cases. Although most research on judges emphasizes decisions of the US Supreme Court (especially since the Second World War), our focus lies with the state courts, lower federal courts, and a handful of international studies. Although the US Supreme Court is important, of course, it resolves few cases and represents only a tiny window into the judicial decision-making process. Each of the studies we incorporate into our analysis involves vastly more judges than the 39 people who have served on the Supreme Court in the last 70 years. The focus on the Supreme Court also tends to emphasize the role of politics in judging. Political influence is only one way judges can fail to meet the demands of their roles. We discuss this concern but expand upon it.
In New Zealand The Wheels of Justice: Understanding the Pace of Civil High Court Case by Bridgette Toy-Cronin, Bridget Irvine, Kayla Stewart and Mark Henaghan comments 
Delays in the court process are a key obstacle in accessing justice. Delay creates costs; not only in the loss of time but also financial and psychological costs. These costs are borne by the litigants, the economy, and the public purse. This is the first major New Zealand study to investigate the pace of High Court civil cases and to examine if, and where, delays might occur. 
In this report, we look at both the overall length of cases, and we focus on various points in the life of a case where delay might occur. We have used mixed methods to study these issues: a quantitative analysis of data provided by the Ministry of Justice, an analysis of physical court files, and interviews with lawyers, judges, court staff, and litigants. 
Determining the overall length of a case is a more complex task than it appears on its face, particularly as there are limitations to the data recorded by the Ministry of Justice. Where possible, we have used our analysis of the physical court files to overcome these limitations and evaluate case length. On average, a case filed in the High Court will conclude within 191.5 days. General proceedings, one of the types of civil proceedings heard by the High Court, frequently exceeded the average case length, taking an average of 381 days to conclude. As general proceedings were the longest class of cases and account for 29 per cent of the High Court’s total caseload, the report focuses on this case type. Study participants agreed that most general proceedings should not exceed two years; only 18 per cent of general proceedings exceeded this limit. 
Analysing case length alone, however, cannot answer all questions about delay. Delay can occur in extremely short cases; conversely, for some very long cases the passage of time could not be conceived as delay. In fact, we précised several long cases that had no evidence of delay. These included cases that were ‘parked’ for various reasons: waiting for a related case to be resolved, an appeal to be heard, remedial work to be undertaken, or a settlement negotiated. Some cases just needed more time to be ready for trial, especially cases involving multiple parties, or with complex evidentiary issues. While lengthy, these cases were not necessarily delayed. 
Other cases – long and short – exhibited evidence of delay. Interviews with the participants helped to tease out the nature of this delay. The lack of judicial time to promptly hear fixtures (interlocutory and substantive) and deliver judgments was of particular concern. The unavailability of litigation participants, especially experts, also slows the pace of a case. Errors by registry were also evident; while rare, these errors can delay case progression. Finally, litigation involves a range of participants: litigants, lawyers, witnesses, court staff, and judges. The behaviours of any of these participants in the process can affect pace. For example, litigants, whether represented or unrepresented, can create delay for strategic reasons; lawyers preparing court documents late or to a poor standard can create delay. We canvas the interplay between these litigation participants and consider how these relationships can affect pace. 
When considering solutions to the causes of delay the fundamental purposes of the court must be kept to the fore: to secure just outcomes between parties, publicly state the law, reinforce norms, and limit executive power. The court is a complex organisation. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity. Proposed reforms should be carefully considered and approached cautiously. 
Before firm recommendations can be made, further analysis of this data is required. A number of possibilities, however, have emerged at this preliminary stage. Many of these reforms centre on the case management process, including: earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, and setting firm timetables. Another key area for further research is initiatives to lower or better plan the cost of legal representation, which has a close but complex relationship with the pace of litigation. Other possible reforms focus on the court’s broader operations, including: protecting judgment writing time, and maximising the advantages that can be harnessed from modern technology. There is an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed. Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function.


'Geographical Indications and Environmental Protection' by Michael Blakeney in (2017) 12(2) Frontiers of Law In China 162 comments
The protection of Geographical Indications (hereinafter "GIs") is required by all members of the World Trade Organization (hereinafter "WTO"), as this is mandated by the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (hereinafter "TRIPS"). Among the primary justifications for the protection of GIs is to enable producers to secure the premium prices which are attracted by products which have a unique quality that is attributable to their place of production. As this article points out, one reason for this premium price, in the case of agricultural products is that traditionally produced goods are often free from contaminants, such as herbicides and pesticides. Not previously discussed in the literature is the fact that from an environmental protect perspective, GIs applied to agricultural products provides some consumer confidence in their purity, as well as in their traceability. In securing higher returns for agricultural producers, GIs play an important role in securing rural development and the maintenance of rural landscapes. Finally, the article points out that the international GIs regime provides an important means of protecting the traditional knowledge of agricutlural producers.

13 December 2017

CCTV in EU teaching spaces

In Antovic and Mirkovic v Montenegro [2017] ECHR 1068 the European Court of Human Rights has held that CCTV in a public lecture theatre at the University of Montenegro breached Article 8 of the European Convention on Human Rights. CCTV networks are a feature of teaching spaces in many Australian universities.

Article 8 of the Convention protects the right to respect for private and family life. The Dean of the School of Mathematics installed video surveillance in a public lecture theatre at the university to "protect safety of property, people and students". It also recorded lectures. The data was protected by codes known only to the Dean and kept for one year. A decision articulated by the Dean specified that the introduction of CCTV was intended to ensure the safety of property and people, including students, and the surveillance of teaching.

In March 2011 academics Ms Nevenka Antović and Mr Jovan Mirkovic complained to the state Personal Data Protection Agency about the video surveillance and the collection of data on them without consent. They relied on Montenegro's Personal Data Protection Act. In particular, they argued that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased.

Antović and Mirkovic  challenged the assessment. The Montenegrin Personal Data Protection Agency ordered the removal of the cameras. There was no evidence safety was an issue and therefore no legitimate grounds for data collection. The Agency ordered the School of Mathematics to remove the cameras from the auditoriums within fifteen days, as the video surveillance was not in accordance with the Personal Data Protection Act. In particular, the reasons for the introduction of video surveillance provided for by s 36 of that Act had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. In January 2012 the cameras were removed.

Ms Antovic and Mr Mirkovic brought compensation claims against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them.
They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court.
Domestic courts held that Article 8 had not been violated. The Court of First Instance for example found that the notion of private life certainly included activities in the business and professional spheres. However, the university was a public institution performing activities of public interest (inc teaching), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. The lecture space was a working area, akin to  a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data.

The Court further held that monitoring of actions taking place in public (in accord with the Court’s case-law) >was not an interference with a person’s private life when those means just recorded what others could see if they happened to be in the same place at the same time. The monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. The Court  concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy and had therefore not caused them any mental anguish.

On appeal the European Court (by four votes to three) ruled that although the University is a public sphere, private life encompasses business and professional activities. Article 8 had been breached.

The compensation awarded was, from an Australian perspective, symbolic.

Antović and Mirkovic were awarded one thousand euros each in respect of non-pecuniary damage. They were awarded 1,669.50 euros jointly in respect of costs and expenses.

Plumbers and the French Disease

From Cynthia L. Haven's Evolution of Desire: A Life of René Girard (Michigan State University Press, 2018) -
The theatrics of Baltimore raise another important point, and one that’s emerged since. To put it bluntly: How much was pure sham, pure preening and ego jousting? At times, the mimetic rivalries and derivative desires seemed to be a showcase for the very principles Girard’s Deceit, Desire, and the Novel describes.
The American philosopher John Searle excoriated Derrida, insisting, 
You can hardly misread him, because he’s so obscure. Every time you say, “He says so and so,” he always says, “You misunderstood me.” But if you try to figure out the correct interpretation, then that’s not so easy. I once said this to Michel Foucault, who was more hostile to Derrida even than I am, and Foucault said that Derrida practiced the method of obscurantisme terroriste . . . And I said, “What the hell do you mean by that?” And he said, “He writes so obscurely you can’t tell what he’s saying, that’s the obscurantism part, and then when you criticize him, he can always say, ‘You didn’t understand me; you’re an idiot.’ That’s the terrorism part.”
Not everyone, of course, agrees with this reading—though many have criticized Derrida for his byzantine writing, with its italics, its phrases in phantom quotation marks, and its dizzying wordplay. Girard himself clearly felt respect, as well as dismay, for his colleague. Girard himself, although dismayed by the deconstructive frenzy Derrida wrought, clearly had respect for his colleague as well. In particular, he wrote and spoke admiringly of Derrida’s early essay, “Plato’s Pharmacy,” which anticipated his own insights in some respects.
To some extent, Searle’s criticism reflects the porous divide between analytic and continental philosophy, and the former still dominates the American intellectual landscape and our public discourse. Speaking very roughly, analytic philosophy focuses on analysis—of thought, language, logic, knowledge, mind; continental philosophy focuses on synthesis—synthesis of modernity with history, individuals with society, and speculation with application. Anglo-American philosophy has emphasized the former; mainland Europe the latter. Searle is aligned with the analytic camp; so is linguist and philosopher Noam Chomsky, one of America’s leading public intellectuals.
Chomsky called Lacan a “total charlatan” posturing for the television cameras, charging that “there’s no theory in any of this stuff, not in the sense of theory that anyone is familiar with in the sciences or any other serious field. Try to find in all of the work you mentioned some principles from which you can deduce conclusions, empirically testable propositions where it all goes beyond the level of something you can explain in five minutes to a twelve-year-old. See if you can find that when the fancy words are decoded. I can’t,” he said.
Searle’s and Chomsky’s critique is part of the American opposition that began in the 1980s, continuing the philosophical school of “American pragmatism” that looks for ideas to deliver some intellectual payoff. American pragmatists have been called “the plumbers of philosophy”—they attempt to solve problems, not provide elegant and clever descriptions of problems.
Perhaps questions should be practical, too. Sometimes a single naive question can bring down an entire edifice of thought. Let me extend a few naive questions, then, in that spirit: How is a philosophy embodied in the man who espouses it? What is a philosophy that does not change a man—not only what he says, but how he lives? How does a man’s being—the sum of his knowledge, experience, and will—“prove” his knowledge? Can we ever devise a philosophy, even a theory, wholly apart from who we are, and what we must justify? These questions were raised in earnest when Heidegger’s affiliation with the Nazis, and later Paul de Man’s complicity with them, were revealed. What does the test of time show us about the merits of an idea? However heated the arguments in the Parisian coffee shops, in the end, decades later, they would become systems of thought characterized by wordplay, mind games, and a noncombatant’s flexibility, charm, and elasticity—all delivered with an ironic wink.

Finance Sector Royal Commission

Draft Terms of Reference for the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, headed by former HCA justice Kenneth Hayne, are -
Australia has one of the strongest and most stable banking, superannuation and financial services industries in the world, performing a critical role in underpinning the Australian economy. Our banking system is systemically strong with internationally recognised, world’s best prudential regulation and oversight. 
Most Australians are consumers of banking, superannuation and other financial services. The superannuation system alone in Australia has created more than a $2 trillion retirement savings pool, which continues to grow rapidly, and which compels all working Australians to defer income today for their retirement. 
All Australians have the right to be treated honestly and fairly in their dealings with banking, superannuation and financial services providers. The highest standards of conduct are critical to the good governance and corporate culture of those providers. 
These standards should continue to be complemented by strong regulatory and supervisory frameworks that ensure that all Australian consumers and businesses have confidence and trust in the financial system. 
The Government will appoint a distinguished serving or former judicial officer to lead a Royal Commission into the banking, superannuation and financial services industries. 
The Commission’s inquiry will not defer, delay or limit, in any way, any proposed and announced policy, legislation or regulation of the Government. 
Terms of Reference 
1. The Commission must inquire into the following matters;
a) the nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf); 
b) any conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations; 
c) the use by a financial services entity of superannuation members’ retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members; 
d) whether any findings in respect of paragraphs 1(a), (b) and (c): i. are attributable to the particular culture and governance practices of a financial services entity or broader cultural or governance practices in the industry or relevant subsector; and ii. result from other practices, including risk management, recruitment and remuneration practices; 
e) the effectiveness of mechanisms for redress for consumers of financial services who suffer detriment as a result of misconduct by a financial service entity; 
f) the adequacy of: i. existing laws and policies of the Commonwealth (taking into account law reforms announced by the Government) relating to the provision of financial services; ii. the internal systems of financial services entities; and iii. forms of industry self-regulation, including industry codes of conduct; to identify, regulate and address misconduct in the industry, to meet community standards and expectations and to provide appropriate redress to consumers and businesses; 
g) the effectiveness and ability of regulators of a financial services entity to identify and address misconduct by those entities; 
h) whether any further changes to: i. the legal framework; ii. practices within financial services entities; and ii. the financial regulators, are necessary to minimise the likelihood of misconduct by financial services entities in future (taking into account any law reforms announced by the Government); and 
i). any matter reasonably incidental to a matter mentioned in the above paragraphs, 1(a) – 1(h). 
2. In conducting its inquiry the Commission should give priority to matters which in its opinion, have greater potential for harm if not addressed expeditiously. 
3. Inquiring into the matters set out in paragraph (1)(f), the Commission:
a) must have regard to the implications of any changes to laws, that the Commission proposes to recommend, for the economy generally, for access to and the cost of financial services for consumers, for competition in the financial sector, and for financial system stability; and 
b) may have regard to comparable international experience, practices and reforms. 
4. However, the Commission is not required to inquire, or to continue to inquire, into a particular matter to the extent that to do so might prejudice, compromise or duplicate: 
a) another inquiry or investigation; or 
b) a criminal or civil proceeding. 
And, the Commission may choose not to inquire into certain matters otherwise within the scope of this Inquiry, but any such decision will be the Commission’s, alone. 
5. The Commission is not required to inquire into, and may not make recommendations in relation to macro-prudential policy, regulation or oversight. 
6. The Commission may submit to the Government an interim report no later than September 2018 and must submit a final report within 12 months. The final report is to contain: a) its findings; and b) any recommendations relevant to the inquiry that the Commission thinks fit. 
financial service entity means an entity (other than a Commonwealth entity or company) that is:
a) an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959
b) an entity that carries on the business of undertaking liability, by way of insurance (including reinsurance), in respect of any loss or damage, including liability to pay damages or compensation, contingent upon the happening of a specified event, including: i. a general insurer within the meaning of the Insurance Act 1973; and ii. an entity undertaking life insurance business within the meaning of the Life Insurance Act 1995
c) a person or entity required by section 911A of the Corporations Act 2001 to hold an Australian financial services licence or who is exempt from the requirement to hold a licence by virtue of being an authorised representative; or 
d) an RSE licensee of a registrable superannuation entity (as that term is defined in the Superannuation Industry (Supervision) Act 1993) and any entity that has any connection (other than an incidental connection) to the RSE licensee of a registrable superannuation entity. 
Macro-prudential policy and regulation means policy and regulation, including as to the structure, role and purpose of financial regulators, that is concerned with containing systemic risk, which can have widespread implications for the financial system as a whole, beyond simply the banking system. 
misconduct includes conduct that 
a) constitutes an offence against a Commonwealth, State or Territory law in relation to the provision of a financial service, as existed at the time of the alleged misconduct; or 
b) is misleading and/or deceptive; or 
c) indicates a breach of trust or duty or unconscionable conduct; or 
d) breaches a professional standard or a recognised and widely adopted (conduct) benchmark.

States and Secret Treaties

'The Survival of the Secret Treaty: Publicity, Secrecy and Legality in the International Order' (University of Cambridge Faculty of Law Research Paper No. 56/2017) by Megan Donaldson comments
This article offers the first detailed history of the norm of treaty publication as it has evolved over the last century. Drawing on both public debates and archives of foreign ministries, it traces how, and why, secret treaties have persisted, even in liberal democracies. It challenges assumptions of ever-greater transparency over time, and complicates the associations made — by interwar reformers and international lawyers today — between the norm of treaty publication and ideals of legality in the international order.
Clark states
Concern about “secret diplomacy” in the wake of World War I found its clearest expression in opposition to “secret treaties.” Left-leaning and internationalist groups believed that “publicity” of treaties1 would advance the control of foreign policy by legislatures and citizens, and help construct a more peaceful international order, governed by law rather than power politics. Article 18 of the Covenant of the League of Nations gave expression to these ideals, by purporting to render the binding force of treaties entered into by any member of the League conditional on their registration by the League Secretariat. Registration in turn entailed publication to the world at large.  Article 18 was thus the first instantiation of a norm of treaty publication in international law (with “treaty” here understood in the general international law sense). Admittedly, this norm was a relatively narrow one. It guaranteed only the publication of treaties once made, and did not address the secrecy of the negotiation phase. Nevertheless, it was a major change to law and diplomatic practice. Aspects of Article 18 were carried over into Article 102 of the UN Charter, which in turn was echoed in the Vienna Convention on the Law of Treaties (VCLT). 
This article offers the first detailed history of the norm of treaty publication. It traces the emergence of the norm, and struggles over its interpretation and application, through the practice of the United States, Britain, and France. While these three states are not representative of the international community as a whole (neither in the interwar period nor today), their commitment to greater publicity, and influence over modes of diplomacy, makes them a revealing lens on the norm and its limits. The article draws on public debates in legislatures, international organizations, and legal scholarship, but also discussions within foreign ministries and the League of Nations Secretariat. Analysis from these diverse sources offers a clearer picture of the true legal architecture of publicity and secrecy in treaty practice. It suggests how, and why, margins for secrecy have persisted, even in liberal democracies, and draws out for critical scrutiny the relationship between the norm of treaty publication and legality in the international order.  
The article challenges the liberal democratic trajectory some might expect, namely ever- greater publicity over time. It shows that, while statesmen and officials made real efforts to uphold the publication norm, they also fought to preserve some avenue for making commitments that were both legally binding and secret. In international law, the radical potential of Article 18 of the Covenant—the connection it forged between registration and publication, on one hand, and binding force, on the other—was undone in the early years of the League. Article 102 of the Charter is less ambitious than its predecessor. Domestic law requirements, which arguably play as great a role in driving publication as international requirements, have also left avenues for secrecy, although these have been narrowed and systematized. 
Within liberal democracies, the article shows that general attitudes to the norm of publication were driven not only by factors like perceived geopolitical vulnerability, but also national political and legal cultures, and even the bureaucratic organization of the treaty apparatus. Specific efforts to carve out exceptions to the norm of publication, or decisions to flout it, were motivated by diverse considerations: perceived needs to preserve some concrete advantage over military or commercial rivals, to stabilize markets or currencies, and to prevent political opposition from national populations, colonies, or allies; but also to conceal markers of inferiority or subordination in interstate relations, and thus shore up a symbolic economy of interstate equality. For bodies charged with upholding the norm, like the League Secretariat, maintaining the force of Article 18 was important for credibility with internationalist constituencies, but there were countervailing incentives to interpret the provision narrowly in order to avoid confronting—and being seen to be defeated by—powerful member states. 
Many motivations for secrecy on the part of governments and institutions were self- interested and instrumental. However, officials and reformists also thought about secrecy in principled terms. On occasion, they reconsidered the normative case against secrecy that had been seen as persuasive in 1919. Some came to doubt whether secrecy was always inimical, for example, to peaceful ordering. In some instances, it seemed vital to preserve peaceful relations.
The doubts of contemporaries suggest enduring questions about whether and how the norm of treaty publication favors ends like democracy, peace, and legality. This article probes, in particular, the relationship between publicity and legality in the international order. In doing so, it gives a sense of the complex empirical terrain in which questions about democracy and peace, too, would have to be pursued. Actors concerned with publicity articulated different dimensions of the relationship between publicity and legality. Simplified for the sake of analysis, much of the discussion about publicity posited, first, a basic conceptual or normative connection to legality. This could take the form of assertions that legal relations and obligations were inherently public, or that they ought to be public. Second, there was an expectation that the norm of treaty publication would strengthen the role of law in the international order more generally (for example, by improving the dissemination and coherence of the law itself, fostering a commitment on the part of governments to following the law, or levelling out power imbalances between states and vindicating sovereign equality). This combined a general normative sensibility with a number of very condensed assumptions about the effects of publication or secrecy in particular contexts. Finally, there was confidence in law as a means of entrenching the norm of publication. This article shows that each of these stylized dimensions of the relationship between publicity and legality proved more complex—empirically and conceptually—than it had seemed in 1919.
The article intersects with doctrinal scholarship on the law of treaties and emergent research on why states craft interstate commitments in particular ways. However, doctrinal scholarship—cited very sparingly here—often concentrates on problems of classification, like the definition of a treaty6 and distinctions between legally binding “treaties” and “gentlemen’s” or “non-binding” agreements;  or on questions which flow from classification of texts, like the role of ancillary texts in interpretation.  By contrast, emergent research on why states make agreements in the form they do largely brackets these questions. This article puts the law at the heart of the inquiry. Unlike doctrinal scholarship, though, it is not aimed at reaching its own classification of the texts considered. Rather, it probes what interlocutors understood themselves to be doing in drafting or handling texts in particular ways.
Attention to these features of treaty practice, often side-lined in doctrinal accounts, gives a much richer picture of the true architecture of publicity and secrecy. It reveals the possibilities created by the interplay of the law of treaties with diplomatic crafts of drafting, and the management of texts within foreign ministry bureaucracies. It suggests a more expansive canvas for states crafting their commitments than can be captured in many studies of state behavior. Governments are not only choosing between treaties and non-binding agreements, for example, but crafting complexes of different texts, making choices about presentation and emphasis which are difficult to capture in quantitative ways. Officials are sometimes uncertain about the status of particular texts, in disagreement with each other, or consciously shaping textual forms to preserve ambiguity about legal status. Finally, close attention to the crafting of texts and the negotiation of the bounds of the category of treaty brings to the fore some paradoxical aspects of secrecy in the international legal order. Secret treaties, by their nature, will never enjoy many avenues for rhetorical or institutional enforcement typically associated with legally binding commitments. They might even thus reflect a faith in legal obligation alone to shape state behavior. Conversely, however, some secret treaties purport to commit states to actions which may violate international law, calling broader commitments to legality into question. 
The article begins with a brief overview of the pre-World War I (WWI) landscape (Part I). It then traces the emergence of Article 18, and the tacit qualification of this provision in the early years of the League’s existence (Part II), before addressing interwar confrontations with a comprehensive publication norm in national public law and practice (Part III). While interwar developments are considered in detail, as they shaped approaches taken after World War II (WWII), the treatment of national practice is necessarily selective, focusing on examples which illustrate the range of areas in which secrecy was sought, the repertoire of techniques used, and particular turning points in national approaches. The article then considers the transformation of the treaty publication norm after WWII, a period for which the archival material becomes scarcer (Part IV). It sketches the evolution of techniques of secrecy, and changing legal approaches to its management, from WWII to the present (Part V), before offering a snapshot of the secret treaty today (Part VI). Finally, it summarizes developments over the last century, and what they reveal about the empirical landscape in which to consider the relationship of publicity to democracy, peace and legality in future (Part VII).
'The Future of State Sovereignty' (King's College London Law School Research Paper No. 2017-42) by Joseph Raz comments
Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether state sovereignty had its day. The paper defines sovereignty in a way that allows for degrees of sovereignty. Its analysis assumes that while sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will breed, and to the advantages of relatively sovereign political societies. The paper identifies the advantages of the legalisation of international relations, and the growth of international bodies. The dilemma of internationalisation is that its advantages can be obtained only if international organs acquire some of the characteristics of successful sovereign political societies, in attracting the loyalty and shaping the sense of identity of their members – a faraway prospect. The best we can hope for is a mix international regime of relatively sovereign states subject to extensive regulation by international organisations and laws. That requires a pluralistic jurisprudence of international organisations, allowing for great local diversity, of which we have so far seen only small beginnings.

Language and Afterlives

'The Construction of Homosexuality in New Zealand Judicial Writing' by Edward Clark in (2006) 37 Victoria University of Wellington Law Review 199 comments
This article examines the language used by New Zealand judges to describe homosexuality. It analyses the use of such language in judgments delivered after the decriminalisation of homosexual intercourse in 1986, examining the effect that judicial language has on rights claims made by homosexuals. 
The article argues that a significant number of judges are careless or ill-­informed in the language they use to refer to homosexuality and that the language used reinforces and repeats a number of negative stereotypes about homosexuality, constructing it as inferior to a heterosexual norm. This article criticises such careless or prejudiced language as incompatible with New Zealand’s human rights commitments and argues that this language constitutes a barrier to the full enjoyment of citizenship by homosexual New Zealanders.
The report by the ACT Legislative Assembly's Standing Committee on Environment and Transport and City Services regarding its inquiry into the management of ACT cemeteries. features the following recommendations
1 The Committee recommends the Government, in view of the diversification in burial and interment preferences in the ACT, ensure that the development and construction of a second crematorium in Canberra be considered a high priority. 
2 The Committee recommends the Government continue to monitor community preferences across a range of burial, cremation and interment practices and where possible make provision for emerging or alternative practices. 
3  The Committee recommends the management and operation of ACT cemeteries continue to be performed by the ACT Cemeteries Authority. 
4 The Committee recommends the management and operation of any future cemeteries or crematorium or any other interment facility be performed by the ACT Cemeteries Authority. 
5  The Committee recommends the Government reconsiders the planned extension of the Woden Cemetery in light of changes in planning for the Woden Town Centre and the views held by the local community. 
6 The Committee recommends that the Government agree to proceed with the current plans for the Southern Memorial Park and work with the ACT Cemeteries Authority to establish the facility as a matter of urgent priority. 
7  The Committee recommends that a review of the Cemeteries and Crematoria Act 2003 be undertaken to ascertain the feasibility and financial basis for adopting a renewable tenure scheme to replace the prevailing tenure provisions applying to ACT cemeteries. 
8  The Committee recommends that any review conducted in accordance with Recommendation 7 should seek to clarify the current definition of perpetuity, and examine the introduction of a renewable tenure regime with some form of increments and renewals allowed. 
9  The Committee recommends that any review conducted in accordance with Recommendation 7 should also include “for perpetuity” as a tenure option. 
10  The Committee recommends that any changes to tenure practices arising from the review conducted in accordance with Recommendation 7 are applied only to future burial sales and are not applied retrospectively to existing plot sites. 
11  The Committee recommends that an actuarial analysis of tenure options be undertaken as part of the review recommended in recommendation 7 to assess how best a renewable tenure scheme regime be structured to enable the ACT Cemeteries Authority to meet its financial liabilities over the long-term. 
12  The Committee recommends that where a recommendation made in this Report is adopted, that all aspects of the Cemeteries and Crematoria Act 2003 relating to that matter be given specific review in light of the Cemeteries and Crematoria Act 2003 enabling the Authority to implement the relevant reform.

12 December 2017

Digital Rights

Last month's Digital Rights in Australia report by Gerard Goggin, Ariadne Vromen, Kimberlee Weatherall, Fiona Martin, Adele Webb, Lucy Sunman, and Francesco Bailo at the University of Sydney comments that
Australians are some of the world’s greatest users of social media and mobile broadband, and our nation is in the top ten globally for internet use. At a time when our use of these technologies is increasingly redefining aspects of our personal and professional lives, Digital Rights in Australia explores urgent questions about the nature of our rights now and into the future. 
 The report covers
rights issues in four areas: privacy, profiling and analytics; government data matching and surveillance; workplace change; and freedom of expression and speech regulation. It explores the ethical and legal challenges we face in using digital, networked technologies and the debates we are having about how to best manage their transformative impacts. 
Crucially this study examines the major role of private, transnational digital platforms in reshaping the way we work, study and conduct business, our interactions with government and with each other. 
This report draws on three sources of data: a national survey of the attitudes and opinions of 1600 Australians on key rights issues; focus group discussion of related rights scenarios; and analysis of legal, policy and governance issues, illustrated by case studies. 
It's core findings are -
 Privacy, Profiling, Data Analytics
  • Australians are concerned about their online privacy. While two thirds of our respondents believe they personally have nothing to hide, only a small group (18%) think that more general concerns about online privacy are exaggerated. 
  • A majority of our respondents do not feel in control of their privacy online. While a majority take active steps to protect their privacy (67%), and have changed settings on the social media they use most often (61%), a minority (38%) felt that they can control their privacy online. 
  • Women experience the online world differently from men: they are more likely to agree that they actively protect their privacy online (71%, compared with 63% of men) and change their social media settings (63%, compared with 58% of men), but feel no more in control of their privacy (39%, compared with 38% of men). 
  • There may be a significant group for whom the answer to questions relating to privacy online are: “it depends” (this contrasts with answers about governments and privacy). 
  • Corporations were the major source of concern: 57% were concerned about their privacy being violated by corporations, although a substantial number were also concerned about privacy violations by government (47%) and other people (47%). 
  • A large majority (78%) want to know what social media companies do with their personal data. 
  • In the online focus group, participants’ views were mixed on the use of data in targeted advertising and price discrimination. But there was a consensus that content targeting for political purposes is different: for example, paying a social media platform to boost a negative opinion article about a rival party to users in marginal seats was seen as crossing a line.
Government Data Matching and Surveillance
  • Nearly half of our respondents were concerned about government violating their privacy (47%). 
  • A majority are opposed to government programs for phone companies and internet service providers to keep metadata on phone calls and web use. 79% of respondents considered retention of information about phone calls to be a privacy breach. A majority (58%) were also opposed to a policy for government-mandated retention of information about internet communications. 
  • But a change in frame altered these numbers. When asked whether they favour law enforcement and security agencies being able to access metadata, the number in favour jumped up to 42% (47% opposed). Once framed as an anti-terrorism measure, government data-gathering about internet is supported by a majority of respondents (57%), while only 31% oppose a program described this way. 
  • Our findings highlight the critical importance of the framing of questions when assessing public support for data collection and sharing, and interpreting survey results. 
  • Respondents’ attitudes towards both government collection of communications data, and government data matching programs, varied significantly depending on political identification. Respondents who identified with the Coalition were significantly more likely to support programs; identification with the Greens made a respondent more likely to oppose such programs. 
  • There is considerable ambivalence among the survey participants towards online government data matching programs. We found that 42% are in favour and 45% are opposed to a program that tracks citizen use of public services and benefits. Our online focus group was also sharply divided on a range of data matching scenarios put to them.
  • Digital privacy at work matters. Most Australians do not think employers should look at their employees’ social media pages. While 37% agreed that it was acceptable for either prospective or current employers to look at public social media posts; only 20% agreed that it was ok for either current or prospective employers to look at private posts. 
  • High school educated, those not working in professional/skilled work, and respondents over 40, were most concerned about employers accessing their social media posts. 
  • Only 16% of people agreed that using social media was an important part of their job, but most workplaces (72%) they were in had a policy about using social media while at work. Most workplaces seem to recognize the everyday ubiquity of social media use and are attempting to govern it, though only 46% of respondents said their workplace had a policy on what they post online. 
  • In this terrain of unclear directions over social media at work and employers’ rights to access posts, our online discussion groups reinforced that privacy boundaries are important, but also that employees needed to use their own “common sense”. 
  • The encroachment of some new policy agendas, such as that seen in the case study of the Public Service Commission, needs to better reflect citizens’ desires for digital privacy at, and from, work. 
  • The app driven, online gig economy presents a new space for digital rights analysis. Most respondents have heard of, but not used, a platform such as Uber, Airtasker or Deliveroo; and use is skewed towards those under 40 and the university educated. 
  • Australians see gig work as providing workers with more flexibility, but at the same time a majority are also concerned about the financial insecurity of this kind of work. Over 60% believe that these new forms of work need new government regulations. Yet, as shown in the case study, institutionalising fairer regulations is fraught.
  • Australians are not strongly wedded to the North American ideal of absolute speech freedom online. Just over a third (37%) of those surveyed agreed that they should “be free to say and do what I want online”, but 30% disagreed and a third expressed reservations about the idea. People were also less supportive of others having that absolute freedom than themselves. 
  • 50% of Australians agreed that everyone should have the right to online anonymity or pseudonymity, a figure that increases to 57% for those under 40 years. Around a third of younger Australians said it was more likely that they would make honest and open comment on the news, talk about sensitive topics like sexuality or question others’ opinions if they had the opportunity to comment anonymously. 
  • Men are more likely to assert their right to free expression than women, reflecting the male dominance of everyday speech online as much as of offline. 
  • Gender is a key variable in understanding attitudes to social media regulation. Men were less likely than women to agree with the need to remove within 24 hours instances of sexual harassment, abuse targeted at an individual, or hate speech that encourages violence against others. Women were less supportive than men of the right to anonymity. 
  • While most Australians had not experienced negative impacts from risky or harmful online speech, 39% have been affected by mean or abusive remarks and 27% have had personal content posted without consent. Our case study on image-based abuse emphasises the need for law reform and educational strategies to address new privacy and speech rights breaches. 
  • More than was the case for either work or privacy issues, Australians agreed on the need for more regulation of online discussion environments. They flagged the need for increased involvement by social media platforms in content moderation and ‘easy’ complaints reporting. 
  • There was a perception gap between people’s belief that harmful social media content was easy to get taken down, and the procedural reality that it is not always straightforward and may require regulatory intervention to persuade the host company to act, as the European Commission hate speech case study suggests.