25 August 2018


The Human Right to Leave Any Country: A Right to Be Delivered' by Vladislava Stoyanova and Elspeth Guild in European Yearbook on Human Rights (2018) comments 
The right to leave a country is enshrined in both international human rights law and its European counterpart. It is a right which is independent and does not require the individual exercising it to show that he or she is admissible in some other country. It is exercisable even in the absence of evidence of possible admission to a destination country. However, in Europe (and some other parts of the world) some states are seeking to encourage their neighbours to interfere with people’s right to leave a country on the grounds that these European states fear that people want to come to their borders. This article examines the right to leave a state from the perspective of international and European human rights law and questions the legality of various efforts to make it dependent on a right of entry to another country.


The Australian Competition and Consumer Commission, in following up yeserday's Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286, comments
The Federal Court of Australia has ordered H.J. Heinz Company Australia Ltd (Heinz) to pay penalties totalling $2.25 million for making a misleading health claim that its Little Kids Shredz products were beneficial for young children. 
In March 2018, the Federal Court found that Heinz had breached the Australian Consumer Law by claiming its Shredz products were beneficial to the health of children aged 1-3 years, when this was not the case. T 
he Court also found that Heinz nutritionists ought to have known that a representation that a product containing approximately two-thirds sugar was beneficial to health of children was misleading. The ACCC had sought a penalty of $10 million for Heinz. ... 
ACCC Chair Rod Sims said. “The ACCC wants to ensure that penalties for breaches of the consumer law are large enough to get the attention of the financial markets, boards and senior management." The ACCC is carefully considering the judgment. 
The Court also ordered Heinz to establish a consumer law compliance program and to pay the ACCC’s costs.
White J states at [17] through [20]
I propose to proceed on the basis that the ACCC has established that Heinz contravened s 29(1)(g) on at least 708,012 occasions by making the Berries Healthy Food Representation, on at least 459,054 occasions by making the Peach Healthy Food Representation, and on at least 40,494 occasions by making the Fruit and Chia Healthy Food Representation and that it is likely that the contraventions occurred on an indeterminate number of further occasions. 
The effect of the conduct
The ACCC accepted that the evidence did not indicate that any individual consumer had in fact suffered loss or harm as a result of Heinz’s contraventions. It submitted, however, that the contraventions had had two consequences of which the Court should take account. The first was the effect on consumer choice, by Heinz encouraging parents and carers, when making purchasing decisions, to select the Products on the basis that they would be beneficial for their child’s health, when that was not so. The cases recognise that the distortion of consumer choice is a nonmonetary effect of which the Court should take account (Reckitt Benckiser at [114]) and I accept this submission.
The second consequence was the potential for toddlers to suffer harm, whether by the development of obesity or dental caries, as a result of their consumption of excessive amounts of sugar, to which consumption of the Products may contribute. Heinz submitted that the findings in the Liability Judgment did not support the ACCC’s submissions that its conduct had had the potential to impact on the health and wellbeing of children. It noted the distinction drawn in the Liability Judgment between a finding that a product is not beneficial to a child’s health, on the one hand, and a finding that the product is detrimental to a child’s health, on the other.
In my opinion, this submission of Heinz involves an unduly narrow reading of the reasons in the Liability Judgment. I refer in this respect to the conclusions in [236] and [244] of the Liability Judgment. I based the conclusions in those paragraphs on the evidence summarised earlier in the Liability Judgment about the potential for adverse health effects associated with the consumption of free sugars.
White J goes on at [43] through [55] to state
Heinz is a subsidiary of the United States Kraft Heinz Company, which describes itself as “A Global Food Powerhouse”. The Kraft Heinz Company achieved global net sales in 2016 of US$26.5 billion operating in more than 40 countries. There is no difficulty in concluding that Heinz is a major company with substantial resources. That being so, the submission made on behalf of Heinz that the penalty of $10 million sought by the ACCC would be oppressive to it cannot be accepted. 
Heinz does not have any record of prior contraventions. This is to its credit, especially given the large number of products it markets. 
The principal concern of the Court in fixing of an appropriate pecuniary penalty is the element of deterrence, both general and specific: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55] (“the purpose of a civil penalty ... is primarily if not wholly protective in promoting the public interest in compliance”). The ACCC submitted that this means that the penalty must be set high enough to outweigh any potential gain to the contravenor by engaging in the conduct and sufficiently high that a business will not be prepared to treat the risk of such a penalty as a business cost. A penalty which is not sufficiently substantial may undermine the public interest in consumers being able to make decisions free from conduct that is liable to mislead and thus distort decisionmaking processes: Reckitt Benckiser at [164]. 
The ACCC submitted that specific deterrence is a particularly important consideration in the present case. It submitted, first, that the conduct of Heinz involved a high degree of contemplation and choice. It referred in this respect to the evidence indicating that Heinz had updated its packaging in 2013 with the intention of promoting the Products as both nutritious and healthy. This evidence was the subject of my findings in the Liability Judgment at [95][98]. 
The ACCC also referred to Heinz’s noncompliance with its own Toddler Snacking Guidelines and New Product Guidelines and the criteria contained in its document entitled “Heinz Little Kids Promise – Technical Criteria”. These were the subject of my findings at [295][311]. Having referred to those documents, I concluded that each of Heinz’s employed nutritionists ought to have known that a representation that a product which was approximately twothird sugar was beneficial to the health of children aged 13 years was misleading and that each ought to have known that consumption of a product with that level of sugar may have the effects which underpin the guidelines issued by the World Health Organisation. 
The ACCC also submitted that the need for specific deterrence was indicated by the fact that Heinz had continued its conduct even after it (the ACCC) had commenced its investigation. Heinz became aware of that investigation on 28 August 2015 by reason of the ACCC having served it with a notice pursuant to s 155 of the CC Act requiring the production of documents. The ACCC emphasised that, not only had Heinz continued sales of the Berries and Peach Products, it had also commenced sales of the Fruit and Chia Product in January 2016 using packaging with a similar content. This conduct evidenced, the ACCC submitted, a disregard by Heinz of “the fact that, at least insofar as the ACCC was concerned, its conduct was potentially in contravention of the law”. The ACCC submitted that, in this circumstance, the Court may readily infer that “in continuing to offer for sale in an unaltered form the Shredz Berries and Shredz Peach Products and [in] introducing the Shredz Fruit and Chia Product in a materially similar form”, Heinz had not been deterred by the risk of litigation. 
In addition, the ACCC referred to a report prepared by the Organisation for Economic Cooperation and Development (OECD) in 2018 entitled “Pecuniary Penalties for Competition Law Infringements in Australia” containing, at 68, the following statement:
"[I]f one observes continued lack of compliance by corporations falling within these two scenarios – in which the companies are not only aware of competition law, but also that they may be subject to special attention on the part of the authorities –, it is at least likely that those corporations regard the possible imposition of sanctions as a cost of doing business."
I would not regard the fact that a corporation has continued contravening conduct after coming under investigation by a regulator as necessarily indicating that it regarded the possible imposition of sanctions as a cost of doing business. There may no doubt be cases in which a corporation which becomes subject to regulatory investigation should recognise quickly the contravening nature of its conduct so that its continuation of the conduct may indicate recklessness or indifference to the requirements of the law. However, there may also be cases in which a corporation intending in a conscientious manner to be law abiding may reasonably take the view that a regulator’s concerns are unfounded or misplaced. Its continuation of the conduct in that circumstance would not support the inference which the ACCC submits. 
Three matters militate against the conclusion based on the OECD report for which the ACCC contends in the present case. First, the representations which the ACCC identified to Heinz in its s 155 Notices of 28 August 2015 and 4 April 2016 were not those which the ACCC pursued in the proceedings. It seems that the first notice Heinz had of the ACCC allegation concerning the Healthy Food Representation was when it was served with the proceedings (commenced on 16 June 2016). 
Secondly, the ACCC did not succeed with its allegation concerning two other representations Heinz was said to have made on the packaging of the Products. Neither of those representations had been alleged in the s 155 Notices. They serve to illustrate, however, that it may not be unreasonable for a corporation to take a different view about allegations by the ACCC than does the ACCC itself. 
Thirdly, Heinz voluntarily ceased sales of the Products with effect from 18 May 2016. That was one month before the ACCC commenced the present proceedings and two weeks after Heinz had provided its response to the second s 155 notice issued by the ACCC. Ms Fox, Heinz’s General Counsel, deposed that Heinz had withdrawn the Products from sale because of its appreciation that the ACCC had continuing concerns. The ACCC did not contest that evidence. 
Having regard to all these matters, I do not accept the ACCC’s submission that Heinz had regarded the possible imposition of sanctions with respect to its marketing of the Shredz Products as a cost of doing business. Nor do I accept the ACCC’s submission that the evidence shows that Heinz has a corporate culture marked by a lack of concern for compliance. Instead, the evidence suggests that the contraventions occurred by reason of Heinz’s failure to appreciate that the Healthy Foods Representations were conveyed by its packaging and that that representations were, in respect of each Product, false or misleading. 
I accept, however, that specific deterrence is pertinent because the imposition of an appropriate penalty should encourage Heinz to consider the effect of its packaging, considered in its entirety and the representations it conveys. I also accept the ACCC submission concerning the disregard by Heinz of its own Guidelines.
'Eco-Labeling' by Jason J. Czarnezki, Margot J. Pollans and Sarah Main comments 
Eco-labels, certifications, and seals of approval serve a variety of functions, including communicating to businesses and consumers the environmental attributes of a particular product or the dangers that product may pose. Eco-labels have the potential to improve environmental outcomes in a number of ways. This Chapter discusses the existing and emerging types of environmental labeling. Part II explores the range of types of eco-labels, laying out common label content and governance schemes (both public and private). Part III explores the challenges that successful labeling schemes must overcome, concluding that the best labels are whole process labels and that eco-labeling is best viewed as one component of a broader regulatory scheme. Part IV briefly concludes that continued work is needed to improve the effectiveness and legitimacy of eco-labeling schemes.

24 August 2018

Health Outcomes

The AIHW Aboriginal and Torres Strait Islander Stolen Generations and descendants Numbers, demographic characteristics and selected outcomes report offers an the analyses of the estimated numbers and demographic characteristics of proxy measures of the Stolen Generations and the descendants of all Aboriginal and Torres Strait Islander people removed from their families.

The report covers key findings from examining the relationship between being removed, and being a descendant, regarding 38 outcomes that cover health status, health risk factors, cultural factors and socioeconomic indicators for the most recent data, as well as changes over time. The Stolen Generations proxy population was compared with Aboriginal and Torres Strait Islander people in the same age cohort who were not removed. The descendants of all people removed were compared with Indigenous people who had not experienced any type of removal, with comparisons with non-Indigenous Australians were also carried out for a smaller set of outcomes.

Key findings were
Using data from five Australian Bureau of Statistics (ABS) surveys of the Aboriginal and Torres Strait Islander population (undertaken from 2002 to 2014–15), it is possible to identify individuals who were born before 1972 and who reported being removed from their families. This subgroup is used as a proxy measure for the Stolen Generations. The ABS surveys can also be used to identify the descendants of all people removed from their families, which include descendants of the Stolen Generations. 
Based on data from the 2014–15 survey:
  • 20,900 individuals born before 1972 were estimated to be the surviving members among those who had been removed from their families 
  • a slightly higher proportion of them were women (56%) than men (44%), and the majority (79%) lived in non-remote areas 
  • 29% of those who were removed in this age cohort reported living alone, 66% were aged 50 and over, and 20% were aged 65 and over.
The time series data suggest that, on average, 11% of people in the cohort born before 1972 report being removed from their families. 
  • When this proportion is applied to population data for 2018 (among those aged 46 and over), the resulting estimate is that in 2018, around 17,150 people in the cohort born before 1972 are the surviving members among those who had been removed from their families (the Stolen Generations proxy population).
The Stolen Generations proxy population experienced a range of adverse health, cultural and socioeconomic outcomes at a rate higher than the Indigenous population that had not been removed.
  • Key findings among these differences are a higher likelihood of: being incarcerated in the last five years (3.3 times), being formally charged by police in their lifetime (2.2 times), having government payments as their main income source (1.8 times), not being a home owner (1.7 times) and being more likely to have poor general health based on a composite measure (1.6 times). 
This report also estimated the size of the population of descendants of all people removed in the past. The descendants are defined as people aged 18 and over at the time of the ABS survey who reported having elder relatives (great/grandparents, parents, or uncles and aunts) removed.
  • In 2014–15, the estimated number of descendants aged 18 and over was around 114,800; this includes around 15,400 individuals who reported that they themselves were also removed from their families. 
  • The proportion of the population identified as descendants remained stable across the five ABS surveys—around 33% of the population aged 18 and over.
 The descendants were also consistently more likely to have experienced adverse outcomes over a broad range of health, socioeconomic and cultural indicators, compared with a reference group of Indigenous people aged 18 and over who reported neither being removed themselves from their own families, nor having any relatives removed.
  • Key findings among these differences are a higher likelihood of: feeling discriminated against in the last 12 months (2 times), experiencing actual or threatened physical violence (1.9 times), having poor general health based on a composite measure (1.6 times), and having been arrested in the last five years (1.5 times).
 Large differences are also seen between the Stolen Generations proxy population born before 1972 and a comparable non-Indigenous reference group, as well as between the descendants aged 18 and over and their comparable non-Indigenous reference group.

23 August 2018

Law Council Justice Project Report

The Law Council has released the final report of its Justice Project, characterised as a
national, comprehensive review into the state of access to justice in Australia for people experiencing significant disadvantage. It is one of the most extensive reviews of its type in 40 years.... 
Focussing on 13 priority groups identified as facing significant social and economic disadvantage, the final report shines a light on justice issues for these groups by undercovering systemic flaws and identifying service gaps. It also highlights what is working well. 
The constructive, informed recommendations in the final report provide a roadmap for future action, building the case for new, whole-of-government justice strategies secured by appropriate funding. ... 
The Justice Project is one of the most significant pieces of work the Law Council has ever undertaken: a landmark project examining the state of access to justice in Australia, particularly for disadvantaged people. The Law Council of Australia has contributed significant resources over many years to improving the quality of access to justice for all. It has developed sophisticated policies and materials underpinned by sound economic analysis and findings of parliamentary inquiries and commissions, numerous approaches to parliamentarians. Despite nods of agreement from all, there was no impetus for change. 
This Project was inspired by the realisation of a simple truth - that despite our lofty commitment to equality before the law, for many tens of thousands of Australians, equality, and justice, remain out of reach. 
We accept this situation as inevitable when it is not. We do so perhaps because we consider the cost of access to justice for all is too high. Or perhaps because we do not understand the devastating impact of injustice upon lives, because the voices of those denied justice are not heard. 
It was my intention that we give a voice to those who are most vulnerable to the impacts of this inequality.
The report features the following recommendations
People – Building Legal Capability and Awareness Chapter 
1.1 The future design of justice and related administrative systems should be nuanced, evidence-based and people-centred. It should be informed by, and responsive to, the likely legal capability - the knowledge, skills and readiness to act - of target users, given that it is often pivotal to their ability to negotiate such systems effectively. 
1.2 In implementing: • Recommendation 2.1, regarding the need for substantial additional investment in legal assistance services; and • Recommendation 2.7, regarding dedicated funding to pursue technological innovation in the delivery of legal services to clients through evidence-based approaches, specific funding should be available to ensure that tailored, effective, and accessible Community Legal Education and Information (‘CLEI’) strategies meet the needs of diverse Justice Project priority groups, having regard to lack of legal awareness and capability as a formidable, frequent barrier and CLEI as a key preventative tool in achieving access to justice. 
1.3 Recognising the value of community awareness campaigns in reducing or addressing legal need, Commonwealth, state and territory governments should initiate or extend such campaigns to: • overcome a lack of awareness of specific legal issues amongst key priority groups, including amongst people with intersectional disadvantage; and • overcome broader community discrimination, misperceptions and/or stigma which contribute to poor justice outcomes, including with respect to: • elder abuse; • family violence; and • race, gender, disability, LGBTI+ and age-based discrimination. Campaigns to increase community awareness of poorly understood, widespread legal issues should be accompanied by increased resourcing to legal services to accommodate additional demand. 
1.4 The Law Council recognises and accepts responsibility for engaging with the Australian Curriculum, Assessment and Reporting Authority regarding the inclusion of targeted measures to support the Australian Curriculum: Civics and Citizenship to build practical knowledge of everyday legal issues and how to address them effectively. 
Legal Services Chapter 
2.1 Commonwealth, state and territory governments should invest significant additional resources in Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, and Family Violence Prevention Legal Services to address critical civil and criminal legal assistance service gaps. This should include, at a minimum, $390 million per annum. 
2.2 Commonwealth, state and territory government funding for legal assistance service services should be determined by way of a transparent and evidence-based funding model that provides adequate, predictable, sustainable and long-term funding. • This model should be based upon evidence regarding legal need, provided through periodic legal need surveys as specified at Recommendation 7.8. • The Council of Attorneys-General should commission independent actuarial work which assesses the funding which is required to meet the shortfall in unmet legal need. • Consideration should also be given to agreeing national targets of the Australian population which should be covered by legal assistance services, having regard to their different roles, services and objectives. 
2.3 The Law Council recognises and accepts responsibility for cooperating with pro bono organisations to ensure ongoing improvement in the recognition, encouragement, referral and adoption of best practice with respect to pro bono legal services. 
2.4 The Law Council recognises and accepts responsibility undertaking future complementary research and the development of a position paper which focuses on the needs of ‘the missing middle’ and the most effective strategies available to the private legal profession, amongst others in the profession, to assist this group to access legal assistance. 
2.5 To enable legal assistance services to build and maintain trust with individuals and communities who need legal help, governments should: • prioritise adequate, predictable, sustainable and long-term funding models for these services under Recommendation 2.2; and • provide ongoing funding pathways to enable innovative pilots and community- led initiatives which have demonstrated success to flourish longer-term, with specific funding allocated for their evaluation. 
2.6 Commonwealth, state and territory governments should resource legal assistance services to employ non-legal liaison officers, such as Aboriginal and Torres Strait Islander, cultural, disability or youth liaison officers, to reach and build trust with specific client groups who have high levels of legal need but are unlikely to seek help, and to resolve clients’ non-legal needs effectively. 
2.7 Technological innovation should be pursued in the delivery of legal services to clients experiencing disadvantage, including through dedicated funding streams and having regard to identified examples of what works in this area. At the same time, it should be recognised that digitally excluded groups may be left behind by technological innovation without due care being taken. 
2.8 The Law Council recognises and accepts responsibility for: • building on existing efforts to promote greater diversity within the legal profession, by seeking to increase its proportion of people who are culturally and linguistically diverse, LGBTI+, Aboriginal and Torres Strait Islander, people with disability and older people; • adopting positive measures to increase and welcome diversity amongst the legal profession’s client base; • conducting a stocktake of the professional development training and other tailored resources available to assist the legal profession to build cultural competence, service accessibility and a more informed understanding of the diverse needs of people experiencing disadvantage, and act to address gaps; and • working with the Council of Deans, promote measures to build a stronger undergraduate understanding of the social, economic and cultural context of the law and its operation with respect to people experiencing disadvantage. 
2.9 As well as increasing support for Aboriginal and Torres Strait Islander community- controlled organisations to deliver legal services under Recommendation 7.2, governments should increase their funding and support for legal assistance services to deliver culturally safe, informed and accessible services to their core client populations, including through training and workplace diversity strategies. 
2.10 Specialist legal assistance services should be supported to expand their reach, particularly to overcome geographic and jurisdictional inequity of access, including through outreach and referral networks. 
2.11 Governments, peak legal assistance and legal professional bodies should cooperate to develop: • strategies to overcome conflict of interest issues which preclude many disadvantaged people from accessing justice, including through additional investment to address a scarcity of legal services, minimum servicing standards and innovative approaches such as dedicated conflict of interest locums; and • rural, regional and remote (‘RRR’) access to justice strategies to ensure an appropriate and tailored mix of services, publicly funded and private, in areas of critical need. These strategies should be planned and tailored to meet regional circumstances, and may include: rural placement, mentoring and incentive schemes, resourcing additional legal services, increasing legal aid rates, and strengthening practitioner referral networks (including to facilitate pro bono assistance). 
2.12 Commonwealth, state and territory governments should fund and recognise the value of systemic law reform and policy advocacy work by legal assistance providers. 
2.13 Commonwealth, state and territory governments should amend the National Partnership on Legal Assistance Services to remove the restriction on the use of Commonwealth funding by community legal centres to undertake law reform and policy advocacy work. 
2.14 Commonwealth, state and territory governments should fund and support multi- disciplinary collaborations and service delivery approaches which address legal and non-legal needs, including health-justice partnerships and culturally safe, holistic service models delivered by community-controlled organisations. These should be underpinned by funding, policy and reporting frameworks which are stable, streamlined, and break down siloed portfolio approaches. 
2.15 Legal assistance peak bodies and Health Justice Australia should, supported by the Law Council, pursue sector-to-sector partnerships which facilitate the expansion and delivery of multi-disciplinary collaborations to address legal and non-legal needs, and identify how key challenges can be overcome. 
2.16 Governments should better support the legal professionals who deliver justice to marginalised groups, recognising their invaluable role in serving the community and preventing downstream costs to communities and individuals, by implementing relevant recommendations in this chapter. The role of the Law Council in implementing its respective recommendations in this chapter is also essential. 
Dispute Resolution Chapter 
3.1 As part of Recommendation 7.8 (increasing the evidence base) governments should resource research bodies to undertake further independent research into the suitability of various alternative dispute resolution (‘ADR’) models for different groups of people experiencing disadvantage, noting that there is a lack of detailed research in this area. This research should investigate the benefits and risks of ADR models, and the necessary safeguards, accommodations and support which are needed to address any risks and to increase accessibility for different client groups. 
3.2 Governments should consider funding the expansion of appropriate models of legally assisted ADR for more vulnerable client groups at risk of power imbalances, such as elder abuse and family violence victims. Relevant models include Legal Aid Commission Family Dispute Resolution programs, which employ safeguards including screening out inappropriate cases, ‘shuttle’ or remote conferencing and specially trained mediators. 
3.3 Governments should support research into effective strategies to promote awareness of Ombudsmen and other complaint handling mechanisms amongst different groups of people experiencing disadvantage, having regard to the common pathways to this form of assistance that such groups commonly take. 
Courts and Tribunals Chapter 
4.1 It is of critical importance that the Commonwealth Government, working with state and territory governments, commission a full review of the resourcing needs of the judicial system, noting that there has not been any such review in recent decades. Alongside this review, governments should facilitate an open public discussion about the economic, social and civic importance of meeting the resourcing needs of courts and tribunals. 
4.2 As a minimum standard, every tribunal should have the power to allow a party to be represented in proceedings, where it is deemed necessary to ensure a fair outcome in the proceedings, such as: • if there is a power imbalance between the parties, for example the other party is evidently a repeat player or a professional advocate; • a party clearly lacks legal capability; • a party is particularly vulnerable – such as a potential victim of family violence or elder abuse; and • the consequences of decision-making are highly significant to individual lives. Guidelines should be developed to assist tribunals to exercise this power consistently with the minimum standard. 
4.3 Guidelines regarding the applicability and use of fee exemptions and waivers should be made clearer and, as much as possible, more publicly known to court participants. Exemption categories and court discretion to grant exemptions should also be reviewed and broadened in certain jurisdictions. Transcript fee waivers should be generally available to clients of legal assistance services and pro bono services. 
4.4 State and territory governments should support the expansion and evaluation of communication intermediary schemes across Australian jurisdictions, involving appropriately qualified, trained and remunerated communication intermediaries who provide impartial and independent advice to the judicial system regarding the person’s communication needs. 
4.5 Commonwealth, state and territory evidence laws should be reviewed and, where appropriate, amended to allow and prompt a more flexible approach to adducing evidence from witnesses with complex communication needs. South Australian legislation could provide a model with respect to vulnerable witnesses, such as those with cognitive impairment or intellectual disability. 
4.6 Australian courts and tribunals should review their current interpreter practices and procedures against the recommended standards set out in the Judicial Council of Cultural Diversity’s Recommended National Standards for Working with Interpreters in Courts and Tribunals. Governments should provide courts and tribunals with adequate resources to ensure all courts and tribunals can implement these standards. 
4.7 The National Judicial College of Australia should consider establishing a dedicated disability committee with experts on disability, including people with lived experience of disability. A primary purpose of the committee would be to develop and promote disability training for the judges, magistrates and tribunal members, with the overarching aim of championing cultural change and promoting judicial leadership with regards to disability. It would work closely with disability advocacy groups and people with lived experience of disability. 
4.8 Following a mapping exercise regarding jurisdictional and/or regional need, state and territory governments should establish additional, and continue to support existing, specialist Aboriginal and Torres Strait Islander sentencing courts. Aboriginal and Torres Strait Islander people and organisations should be involved in the design, establishment and evaluation of specialist Aboriginal and Torres Strait Islander sentencing courts. 
4.9 Where required, courts and tribunals should be sufficiently resourced to employ, on an ongoing basis, cultural liaison officers or coordinators. 
4.10 Governments should provide additional,ongoing funding and resources to maintain and, where required, expand rural and remote circuit courts, having regard to their important function in upholding the rule of law and fostering community engagement through a tangible local presence. 
4.11 Where courts are not already doing so, they should be resourced to develop and implement community engagement initiatives with marginalised members of the community who tend to distrust the justice system. Data collection, monitoring and evaluation of such initiatives should be prioritised and developed in consultation with key stakeholders. 
4.12 Further research should be undertaken to build the evidence base for the effectiveness of online courts, tribunals and dispute resolution forums in Australia in assisting people experiencing disadvantage. In particular, governments should prioritise research and policy development regarding: • the forums in which online courts and tribunals are most appropriate; • the availability of sufficient technology to support their effective uptake, particularly in rural, regional and remote areas; • the relative benefits and disadvantages of online courts and tribunals, and to which parties these apply; • their likely impact upon disadvantaged online court and tribunal users, having regard to their technological and legal capability; and • the necessary safeguards which are needed to support disadvantaged users. 
4.13 Having regard to the benefits of facilitatingamoreholisticandcomprehensive resolution of a legal matter and promoting positive behavioural change in participants, and identified best practice examples, both mainstream courts and specialist courts should support the development and implementation of therapeutic jurisprudence and problem-solving approaches to judging for appropriate matters. 
4.14 Giventhatproblem-solvingcourtsandtherapeuticjurisprudence-basedjudgingare only effective if underpinned by alternative, non-custodial sentencing options and diversionary programs, state and territory governments should: • ensure there is legislative support for such sentencing options; and • in line with Recommendation 5.5, invest in accessible, disability-responsive and culturally appropriate support services and diversionary programs to underpin non-custodial supervisory sentences, especially in rural, regional and remote areas to ensure that there is greater parity with urban areas. 
4.15 The National Judicial College of Australia or the Australasian Institute of Judicial Administration should continue to support the development of training for the judiciary regarding the practical application of therapeutic jurisprudence in diverse areas of judging, including in both mainstream courts and specialist courts. 
Critical Support Services Chapter 
5.1 Governments should prioritise support for prevention and early intervention approaches to avoid downstream legal problems. While the exact approaches required will vary depending upon the population and region targeted, and not all services are required for all groups, these relevantly include: • holistic family support services; • mental health services; • drug and alcohol rehabilitation services; • healing, resilience and strength-based programs amongst Aboriginal and Torres Strait Islander peoples; • youth engagement and diversionary programs for young people at risk; • settlement orientation programs for recent arrivals; • behavioural change programs to overcome family violence; and • administrative assistance to obtain key identity documents and drivers licences for people in remote areas and recent arrivals. 
5.2 As part of the preventative and early intervention approaches outlined under Recommendation 5.1, Commonwealth, state and territory governments should expand their support for piloting justice reinvestment initiatives. They should also establish a national, independent justice reinvestment body to provide expertise on these initiatives. 
5.3 Governments should implement a National Justice Interpreter Scheme which ensures that: • professional, appropriate and skilled interpreters are readily available and free to people from culturally and linguistically diverse backgrounds who cannot afford them, including Aboriginal and Torres Strait Islander peoples, recent arrivals, asylum seekers, and people who are trafficked and exploited, at all levels of the justice system, including legal assistance services; • interpreter services and courts are funded to enable the full implementation of the Judicial Council on Cultural Diversity’s Recommended National Standards for Working with Interpreters in Courts and Tribunals; and • the Productivity Commission’s Recommendation 22.3 regarding the development of a National Aboriginal and Torres Strait Islander Interpreter Service is implemented. 
5.4 The role of disability support workers and advocates should be expanded to assist people with disability who require it in their engagement with the justice system, particularly people with cognitive impairment or mental health conditions, to ensure fair procedure, supported decision-making, early intervention and successful exit strategies from institutions. 
5.5 State and territory governments should invest in accessible, disability-responsive and culturally appropriate support services that underpin non-custodial supervisory sentences in rural, regional and remote areas to ensure that there is greater parity with urban areas. 
5.6 State and territory governments should consider the introduction of Work and Development Order schemes, along the lines of the existing New South Wales model, in consultation with affected groups and their representative bodies. 
5.7 In order to increase the likelihood that prisoners and detainees can successfully reintegrate into the community and reduce rates of recidivism, Commonwealth, state and territory governments should prioritise: • prison/detention based therapeutic programs; • more widely available throughcare programs in custodial facilities and in the community; and • ensuring that people exiting prisons and detention facilities have access to secure and appropriate housing. Such programs should have a particular focus on meeting women’s needs, be culturally competent, and accessible to people with disability. They should also be more accessible to people on remand or on short sentences. 
5.8 Having regard to the multiple ways in which lack of housing contributes to and exacerbates poor justice outcomes, legal, policy and service frameworks should be improved to prioritise homelessness prevention, through investment in safe, secure and appropriate housing, including crisis housing, for groups who are at risk of homelessness. Investment in bail accommodation and bail support programs for remandees, and post-release accommodation for prisoners should also be prioritised. Funded housing services should be culturally competent and inclusive. 
5.9 State and territory governments should ensure that people with disability who have been found unfit to stand trial have access to alternative accommodation options that offer appropriate and joined-up services.  
Broader Justice System Players Chapter 
6.1 The Law Council, as advised by its constituent bodies, recognises and accepts responsibility for engaging with police representative bodies and/or relevant Ministers regarding the following proposals that police forces should: • review, and where necessary develop, protocols/guidelines, training and/or programs in the following areas: - promoting diversion from the criminal justice system where appropriate, including training on best practice approaches to exercising discretionary police powers; - ensuring appropriate identification of primary perpetrators of family violence in incident responses, and avoiding issuing dual orders inappropriately against both parties; - prioritising the protection of, and provision of support to, Aboriginal and Torres Strait Islander women and children subject to violence; - improving understanding of forms of family violence that are under- reported or under-serviced, such as within LGBTI+ or culturally and linguistically diverse communities; - increasing cultural competence of diverse groups’ needs and experiences of the justice system, more informed awareness and identification of people with disability and referrals to appropriate support, and trauma-informed responses; - addressing concerns regarding over-policing and under-policing with respect to particular groups, including Aboriginal and Torres Strait Islander people, people with disability, family violence victims and recent arrivals; • expand diversity strategies, including employing additional police from diverse backgrounds and additional police liaison roles; • expand partnerships with community organisations representing people experiencing disadvantage, including with Aboriginal and Torres Strait Islander leadership; • review accountability and complaints mechanisms in line with the Australian Law Reform Commission’s recent recommendations in its Pathways to Justice report; and • introduce custody notification services in all jurisdictions. 
6.2 The Law Council, as advised by its constituent bodies, recognises and accepts responsibility for engaging with detention bodies (prisons, youth detention and immigration detention centres) and/or relevant Ministers regarding the following proposals that these bodies should: • review, and where necessary establish protocols which facilitate access to legal advice by prisoners and detainees; • review, and where necessary adopt or expand training, guidelines and protocols to: - increase staff cultural competence and awareness; - build more informed awareness and identification of people with disability and referrals to appropriate support; - increase staff awareness of the prevalence and impacts of family violence amongst prisoners and detainees and ensure appropriate support; - refer prisoners and detainees to culturally secure, gender and disability informed rehabilitative programs; - better respond to the needs of LGBTI+ prisoners/detainees, including strategies for determining the placement of transgender and intersex people; - adopt trauma informed approaches more broadly. This may include, where appropriate, limiting internal prison processes such as strip- searching that can aggravate trauma; and • implement the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’) under compliance frameworks with clear accountability and transparency mechanisms. These frameworks should be developed by each state and territory, in consultation with the Commonwealth Government. 
6.3 Government agencies (for example, social security, immigration, housing, child protection) which frequently deal with people experiencing disadvantage, and whose frontline decisions can increase demands for civil legal assistance, should: • be responsive to the legal capabilities of target system users; • consult with key communities affected by administrative policies and practices to enable the design of responsive and accessible service delivery; • adopt plain English, accessible formats and the use of translators/interpreters in dealings and correspondence with the public; • design internal departmental processes to handle complaints or mistakes to provide clear explanations to clients in accordance with a fair process; • resource independent, accessible complaint systems, equipped with effective investigative and reporting powers; and • enable effective recourse to judicial review for administrative decision-making, as well as full merits review for administrative decisions that will, or are likely to, affect the interests of a person. 
6.4 A national review of Aboriginal and Torres Strait Islander children in child protection, and associated state and territory laws and practices should be conducted, in line with the Australian Law Reform Commission’s recent recommendations. As indicated at Recommendation 7.7, this should be complemented by a national target to eliminate the over-representation of Aboriginal and Torres Strait islander children in out-of-home care as part of the Closing the Gap Framework. Addressing barriers to the full implementation of the Aboriginal and Torres Strait Islander Child Placement Principle should be a priority. 
Governments and Policymakers Chapter 
7.1 A Council of Australian Governments Access to Justice Framework should be developed to engender a stronger cross-jurisdictional, whole-of-government commitment towards ensuring access to justice. This would commit to: • whole-of-government recognition of access to justice, including access to timely and effective legal assistance, as a fundamental ingredient in preventing and overcoming disadvantage, tackling complex social problems; avoiding downstream government expenditure, and underpinning Australian democracy and the rule of law; • driving a broader, less ‘siloed’ approach to justice issues through an agenda which addresses both legal and underlying needs through seamless approaches for different groups experiencing disadvantage; • seeking to understand different groups’ pathways into, through and out of the justice system, and targeting integrated responses to critical intervention points, including prevention and early intervention, crisis point and ‘exit’ strategies; • providing a conceptual basis for more targeted national strategies which are designed to address acute, interrelated social and justice issues amongst particular groups, such as those set out at Recommendation 7.7; • building systemic supports for flexible, tailored, and place-based solutions which build on local community strengths; • building the public’s understanding of everyday legal problems and how to address them; and • building a nationally consistent data collection system and stronger evidence base across the justice system. 
7.2 State and territory governments should provide substantial additional funding to Aboriginal and Torres Strait Islander community-controlled legal services, over and above Commonwealth funding levels, in line with the Productivity Commission’s 2014 recommendation. At the same time, the Commonwealth should increase its own contribution to these services, given the growing, critical unmet legal needs amongst Aboriginal and Torres Strait Islander peoples and the unique role of such services in meeting their needs. 
7.3 Justice Impact Tests should be introduced at the Commonwealth, state and territory level to facilitate the smoother development of laws and policies which have downstream impacts on the justice system. These tests should: • consider the United Kingdom Justice Impact model as a potential guide, including its principle of agency accountability for downstream justice system costs; • be mandatory for all government agencies and apply to justice impacts within both the civil and criminal justice systems; • be overseen by central treasury or finance agencies, as well as justice departments; • be conducted early in the policy development process; • mandate early engagement with key justice sector representatives, including the legal assistance sector, courts and tribunals, corrections, youth justice and legal professional peak bodies to identify and assess likely impacts; • incorporate mechanisms to account periodically for incremental and cumulative system impacts; and • be subject to consistent evaluation to improve impact assessment mechanisms over time. 
7.4 Commonwealth, state and territory governments should adopt law and policy development processes which ensure that the social impact of laws and policies upon diverse populations are better understood, measured and evaluated. These should: • have regard to the potential of laws and policies to entrench disadvantage, including through unforeseen consequences; • be evidence-based in their design, implementation and evaluation, particularly identifying their impacts upon different disadvantaged groups; • where appropriate, consider the adoption of non-legislative policy alternatives to resolve complex social problems, with an emphasis on addressing the underlying issues which drive individuals’ engagement with the justice system, particularly the criminal justice system; • be based on respect for, and meaningful engagement with, the communities they will affect, having regard to their lived experience; • include a stronger policy focus upon the needs and experiences of groups who are often ‘invisible’ in policymaking; • adopt a measured approach to law and policy development to facilitate better consultation and knowledge about their likely impacts; and • recognise and support the important role played by legal assistance services (Recommendations 2.12 and 2.13) and representative bodies in advocating for law and policy reform on behalf of people experiencing disadvantage. 
7.5 Commonwealth, state and territory governments should adopt Aboriginal Justice Impact Assessments to ensure that the consequences for Aboriginal and Torres Strait Islander people of law and policy decisions are adequately accounted for and considered, and to prompt more meaningful community engagement. 
7.6 Commonwealth, state and territory governments should (respectively, as appropriate) consider review and reform in the following priority areas of law, policy and practice, given their disproportionate impact on disadvantaged groups: • fines, penalty and infringement notices; • ‘law and order’ approaches, including the repeal of mandatory sentencing laws and reform of bail and parole laws and conditions which disproportionately affect such groups; • youth justice laws, policies and practices; • child protection systems, including their intersection with family violence protection systems; • public housing, tenancy and eviction; • unfitness to stand trial; • asylum seeker and immigration detention; and • certain social security laws and programs, particularly the Community Development Program and Cashless Debit Card Program. 
7.7 Commonwealth, state and territory governments should adopt comprehensive, whole-of-government strategies or initiatives to drive improvements in specific areas of concern, including: • the adoption of Closing the Gap targets and supporting frameworks to reduce rates of Aboriginal and Torres Strait Islander incarceration, family violence, and child removal; • state and territory Disability Justice Plans where these are currently lacking, incorporating a focus on the needs of groups experiencing intersectional disadvantage, including Aboriginal and Torres Strait Islander peoples; • establishing a Commonwealth LGBTI+ Human Rights Commissioner; and • incorporating state and territory government responsibilities into the next National Action Plan on Trafficking and Exploitation. 
7.8 Governments should lead a coordinated and sustained effort to improve data collection about the justice system and to fill knowledge gaps, particularly with respect to disadvantaged groups’ interaction with the system, to ensure that decision-making and law and policy development is evidence-based. Relevant gaps include: • a periodic Legal Australia Wide Survey as a general population survey, which is now well overdue; • more targeted periodic surveys which explore the legal needs, pathways followed and outcomes of different groups experiencing disadvantage within the justice system; • a serious commitment to learn ‘what works’, cost-effectively, for whom and in what circumstances to address community legal needs; • a coordinated, long-term effort between Commonwealth, state and territory governments, courts and tribunals, the profession and the legal assistance sector, to improve justice sector data consistency and reliability to ensure that it is useful and readily available for planning and monitoring; and • the establishment of an independent national justice reinvestment body, as recommended in Recommendation 5.2.

21 August 2018

Sovereign Patent Funds

'Sovereign Patent Funds' by Xuan-Thao Nguyen in (2018) 51(4) UC Davis Law Review considers SPFs.

Nguyen asks
What are SPFs? How are they created and structured? What purposes do SPFs serve? Are SPFs effective initiatives for foreign governments to encourage innovation and foster competition or are they merely state-sponsored patent trolls? Are they violating international trade law, specifically the World Trade Organization (“WTO”) Agreement on Subsidies and Countervailing Measures?
This Article is the first to address the above questions. The Article proceeds as follows. Part I traces the creation of SPFs in Japan, South Korea, Taiwan, China, and France. Part I also explains when, why, and how each country provides public funding to SPFs. There are many different types of SPFs in different technology and life sciences areas, and with specific goals and mandates, although several share the same goal of aggregating patents. Open innovation and patent licensing are two common themes among the different goals and approaches employed by SPFs. Part II investigates whether SPFs have engaged in patent assertions — attempts to use acquired patents “to generate revenue by asserting them against alleged infringers.” Part II focuses on the simultaneous litigations filed by the French SPF against LG Electronics Corporation and HTC Germany GmbH in Germany and the United States. Likewise, the Asian SPFs have filed lawsuits against multinational companies. The investigation reveals surprises, including that litigation is typically an SPF’s last resort. SPFs are reluctant to embrace litigation. Part II also examines SPFs’ licensing strategies. French and Korean SPFs seem to have success in licensing out. They direct more efforts to selecting quality patents for licensing. In addition, Korean and Japanese SPFs are engaging in licensing for open innovation.
SPFs have been condemned as global patent trolls and state sponsored patent trolls. Part III addresses whether the pejorative label is warranted. Exploring the popular narrative of patent trolls and the evolving landscape of the patent market where former manufacturing companies and research institutions, along with other non-practicing enterprises (“NPEs”), are participants, Part III reveals that the SPF label does not fit SPFs’ characteristics. SPFs are both diverse and complex. Some have collaborated with universities to engage in specific research and development projects. Some share their profits with original inventors. Some facilitate open innovation. Some are doing all of the above. Condemning SPFs as patent trolls amounts to dismissing the true innovations, research, and development that have been the hallmarks of many industries and sectors in Japan, South Korea, China, and France.
SPFs have also been condemned as a trade protectionist measure in violation of international trade law. Part IV examines the heavy charges that SPFs discourage international technology transfers, depress innovation, force foreign companies to accept unfavorable license terms akin to discriminatory tax, support domestic industries at the expense of foreign firms, resurrect ailing national companies, and cause a race to the bottom. Part IV found no evidence to support these condemnations. On the contrary, what SPFs have done since their existence refutes these charges.
If SPFs are illegal subsidies in violation of international trade law, there is an appropriate mechanism to remedy the harm. Part V turns to the WTO solution, analyzing relevant provisions of the WTO Agreement on Subsidies and Countervailing Measures. Part V discusses WTO Tribunal decisions, as they illuminate and interpret legal requirements in subsidy cases. Part V further suggests that the international framework is suited to eliminate SPFs if evidence exists that a particular subsidy is causing injury to a domestic industry. Certainly, using the appropriate channel to address SPFs is preferable to dismissive and pejorative labeling.
Part VI, however, posits that an international trade solution might be unnecessary because SPFs may soon be relics of the past. SPFs can easily alter their structure to remove the government-sponsored characteristic to quiet critics and restless nation litigants in the WTO Tribunal. Moreover, the global innovation and patent market is dynamic and complex; SPFs will not be able to survive and flourish if they are under governmental control. Part VI observes that, in fact, some prominent SPFs are planning to privatize in order to compete and adapt. 
Overall, by creating and infusing SPFs with public funding to aggregate patents, a government can seem to have ownership and control of the patents while simultaneously wielding authority in dispute proceedings relating to those very same patents. The government can block or rule against others from challenging the validity of patents. The same government may coerce others into accepting unfavorable patent license terms. The same government also may protect domestic firms at the expense of foreign firms. Such an arrangement seems to create many conflicts. Additionally, SPFs may be illegal subsidies under international trade law. Also, the creation of SPFs suggests a new global chaos in patents. The new chaos raises fear that SPFs would cause a race to the bottom. SPFs become sovereign patent trolls with levers more potent than private patent trolls, depressing innovation for short-term gains. The fear about SPFs, however, is exaggerated. These concerns perhaps emanate from the tendency to group all SPFs from different countries into one and characterize them within the convenient patent troll narrative. Fear not, the present and future development of different SPFs should instead prompt us to rethink patents and the very laws creating them.
Nguyen comments
In the year 2000, a new patent aggregation business emerged under the name Intellectual Ventures (“IV”). Armed with more than five billion dollars from global companies such as Microsoft, Intel, Sony, Nokia, Apple, Google, Yahoo, American Express, Adobe, SAP, Nvidia, and eBay, IV aggressively acquired patents. Within its first ten years of existence, the privately-held company occupied the enviable spot of being one of the top five U.S. patent owners. In March 2009, IV expanded its reach globally to Japan, South Korea, Taiwan, China, India, and other countries, hoarding patents in important industries as it opened new offices on foreign soil. IV operated with a core belief that “ideas are valuable” which led it to build “the invention capital market.” As of today, IV owns a portfolio of 70,000 patents and collects more than three billion dollars in licensing fees. IV, however, is the leader in the category of “a special brand of hatred in the business world as the ultimate patent troll.” There are other patent aggregators with different business models in the patent market. For example, Acacia Research Corporation is the largest publicly traded patent-licensing company. The corporation is also known as “the mother of all patent trolls.” It touts that its business model as an intermediary between patent owners and licensees has brought three-quarters of a billion dollars to patent owners. Allied Security Trust (“AST”), a Delaware Trust, was founded in 2001 to identify, purchase, license, and divest high technology patents. AST aggregates patents from individual inventors, brokers, firms, and academic institutions. As a member-based cooperative, AST assists its members by helping to purchase patents as part of AST’s divesting solution and by licensing strategic patents to its members. Likewise, Google initiated its own patent acquisition, calling on the public to offer up their patents for purchase and then buying up twenty-eight percent of the patents submitted. In May 2016, AST announced the first Industry Patent Purchase Program (“IP3”), an industry-wide, massive patent aggregation backed by Google, Facebook, IBM, Microsoft, Adobe, SAP, Ford, Honda, Hyundai, Kia Motors, Verizon, Cisco, Arris, and many other multinational companies. IP3 has targeted enterprise software, communications, networking, semiconductors, automotive, content delivery, and cloud computing. Alarmed by the rise of powerful patent aggregators in the United States, governments from other countries have decided to counter with their own initiatives of aggregating patents through the establishment of Sovereign Patent Funds (“SPFs”). In the last few years, Japan, South Korea, China, Taiwan, and France have each launched SPFs. Other countries, including Canada, ponder whether they should join the trend to create their own SPFs and participate in the patent market.

Energy Market

The Energy and Water Ombudsman Victoria report on complaints highlights market practices that verge on harassment.

It states
EWOV’s identification and reporting of systemic issues plays an important part in reducing the potential for problems or practices to affect more customers. Our recent casework has highlighted several systemic issues related to energy marketing practices. With a view to curtailing the impact of these practices on customers, the Ombudsman has written to the Australian Competition and Consumer Commission (ACCC).
The report also identifies systemic issues identified through EWOV’s case handling.
The issues have arisen in both door-to-door and telephone sales, with customers complaining of misleading and high-pressure sales tactics and transfer of their account to a different energy retailer without their consent: 
Over 2016 and 2017, EWOV received 15 complaints from customers complaining that they’d received an excessive number of telephone sales calls from a small retailer. The retailer’s explanation was that this was the result of poor practices by two different sales companies it had engaged, and the practices were subsequently stopped. (SI/2016/50) 
Over 2016 and 2017, 17 customers complained about a small retailer’s misleading door-to-door marketing and related transfers without consent. The retailer’s explanation was that the complaints related to conduct by multiple sales companies. It said one sales agent was dismissed and agents were retrained. (SI/2016/72) 
In early 2018, several customers complained about transfers without consent following telephone marketing calls from a small retailer. The retailer’s explanation was that its sales company had obtained explicit informed consent, but some customers seemed to be unaware they were agreeing to transfer. It said it had since modified the consent procedure to include a customer ID check, which would make it clearer that the customer was agreeing to a transfer. (SI/2018/15) 
EWOV is currently investigating a potential systemic issue (SI/2018/26) relating to door-to-door sales. A different small retailer’s practices have prompted a customer complaint about transfer without consent. 
Poor customer communications during unplanned outage event 
During a weather-related unplanned outage in January 2018, around 14,000 customers were affected by problems with the local electricity distributor’s website, faults and emergency lines, and notifications. The distributor acknowledged the problems. It said it was using what went wrong to help it plan for future events. This included making changes to its website and SMS messaging system. SI/2018/7 
Transfer complaints follow telephony problems 
An energy retailer linked a spike in transfer complaints to the systemic telephony issues EWOV had investigated previously (SI/2018/10). It said some customers had changed their mind about switching, and others didn’t think they’d entered into a formal contract because they weren’t asked for identification at sign-up. The retailer maintained that its sales company had obtained explicit informed consent for the account transfers, but some customers still seemed to be unaware they were agreeing to switch retailer. It said it had since modified its consent procedure to include a customer ID check, to make this clearer. SI/2018/15 
Backbilling further than code allows 
Through EWOV’s case work, we identified that some customers had been backbilled for longer than allowed under the Energy Retail Code. The energy retailer advised that it had since changed its billing system processes to generate reports identifying bills for periods of over nine months. It now assesses whether a credit should be applied to reduce that billing to nine months. It said it had also updated the guidelines its employees follow in these cases. The retailer said it had provided affected customers with a credit of charges outside the billing time limit. SI/2016/74 
Contract unclear on application of off-peak rates 
EWOV’s case work revealed that a customer had been billed on peak rates for all usage, despite an off- peak rate being listed on the welcome pack he was sent. The retailer responded that strict observance to network tariffs is not mandatory. It said that, under the Energy Retail Code, a retailer is required to notify the customer of all applicable prices and tariffs as part of their contract. It maintained it had complied with this in its paperwork, which listed peak, off-peak and solar tariffs. While the energy retailer appeared to have complied with relevant laws and codes, we communicated EWOV’s assessment that its contract paperwork wasn’t clear about when off-peak rates were applicable. SI/2017/11 
Connection delays due to industrial action 
Industrial action, by way of work bans by its contractors’ union, resulted in disruption to an electricity distributor’s new connections. Once the union lifted the bans, delayed connections were completed. Under the Electricity Distribution Code, a distributor must connect a new connection on an agreed date or within 10 business days of the request. Where it doesn’t meet this timeframe, the distributor must make a Guaranteed Service Level (GSL) payment of $70 for each day it is late, up to a maximum of $350. The energy distributor advised that it would make GSL payments to affected customers. SI/2017/25 
New connection service orders rejected 
EWOV’s case handling highlighted that an energy distributor’s system was rejecting new connection service orders. The distributor advised that recent changes by the Australian Energy Regulator meant that new connections now needed three service orders. It said the rejections related to service orders submitted by one energy retailer. In consultation with the retailer, it had made a system change to address the problem. SI/2018/24 
Application of credit default listings 
Several cases to EWOV highlighted that an energy retailer had applied credit default listings after customers defaulted on their agreed payment arrangements, but hadn’t sent the customers the required notices. Advice to EWOV from the Office of the Australian Information Commissioner was that this was incorrect. The energy retailer agreed that the information it provides to its customers about its default listing process could be clearer, including the possible consequences if the customer defaults on a payment arrangement. The retailer undertook to amend its payment arrangement letters to include an additional notification statement. SI/2018/8 

19 August 2018

Snakes in suits

'Maskers of the Universe: Generating Transparency Around Antisocial Personality Traits of Executive Leaders in Corporate America' by Nicolette J. Zulli  comments
One out of every five chief executives is a psychopath who is consumed with playing a game of corporate accomplishment, as he takes inhumane pleasure in violating moral code to ensure his dominance and personal gain over others in the workplace. In fact, there are a growing number of “triadic persons” in the American workforce, who combine three types of antisocial personalities: narcissism, sociopathy, and psychopathy. These individuals are drawn to positions of power and prestige, making corporate America the ideal breeding ground for producing the number one most psychopathic profession: The Corporate CEO. These actors are intrinsic experts at performing a routine of tantalizing charm and believable devotion. Meanwhile, with the absence of an effective mechanism designed to highlight the antisocial tendencies of C-Level leaders in current hiring and promotion processes of publicly-traded companies, these corporations, their employees, and shareholders remain unable to expose the bad actors who are stealthily permeating the fabric of U.S. commercial markets. In order to generate the transparency necessary to afford employers, stockholders, boards of directors, and regulators the opportunity to make informed decisions about America’s corporate leaders, this Note proposes the SEC’s promulgation of an optional Corporate Character and Fitness (“CCF”) Disclosure tool, designed to unmask the antisocial personality traits of executive leaders employed by publicly-traded companies, in order to better gauge their risk propensity.
'Advertising Morality: Maintaining Moral Worth in a Stigmatized Profession' by Andrew C. Cohen and Shai M. Dromi comments 
Although a great deal of literature has looked at how individuals respond to stigma, far less has been written about how professional groups address challenges to their self-perception as abiding by clear. In this paper, we ask how professional group members maintain a positive self-perception in face of moral stigma.Drawing on pragmatic and cultural sociology, we claim that professional communities hold narratives that link various aspects of the work their members perform with specific understanding of the common good. These narratives allow professionals to maintain a shared view of their work as benefitting society and to perceive themselves as moral individuals. As a case study, we focus on the advertising industry, which has long been stigmatized as complicit in exploitative capitalist mechanisms and cultural degradation. We draw on 9 total months of fieldwork and 74 interviews across three U.S.advertising agencies. We find that advertising practitioners use narratives to present their work as contributing to the common good, depicting themselves as moral individuals who care about others in the process. We analyze three prevalent narratives: the account-driven narrative, which links moral virtue to caring for clients; the creative-driven narrative, which ties caring to the production of meaningful advertisements; and the strategic-driven narrative, which sees caring in finding meaningful relationships for consumers and brands.