Disasters

The Senate Select Committee on Australia’s Disaster Resilience 'Boots on the ground: Raising resilience' report features the following recommendations 

Recommendation 1 

The committee recommends that the Disaster Recovery Funding Arrangements and relevant guidelines be amended to enable funds to be distributed for the purpose of building betterment into recovery and reconstruction, ensuring that this funding is available to all jurisdictions. 

Recommendation 2 

The committee recommends that the Australian Government establish a national asset register to improve the efficiency of the deployment of resources in the aftermath of a disaster. The Government should consider whether it is feasible to include not only federal and state government assets, but also suitable local community, private sector and non-government organisation assets. 

Recommendation 3 

The committee recommends that the Disaster Recovery Funding Arrangements be amended to set aside a proportion of funding to be offered to local governments up-front to help facilitate disaster recovery and resilience to ensure councils do not always have to bear the burden of financing repairs up-front. 

Recommendation 4 

The committee recommends that the Australian Government consider amendments to the Fair Work Act 2009 to legislate time off for volunteers working with registered organisations and for volunteers to be granted leave from employment, similar to the provisions provided to Reservists under the Defence Reserve Service (Protection) Act 2001. 

Recommendation 5 

In circumstances where the cost of relevant training is not covered by the organisation, the committee recommends that the Australian Government consider amendments to legislation, policy and guidelines to allow volunteers working in organisations such as State Emergency and Rural Bushfire Services to claim tax deductions for training and courses that are a part of their emergency volunteering. 

Recommendation 6 

The committee recommends that the Australian Government establish a national disaster mental health hub to coordinate and provide mental health resources, training, and support for first responders and communities xiv affected by disasters across the nation. This hub should serve as a comprehensive resource centre for addressing the mental health needs of all stakeholders involved in disaster response and recovery efforts. 

Recommendation 7 

The committee recommends that the Australian Government design and implement consistent national trauma-informed care principles, ensuring that first responders—both professional and volunteer—receive training and support in these national principles to better address the mental health and well-being of disaster-affected individuals and communities. 

Recommendation 8 

The committee recommends that the Australian Government convene a disaster resilience mental health summit to hear from all related agencies and stakeholders to identify solutions to the mental health impacts of disaster. 

Recommendation 9   

The committee recommends that the Australian Government consider how it can further support Disaster Relief Australia, and other similar organisations, not only with funding beyond 2026, but also how the Australian Government can further incorporate Disaster Relief Australia into its national disaster response arrangements and boost its numbers through partnerships with the Australian Defence Force and the Department of Veterans’ Affairs. 

Recommendation 10 

The committee recommends that the Australian Government consider ways to incentivise young Australians to participate in volunteer organisations that provide support for disaster response and recovery.

Emergencies, labels and restraint

Heydon J in Pape v Commissioner of Taxation [2009] HCA 23 at [551] quipped: 

 The truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems. They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought. Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions. Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use. The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”

COVID Cases

Knowles v Commonwealth of Australia [2022] FCA 741, noted in the preceding post, includes a useful itemisation of recent COVID judgments - 

[34]    This is not the first piece of litigation to challenge COVID-19 restrictions before an Australian Court. Some of the authorities below featured in the submissions of the respondents. The applicants tended to submit they were all distinguishable, or should not control the outcome of the summary dismissal applications. ...   

35 In Palmer v Western Australia [2021] HCA 5; 95 ALJR 229, the plaintiffs, who were located in Queensland, brought a challenge to border restrictions imposed pursuant to the Emergency Management Act 2005 (WA) (EM Act WA). The nature of the challenge is summarised by Kiefel CJ and Keane J at [13]:

The plaintiffs claim that the Directions impose an effective burden on the freedom of intercourse among the Australian people in the several States by prohibiting cross-border movement of persons, backed by a criminal sanction. Alternatively, they allege that the freedom of trade and commerce guaranteed by s 92 is contravened because the Directions impose an effective discriminatory burden with protectionist effect. 

36 The High Court rejected all the challenges, with various justices giving different reasons for their rejection. ... 

 37 Senior and junior counsel in the current proceeding also appeared for the applicant in Kassam v Hazzard [2021] NSWSC 1320; 393 ALR 664 (Kassam NSWSC). The judgment dealt with two originating proceedings together. Beech-Jones CJ in CL’s reasons in Kassam NSWSC were relied on heavily by the respondents in this proceeding. Kassam NSWSC concerned orders made under the Public Health Act 2010 (NSW) (NSW PH Act). His Honour described at [1] the subject matter of the proceedings:

The main focus of the two proceedings the subject of this judgment is those aspects of those orders which prevented so called “authorised workers” from leaving an affected “area of concern” that they resided in, and prevent some people from working in the construction, aged care and education sectors, unless they have been vaccinated with one of the approved COVID-19 vaccines. 

38 Like some of the applicants in the present proceeding, the plaintiffs in Kassam NSWSC had made an informed choice to refuse to be vaccinated. Kassam NSWSC was a judicial review proceeding, although there was also a constitutional challenge, as there is here. The court heard evidence, including expert evidence, and pronounced final orders dismissing the proceeding and rejecting all challenges made to the orders. 

39 Kassam NSWSC is a seriously considered, and extensive, judgment of a superior State Court concerning a series of similar challenges to the pleadings in this case. ... 

 40 The NSW Court of Appeal granted leave to appeal to the Kassam NSWSC plaintiffs on several grounds, but in a carefully reasoned judgment, dismissed the appeals: Kassam v Hazzard [2021] NSWCA 299 (Kassam NSWCA). 

41 Together, the decisions in Kassam NSWSC and Kassam NSWCA at first instance and on appeal (together, Kassam) should be seriously and carefully considered on the respondents’ present applications. It is truth that only the NSW restrictions were in issue, however some of the constitutional arguments raised there are also raised in this proceeding. For those arguments, there was no material distinction highlighted by the applicants which suggested that the prospects of success of those arguments depended on which State or Territory measures were being considered. They were contended to apply to all the Measures, equally. Decisions of an intermediate appellate court (here, the NSW Court of Appeal) about the interpretation and operation of the Constitution should be treated as falling into the category of decisions which a primary judge should follow, unless firmly persuaded the decision is wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at 151-152 [135]. The Constitution is the preeminent federal law of this country, and in my opinion, the same principle should apply: see also Ng v Commissioner of the Australian Federal Police [2022] WASCA 48 at [194]-[198]; Owen v Menzies [2013] 2 Qd R 327; [2012] QCA 170 at [3]-[4], [47]-[49]. I should therefore not depart from the approach taken in Kassam NSWCA by the NSW Court of Appeal to the constitutional arguments, at least, unless satisfied it is wrong, or plainly wrong, however the term is to be understood: see the discussion by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [2]-[11]. Leave to appeal was rejected on the constitutional arguments: Kassam NSWCA at [41]. 

42 Recently, in Hill v Zuda Pty Ltd [2022] HCA 21 at [25] the full High Court suggested the better expression to “plainly wrong” might be “unless there is a compelling reason to do so”, referring to the use of that expression in RJE v Secretary to the Department of Justice (2008) 21 VR 526 at 554 [104]. The Court also made the point (at [26]) that:

intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them. .. 

43 As I explain below, I respectfully agree with the approach of Beech-Jones CJ at CL in Kassam NSWSC on all issues (not just constitutional issues), and I respectfully agree with the approach by the NSW Court of Appeal in the appeal in Kassam NSWCA on the issues on which it granted leave. Its decision not to grant leave on other issues, and reasoning for doing so, is also of some significance in these applications. Irrespective of the strict position under the authorities I have referred to at [41]-[42], I respectfully agree with the reasoning in the two Kassam decisions. ... 

44 Cotterill was a judicial review proceeding challenging directions made under the Public Health and Wellbeing Act 2008 (Vic) (Vic PHW Act), based on an alleged infringement of the implied freedom of communication about governmental or political matters in the Commonwealth Constitution. Niall JA dismissed the proceeding. In so doing, his Honour held that the High Court’s decision in McCloy v New South Wales [2015] HCA 34; 257 CLR 178 required the assessment of any alleged infringement to be applied to the legislation concerned, rather than to directions made under the legislation. Niall JA held that the provisions of the Vic PHW Act which authorised the making of the directions were valid in all their potential operations insofar as they may impose a burden on political communication: at [9]. His Honour found the legislative provisions served a legitimate purpose and there were significant constitutional limitations that confined their exercise and ensured that no lawful exercise of power could be “obnoxious to the constitutional freedom”: see [9]. Furthermore, his Honour decided that, even if the McCloy test were to be applied directly to the directions themselves (as the plaintiff had submitted it should), the directions would not be invalid by reason of their burden on political communication. While in the present proceeding there is no pleaded case based on the implied freedom of political communication, I consider the decision Cotterrill is important, and refer to it below. ... 

45 Loielo v Giles [2020] VSC 722; 63 VR 1 was an earlier challenge to a direction made under the Vic PHW Act. The impugned direction imposed a curfew in greater Melbourne from 9.00 pm to 5.00 am. The plaintiff sought judicial review on the grounds of legal unreasonableness and a lack of independence of the person who issued the direction – the State’s Chief Health Officer – from the Premier of Victoria. Ginnane J dismissed the proceeding, finding that the Chief Health Officer had not issued the direction at the Premier’s behest, and determining that the issuing of the direction was not affected by any legal unreasonableness, irrationality or illogicality and was instead a lawful exercise of the emergency powers conferred by the Act, and was proportionate to the risk posed by the COVID-19 virus. ... 

46 Like Kassam, Larter v Hazzard (No 2) [2021] NSWSC 1451 involved a challenge to orders made under the NSW PH Act. The orders in question effectively prohibited healthcare work by unvaccinated people. In a claim for declaratory and injunctive relief, the plaintiff contended that the orders were legally unreasonable – that it was not open to the Minister to make the orders, having regard to the risk to public health caused by COVID-19. Adamson J dismissed the claim, finding that it was reasonably open for the Minister to make the orders concerned. .. 

47 5 Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785 differed in nature from the other cases above. It concerned two representative claims in negligence, each brought on behalf of persons who alleged they had suffered economic loss resulting from Victoria’s stage 3 and 4 lockdown restrictions, during the ‘second wave’ of the pandemic. As pleaded, the plaintiffs’ cases contended this loss ultimately flowed from the allegedly negligent hotel quarantine program applied in Victoria. The defendants applied for summary judgment, or striking out of the representative plaintiff’s statement of claim. John Dixon J refused the summary judgment application, but struck out the entirety of the statement of claim. His Honour found that the plaintiff had failed to properly identify the duty supposed to be owed by the State of Victoria to take reasonable care to ensure that the State’s hotel quarantine program was implemented effectively, but granted leave to the plaintiff to re-plead its case. .. 

48 Gerner v State of Victoria [2020] HCA 48; 270 CLR 412 concerned proceedings commenced in the High Court’s original jurisdiction to challenge the constitutional validity of s 200(1)(b) and (d) of the Vic PHW Act and the lockdown directions made under those provisions. The plaintiffs submitted that the legislative provision and directions infringed a guarantee of a general freedom of movement contended to be implicit in the Commonwealth Constitution, and contended to “[stand] independently of political communication and independently of interstate trade, commerce and intercourse”: Gerner at [9]. The State of Victoria demurred, and the Court upheld the demurrer. The Court held unanimously that there was no basis in the text and structure of the Constitution for the contended implication: at [9].

Emergencies

'The Defence Act 1903 (Cth): A Guide for Responding to Australia's Large-Scale Domestic Emergencies' by Zoe Lipsis in (2022) 45(2) Melbourne University Law Review comments 

 Drawing upon the Australian 2019–20 bushfire season and the COVID-19 pandemic, this article examines case studies highlighting the legislative impact of the increased domestic deployment of the Australian Defence Force (‘ADF’). Leveraging compa rable provisions from an analogous statutory regime, namely pt IIIAAA of the Defence Act 1903 (Cth), it considers how existing legislative provisions can provide guidance for the development of a statutory framework to govern future deployment of the ADF in response to Australia’s large-scale domestic emergencies. 

 Lippis states 

Encapsulating the tension between the civil–military divide, the domestic utilisation of the Australian Defence Force (‘ADF’) has been a ‘critical and controversial issue’ since Federation. With increased calls for the domestic deployment of the ADF, as a result of regional instability, terrorism, and natural disasters, debate has been reignited regarding the use of the military for purposes outside their traditional external defence role. The catastrophic bushfire season of summer 2019–20 reinstated the domestic utilisation of the ADF on the national political agenda.4 As the Morrison government unilaterally mobilised the military to provide support to civilian agencies,5 scrutiny of the military’s internal role intensified. Furthermore, the arrival of the COVID-19 pandemic on Australian shores in January 20206 prompted additional questions surrounding the ADF’s domestic role. For the second time in 2020, ADF members were deployed across Australia, this time to assist civilian agencies as they battled an insurmountable global public health emergency. 

Drawing upon these case studies, this article will examine the impact of legislation upon the increased domestic deployment of the ADF. Leveraging upon comparable provisions from an analogous statutory regime, namely pt IIIAAA of the Defence Act 1903 (Cth) (‘Defence Act’),8 it will consider how existing legislative provisions provide guidance for the development of a statutory framework to govern future internal deployment of the ADF during large-scale domestic emergencies. 

The article will commence by examining, in Part II, the ADF’s recent role in response to domestic crises, most particularly the Australian 2019–20 bushfire season and the COVID-19 pandemic. It will proceed in Part III to consider the existing legal basis for the domestic deployment of the military for disaster relief activities, including the Defence Assistance to the Civil Community (‘DACC’) policy framework. Following an analysis of the benefits of a legislative regime to govern ADF domestic operations, the article will examine in Part IV how pt IIIAAA of the Defence Act can provide guidance for the creation of a comparable Commonwealth legal framework for the domestic deployment of the ADF during large-scale disaster relief activities. The final section of the article, Part V, will recommend legislative provisions for inclusion within a new statutory regime, based upon an analysis of analogous provisions within pt IIIAAA. It will propose that while the DACC policy regime has served Australia well to date, the anticipated increase in requests for ADF domestic assistance warrants serious consideration as to whether a legislative framework is required to underpin such operations in the future. The article will conclude by proposing that existing provisions of the Defence Act provide significant guidance for the development of a Commonwealth statutory regime to govern future ADF assistance during large-scale domestic emergencies.

Gouging

'Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices During Times of Crisis' by Mark Giancaspro in (2021) 44(4) UNSW Law Journal 1458 comments - 

 Recent crises affecting Australia, including the Black Summer bushfires and Coronavirus pandemic, have devastated social morale and crippled our economy. Countless lives and properties have been damaged or lost. These conditions have inflated demand for basic consumer goods and services, such as hygiene products, staple foods, and utility services. Sadly, some sellers have exploited public desperation, with widespread reports of price gouging. This notorious practice involves pricing high-demand essentials at levels significantly higher than what is commonly considered acceptable, reasonable or fair. This article critically analyses moral and economic arguments surrounding statutory controls before proposing a model law regulating price gouging during times of crisis. It argues that such a law is both essential and easily adaptable to Australia’s consumer law framework. The model law provides a basis for the federal government to consider desperately required change to ensure consumers do not suffer during current crises or those to come. ... 

The 2019–20 Australian bushfire season, referred to by Prime Minister Scott Morrison and others as the ‘Black Summer’, was one of the worst in the nation’s history. A series of ferocious fires burned relentlessly and caused widespread devastation across the country, primarily throughout New South Wales and the Australian Capital Territory. More than 10 million hectares were scorched, 3,000 homes and 7,000 other buildings were destroyed, 33 people and one billion animals killed. Disturbingly, in the midst of the crisis, reports surfaced of some retailers doubling the price of bottled water and tripling the price of loaves of bread. 

As the fires were finally contained and extinguished, Australia, as with the rest of the world, was then gripped by a Coronavirus (COVID-19) disease pandemic. The illness rapidly spread, infecting millions and killing hundreds of thousands. Governments around the globe have responded swiftly, imposing ‘lockdowns’ of various kinds, most of which have forced many non-essential businesses to close temporarily. Following the formation of the National Cabinet on 13 March 2020, the Australian federal, state and territory governments imposed a series of restrictions on non-essential gatherings, travel, events and business trade. As at October 2021, some nations which have successfully ‘flattened the curve’ are beginning to relax restrictions while others continue to struggle with containment. A selection of countries, like Australia, find themselves in the middle of the spectrum (with some parts of the country being effectively free of the virus and others battling growing numbers of infections). Again, like when the Black Summer struck, the selfish side of humanity reared its head, with widespread reports of profiteering by retailers and private sellers. In some cases, retail prices on basic goods such as toilet paper and hand sanitiser, as well as medical supplies such as surgical face masks, skyrocketed as panic-driven demand surged. 

These pricing practices are classic instances of ‘price gouging’. This term describes the practice of sellers pricing goods or services at a level significantly higher than what is objectively considered acceptable, reasonable or fair. This practice is normally a response to abrupt increases in demand or decreases in supply, with such fluctuations invariably being triggered by crises such as natural disasters. The exorbitant price increases are generally short-lived and confined to a particular geographical area, especially those which are remote and have difficulty accessing coveted goods and services. 

This article argues that this practice is reprehensible and advocates for legal reform to protect consumers from the same during times of crisis. It does so in four parts. Part II briefly investigates the economic forces driving this behaviour. Part III explores existing legal protections in Australia and abroad pertaining to price gouging, considering and appraising the various models that exist. Part IV evaluates the arguments both for and against the introduction of laws specifically proscribing price gouging, submitting that the benefits of such laws outweigh the drawbacks. Finally, Part V suggests a model anti-price gouging law for inclusion within the Australian Consumer Law (‘ACL’). It is ultimately argued that laws prohibiting price gouging are not only justifiable but essential.

Persuasion and impersonation

Today's national government media release regarding COVID, offering an insight into public health promotion, states 

An important education campaign will be rolled out to inform Australians ahead of the COVID-19 vaccination program. 

The vaccination roll-out will be a complex task and it will be important that people understand the process with the first vaccinations on track for early next year. 

Minister for Health, Greg Hunt said the Mid-Year Fiscal and Economic Outlook 20-21 (MYEFO) reinforces the Australian Government’s commitment to continue to protect the community and get lives back to normal through this pandemic. 

“The information campaign, with funding of $23.9 million, will work in partnership with the states and medical experts, to explain the regulatory processes, the priority groups, timing and roll-out to assist people to understand how the vaccines work, and to be ready for when they can receive the vaccine,” said Minister Hunt. 

“The vaccines will be voluntary and free, we encourage people to have the vaccine to protect themselves and their family.” 

“It is essential that people understand that Australia’s medical regulatory processes need to occur before the vaccines are approved for use. We are receiving data from overseas and this will assist in finalising the priority groups for the vaccinations, putting our health and aged care workers in the first wave along with elderly Australians who are at most risk from the virus,” Minister Hunt said. 

The COVID-19 vaccine communications will include a national advertising campaign and communication specifically targeting priority groups, culturally and linguistically diverse (CALD) groups and Aboriginal and Torres Strait Islander people. 

Over $40 million in funding is being provided to streamline processes necessary to the approval and distribution, so the clinical information can be assessed in real time. 

The funding for Services Australia, the Australian Digital Health Agency and Therapeutic Goods Administration will allow necessary enhancements aimed at reducing existing manual processes and improving digital integration across these systems. 

The Government is also improving critical capacity requirements for the Australian Immunisation Register, as the Government’s central resource for recording COVID-19 vaccinations so people will have a record of their vaccination. This will be essential as all current vaccines planned for Australia require a two-vaccine process. 

The Government is securing 20 million additional doses of the AstraZeneca COVID-19 vaccine. This brings the total number of doses to 53.8 million – enough for the entire Australian population. 

The extra 20 million doses will be produced in Australia by CSL. 

Additionally, a further 11 million doses of the Novavax vaccine will be purchased, bringing the total for this vaccine to 51 million. This will be an additional whole-of-population vaccine should it be proven to be safe and effective. 

A purchasing agreement is also in place for the Pfizer/BioNTech COVID-19 vaccine, with 10 million doses scheduled for early 2021. 

Building Australia’s vaccine manufacturing capacity 

The Australian Government is investing $1 billion to ensure Australia’s capacity to manufacture vaccines in the future, though its supply agreement with Seqirus. 

The Government will extend the current supply agreement with Seqirus, ensuring long-term, onshore manufacturing and supply of products of national significance including pandemic influenza vaccines, Q fever vaccines, and Australian-specific antivenoms from 1 July 2024 through to 2036. Under this agreement, Seqirus will invest more than $800 million in a new state-of-the-art biotech manufacturing facility in Melbourne.

In the United States the House of Representatives Committee on Veterans' Affairs report 'Hijacking Our Heroes: Exploiting Veterans Through Disinformation on Social Media' states 

The threat of foreign individuals and organizations influencing United States (U.S.) elections by manipulating social media has been a persistent and growing issue since before the 2016 election year. The threat was a significant concern during the 2020 elections. 

Recent investigations and analysis document the broad proliferation of online influence campaigns that originate overseas. This includes the use of "spoofing,'' or the act of disguising an electronic communication from an unknown source as being from a known, trusted source. A subset of these operations target the veteran and military service member communities in order to misappropriate their voices, authority and credibility. The pervasiveness of social media, as well as the nature of the specific threat to our election integrity and the sowing of political discord makes this a critical issue affecting both veterans and those who value veterans' voices. As described by Chairman of the House Committee on Veterans' Affairs, Mark Takano (D-CA), "the issue of protecting our elections from foreign influence is one of critical importance to all Americans and preserving the power of veterans' voices should be of equal concern to us all.'' 

VETERANS ARE SPECIFICALLY TARGETED FOR SPOOFING 

On Wednesday, November 13, 2019, the House Committee on Veterans' Affairs held an investigative hearing to examine the nature and scope of threats posed to the veterans' community through "internet spoofing.'' Experts testified that stolen, misappropriated, or fraudulently created social media accounts can be used to target veterans for the purposes of disseminating political propaganda and fake news in order to influence elections. The witnesses also described romance scams and commercial fraud being perpetrated using spoofing techniques. Representatives of three major social media platforms--Facebook, Instagram, and Twitter--discussed how they are addressing this threat, particularly considering the 2020 elections, and described best practices for information sharing, protective measures, and law enforcement cooperation. The Committee later held a briefing on January 14, 2020, with representatives from several components of the Federal Bureau of Investigation (FBI) that handle law enforcement for online crimes. 

Ranking Member Dr. David P. Roe (R-TN) noted during the hearing, "The evidence is clear that veterans have their identity misappropriated and that they, like other social media users, could be targets for propaganda or scams."Although everyone who uses the internet is subject to online scams, spamming, phishing, identity theft, and other such risks, veterans are particularly susceptible to internet spoofing based on their higher propensity for political engagement (including running for office, volunteering, and sharing political opinions and information). For the purposes of disseminating political propaganda or exerting influence on dividing Americans on sensitive political "wedge issues,'' veterans are targeted because of their close identification with strong national security policies, patriotism, personal sacrifice, and honor. Chairman Takano stated during the hearing,  "By impersonating veterans, these foreign actors are effectively eroding the hard-earned power and integrity of veterans'' voices.'' 

Veterans are more likely to be engaged in their communities, be perceived as leaders, and can exert influence on political matters (particularly with respect to defense and national security matters). Therefore, a successful spoofing scam that results in a veteran or Veteran Service Organization (VSO) unknowingly distributing or endorsing a piece of disinformation can yield greatly increased, and sometimes even exponential, results due to the added credibility imparted to that disinformation by virtue of its approval by the veteran or VSO. With each successive endorsement or share, the credibility of the disinformation snowballs. The collective association with actual veterans and VSOs makes it increasingly unlikely that the disinformation will be closely scrutinized, questioned, or eventually exposed as fraudulent or misleading. Moreover, scammers also try to spoof veterans to gain leverage over them. Many veterans move into jobs requiring security clearances or within the federal government after they leave the military--those positions can be jeopardized if the veteran is compromised through financial fraud, identity theft, or otherwise becomes susceptible to blackmail. 

SPOOFING OF VETERANS THREATEN U.S. ELECTIONS 

Internet spoofing became a visible problem in the context of the 2016 U.S. election, when foreign disinformation spread widely across social media, including Facebook, Instagram, Twitter and YouTube, among others. However, disinformation on social media and information operations conducted by sophisticated actors have occurred for far longer. In the past few years, foreign information operations have targeted divisive political issues within American society and have sought to manipulate and divide political and social communities. Unfortunately, our military and veterans' communities are no exception. Moreover, the incidents of foreign spoofing increased following the 2016 election, and industry experts project that these numbers will continue to increase through 2020 and beyond. Russia's Internet Research Agency (IRA), a Russian company which has engaged in online influence operations, more commonly known as a "troll farm,'' dramatically expanded its information operations after the 2016 U.S. Presidential elections, both in terms of volume and intensity. Russia and Iran are the most prominent state actors in this context, but recent work has identified additional state actors, such as China and Saudi Arabia, using information operations to target communities and topics of interests. 

The Senate Select Committee on Intelligence published a five-volume bipartisan report focused on Russia's influence operations. The second volume focused on Russia's use of social media platforms to influence the election, while the third volume focused on the shortcomings of Obama Administration efforts to combat the ongoing attacks. The third volume highlighted the lack of legislative or regulatory action to combat a known threat emanating from Russia and its intelligence services. The Senate Report sheds light on the broader issues of misinformation campaigns and predatory schemes targeting veterans presented in a report prepared by the Vietnam Veterans of America (VVA). 

ACTION BY LAW ENFORCEMENT AND SOCIAL MEDIA PLATFORMS IS INADEQUATE 

Industry analysts, journalists, and law enforcement agree that the problems of internet spoofing and foreign influence exerted through social media continue to grow at an alarming pace. However, neither the major platforms nor the FBI were able to identify an obvious or comprehensive solution to this ongoing problem. Both continue to devote significant resources towards combatting spoofing. However, the foreign entities who perpetrate much of this illicit activity are becoming more sophisticated in their schemes and are targeting broader swaths of internet users to more quickly and efficiently disseminate their fraudulent messaging before they are identified and deactivated. 

Facebook and Twitter note that automated systems can struggle to differentiate authentic images and accounts from fraudulent, unauthorized, or duplicated accounts and thereby risk erroneously flagging and removing legitimate accounts. The platforms have chosen to err on the side of minimizing false negatives by relying upon patterns of suspicious activity and certain tactics or techniques, rather than on other identifying data (e.g., duplicative names or images, geolocation information, or ostensible organizational affiliations). Suspicious activity patterns, such as irregular, repetitive, or voluminous posting, triggers additional layers of review, including an examination of the geolocation data in order to assess where the suspicious activity may be originating. The final review and removal decisions sometimes warrant human examination, but often removals are made without any human review. Although these layered review processes may be effective in protecting legitimate users, they undoubtedly also add a significant gap in removal time for fraudulent accounts, which provides a window within which spoofers can continue to operate. 

Law enforcement agencies, such as the FBI, are constrained in their abilities to efficiently identify and eliminate spoofers because the agencies only have limited access to the data held by the social media platforms. Often these agencies do not receive important information until after the platforms have already removed a spoofed account, at which point law enforcement is unable to actively monitor and trace the account in real time. 

The ability of spoofers to operate from overseas, anonymously, or by using fraudulent or concealed identities requires law enforcement to rely upon account identification data and detailed activity patterns in order to accurately identify or locate the potential spoofer. However, Title II of the Electronic Communications Privacy Act (ECPA) (18 U.S.C. Sec. Sec. 2701-2713), known as the Stored Communications Act, requires a government entity to serve a subpoena on social media platforms to compel the production of certain relevant information. Requiring a time-consuming legal process to obtain identification data hampers the ability of law enforcement to respond quickly or to fully understand the scope of a potential spoofing campaign. Therefore, the law enforcement agencies recommend increasing the amount and level of detail that the platforms can easily provide to the authorities. 

Past attempts to address this problem have been piecemeal in nature and have proven ineffective to date. This fragmented approach has prevented any wholesale, systemic efforts to tighten rules or law enforcement protocols. Incremental adjustments have been made by individual platforms, which leaves an irregular landscape where motivated, corrupt actors may still be able to exploit weaknesses among the platforms. 

THE FEDERAL GOVERNMENT AND THE SOCIAL MEDIA PLATFORMS SHOULD TAKE ADDITIONAL ACTION 

Based on discussions with representatives of law enforcement, and considering the issues raised by the social media platforms during the hearing, the Committee believes that there are additional measures needed to address the growing threats posed by spoofing. Our recommendations fall into two broad categories. 

The first category is oriented at users of social media and is defensive in nature, such as teaching users how to be aware of the dangers posed by spoofers on social media and training them how to protect themselves through heightened vigilance, healthy skepticism, and adherence to basic principles of cyber- hygiene. 

1. Improve Awareness through a Public Service Announcement Campaign 

2. Develop Cyber-hygiene Training 

3. Strengthen Partnership Between Social Media Platforms and VSOs 

The second category is aimed at putting the social media platforms and law enforcement on the offensive and developing robust mechanisms to more effectively identify and quickly eliminate foreign-based spoofers. While the first category is likely to be less costly and easier to implement, the second category may ultimately prove to be more effective in bringing the threat under control. 

4. Improve Reviews of Accounts by Social Media Platforms 

5. Consider Legislative Reforms to Facilitate Sharing Information 

6. Increase Data Sharing on Fraudulent Accounts 

7. Improve Identity Verification and Geolocation Identification 

The recommendations in more detail are 

 Recommendations and solutions to the threat of internet spoofing fall into two broad categories. The first category is oriented at users of social media and is defensive in nature, such as teaching users how to be aware of the dangers posed by spoofers on social media and training them how to protect themselves through heightened vigilance, healthy skepticism, and adherence to basic principles of cyber-hygiene. The second category is aimed at putting the social media platforms and law enforcement on the offensive and developing robust mechanisms to more effectively identify and eliminate foreign-based spoofers quickly. While the first category is likely to be less costly and easier to implement, the second category may ultimately prove to be more effective in bringing the threat under control. 

Improve Awareness 

1. Improve Awareness through a Public Service Announcement Campaign--As noted by several Committee Members, FBI representatives, and testifying witnesses, the problem of spoofing is exacerbated by a general lack of public awareness of the issue and unfamiliarity with how to assess online content in order to evaluate authenticity. Warnings of the risk that social media content may not actually be from legitimate sources or be deliberately planted for exploitative purposes can be effectively and efficiently communicated through a public awareness campaign, such as through public service announcements (PSA). These public awareness campaigns can be distributed through the social media platforms themselves, or more comprehensively through other media outlets and agencies, such as VA. 

2. Develop Cyber-hygiene Training--VA and the Department of Defense should develop robust and comprehensive cyber-hygiene training. This would go beyond the basic information provided by public awareness campaigns. For example, agencies could provide training on best practices in protecting personal and financial information, how to read and review content online with an eye towards verification, and how to engage the platforms themselves when needed to remove spoofed accounts, fraudulent posts, or other deceptive content. 

3. Strengthen Partnerships Between Social Media Platforms and VSOs--A strong partnership could include an ongoing process for VSOs to contribute their expertise and familiarity to assist the social media platforms in their efforts to address spoofing. The social media platforms noted that it can be difficult to differentiate legitimate content from veterans or VSOs from spoofed content purporting to be from the veterans' community. There are ample resources within the broader veterans' community to help advise and consult with the platforms on such questions. 

Strengthen Prevention and Enforcement Methods 

4. Improve Reviews of Accounts by Social Media Platforms-- The social media platforms should implement stronger reviews of accounts that pose substantial risk of spoofing. This should include the adoption of industry-developed best practices involving accounts that control groups or pages with very large reach in order to closely scrutinize activity on these groups or pages to quickly identify potential patterns of suspicious behavior. Given the influence and reach, any such groups or pages that meet or exceed certain thresholds of followership should have their controlling accounts be officially verified by the social media platforms, and the details of such verification (ownership, geolocation, moderators, etc.) be publicly available for all users. 

5. Consider Legislative Reforms to Facilitate Sharing Information--Congress should consider appropriate modifications to the federal laws that currently limit the social media platforms' ability to freely share data with law enforcement agencies or other peer platforms in order to detect, prevent, or remove fraudulent or spoofed content in a timely and efficient manner. Federal law is murky on how the privacy rights of users intersect with law enforcement needs with respect to data or identification information in cases of potential illegal activity or fraud. The platforms have generally erred on the side of maintaining user privacy in the absence of a clear legal requirement to provide such data to law enforcement agencies. However, there are certain inconsistencies in the existing laws governing voluntary disclosures to law enforcement which contribute to challenges and delays. Congress could align the scope of voluntary disclosure of information to law enforcement under the respective provisions of Title II of ECPA to facilitate greater transparency and timely information sharing with law enforcement. This would essentially allow holders of electronic communications and records to voluntarily release the data associated with fraudulent, spoofed, or misappropriated accounts to law enforcement agencies and potentially also to their enforcement counterparts at peer platforms, when criminal activity or other imminent harm is reasonably suspected. However, any new legislation in this area or any change to the ECPA statute must be both narrow in scope and include strong safeguards to protect the personal privacy and civil rights concerns of users. 

6. Increase Data Sharing on Fraudulent Accounts--Social media platforms should improve their sharing of identified fraudulent and spoofed accounts with other platforms and law enforcement to the extent permissible under current statutes, both in terms of frequency of sharing and the scope of the data that is shared. Although ECPA protects underlying identifying information, there is other information about spoofed accounts that can still be shared. Increasing the scope and timeliness of shared information pertaining to accounts that have been identified, and likely removed as fraudulent or spoofed, would enhance cross-platform detection. Additionally, consistent protocols could be established around communication between the platforms and law enforcement, and amongst the platforms, to ensure that information is shared on a regular and timely basis, rather than only in response to crises or incidents. This sharing of information should be narrow in scope and include strong safeguards to protect the personal privacy and civil rights concerns of users. 

7. Improve Identity Verification and Geolocation Identification--Social media platforms should improve their verification of identities, affiliations, and geolocation for all accounts. This would create a consistent and more robust version of the verification and checkmark system that was previously employed in various permutations by Twitter and Facebook. This would make it more difficult for foreign actors to disguise or misrepresent their locations and consequently their identities). The geolocation and account ownership information should then be readily available to users and to law enforcement, to increase transparency and foreclose intentional concealment of where an account is based.

National Medical Stockpile

The ANAO Planning and Governance of COVID-19 Procurements to Increase the National Medical Stockpile report comments 

1. Since its emergence in late 2019, coronavirus disease 2019 (COVID-19) has become a global pandemic that is impacting on human health and national economies. From February 2020 the Australian Government commenced the introduction of a range of policies and measures in response to the emergence of COVID-19 that included: travel restrictions and international border control and quarantine arrangements; delivery of substantial economic stimulus, including financial support for affected individuals, businesses and communities; and support for essential services and procurement of critical medical supplies. 

2. The National Medical Stockpile (NMS) is a reserve of pharmaceuticals, vaccines, antidotes and personal protective equipment (PPE) for use during the national response to a public health emergency that could arise from natural causes or terrorist activities. It is meant to supplement state and territory supplies in a health emergency. Between 3 March and 1 May 2020 $3.23 billion in funding was provided to the Australian Government Department of Health (Health) to procure medical supplies, namely PPE and medical equipment, for the NMS. Procurement activity peaked in April 2020, with the last contract for NMS supplies prior to 31 August 2020 entered into on 14 August 2020. 

3. The Department of Industry, Science, Energy and Resources (DISER) began assisting Health with the COVID-19 NMS procurements on 2 March 2020. On 18 March 2020 the Acting Secretary of Health decided, under paragraph 2.6 of the Commonwealth Procurement Rules (CPRs), that the CPRs would not apply to the COVID-19 NMS procurements. Paragraph 2.6 allows the accountable authority to decide this in a range of circumstances, including to protect human health. 

Rationale for undertaking the audit 

4. The COVID-19 pandemic and the pace and scale of the Australian Government’s response impacts on the risk environment faced by the Australian public sector. This audit is one of five performance audits conducted under phase one of the ANAO’s multi-year strategy that will focus on the effective, efficient, economical and ethical delivery of the Australian Government’s response to the COVID-19 pandemic. 

5. A challenging procurement environment, as well as the decision to not apply the CPRs, created additional risks to the proper use of public resources and achievement of procurement outcomes for the COVID-19 NMS procurements. The Australian Parliament and public require assurance that the procurement requirement has been met through the planning and governance arrangements that Health and DISER established in conducting the procurements. 

Audit objective and criteria 

6. The audit examined whether the COVID-19 NMS procurement requirement was met through effective planning and governance arrangements. 

7. To form a conclusion against the audit objective, the following high level criteria were adopted: Was pre-pandemic procurement planning for the NMS effective? As part of the Australian Government’s COVID-19 response, was the planning and governance of the NMS procurements effective? Was the COVID-19 NMS procurement requirement for PPE and medical equipment met?  

Conclusion 

8. The COVID-19 NMS procurement requirement for PPE and medical equipment was met or exceeded. Elements of Health’s procurement planning for the NMS could be improved. 

9. Health’s pre-pandemic procurement planning for the NMS was partially effective. Procurement planning was partially risk-based. Agreement with states and territories about stockpiling responsibilities was not documented and stockpile information was not adequately shared. There were no protocols for emergency procurements. 

10. Health’s and DISER’s NMS procurement planning and governance arrangements in response to the COVID-19 pandemic were effective. Both entities had elements of a plan for meeting the requirement, established fit for purpose governance arrangements and considered risks. 

11. The COVID-19 NMS procurement requirement was not clearly specified for PPE, swabs and COVID-19 tests. Procured quantities for the NMS were approximately aligned with overall national health system demand estimates for all items where demand modelling was undertaken, suggesting the procurement requirement was met or exceeded. 

Supporting findings 

Pre-pandemic procurement planning for the National Medical Stockpile 

12. Health’s procurement planning for the NMS was partially risk-based. A strategic plan for the NMS did not consider procurement in detail, but did establish an overarching framework for key risks to be considered in management decisions, including procurement decisions. A Replenishment Plan set out procurement priorities that were focused on chemical, biological, radiological or nuclear (CBRN) threats and an influenza pandemic and did not address other potential health threats. Procurement planning documents did not provide a risk-based rationale for the quantity of PPE to be procured and held within the NMS and Health did not consider potential risks to PPE supply chain security during an emergency. 

13. NMS procurement planning was not adequately coordinated with the states and territories in light of the objective to ‘supplement’ and work ‘in concert’ with state and territory stockpiles. Health does not have a documented agreement with the states and territories about stockpiling and there was a lack of regular and systematic information sharing about stockpiles with the states and territories. 

14. Strategic planning for the NMS did not adequately prepare for emergency procurements. High level plans for responding to a disease occurrence do not provide specific guidance on conducting emergency NMS procurements and, despite the NMS’s core function as an emergency mechanism, Health had not developed specific protocols for conducting these procurements or for coordinating the multi-jurisdictional procurement response. 

Planning and governance of COVID-19 National Medical Stockpile procurements 

15. Health’s planning for the COVID-19 NMS procurements was fit for purpose. It did not develop a strategic or operational procurement plan but elements of a plan — such as definition of objectives, timeframes and procurement method — were incorporated in documentation. DISER’s operational planning for the procurement activities was also fit for purpose. It did not develop an overarching operational plan for its involvement but taskforces developed, used and shared process maps, templates and checklists to guide procurement activities. 

16. Health’s and DISER’s internal and cross-departmental governance arrangements for the COVID-19 NMS procurements were fit for purpose. Respective roles between Health and DISER were not documented but were broadly understood. Both departments used a flexible taskforce approach to manage the procurements, involved procurement advisory services and actively engaged executive management in decision-making. There was a process for managing conflicts of interest in both departments, however, a requirement for specific conflict of interest declarations for the NMS procurements was introduced late and incompletely adhered to. 

17. Health and DISER assessed and treated risks to the proper use and management of public resources in the COVID-19 NMS procurements and to procurement outcomes. Health did not conduct an overarching assessment of risk in relation to COVID-19 NMS procurement activity and risk treatments for individual procurements were not well documented. Both departments considered procurement risks in a number of their implementation activities. 

18. When conducting the COVID-19 NMS procurements, Health applied the CPRs appropriately. Health officials informed the delegate of the use of paragraph 10.3(b) of the CPRs when seeking approval to commit funds through limited tender and sought the approval of the Acting Secretary of Health to invoke paragraph 2.6 to not apply the CPRs to the procurements. No alternative procurement framework for the COVID-19 NMS procurements was specified by the Acting Secretary. The Acting Secretary revoked the application of paragraph 2.6 when it was no longer necessary. 

Meeting the COVID-19 National Medical Stockpile procurement requirement 

19. In formulating the NMS procurement requirement, demand estimates and supply chain issues were considered by Health and DISER. However, due to the dynamic situation and late and partial information about existing national stocks of PPE, only the ventilator procurement requirement was specified clearly. In the absence of a specified procurement requirement, Health and DISER officials understood the requirement was to procure as much PPE as possible, as quickly as possible. 

20. The NMS procurement requirement for invasive ventilators was exceeded. In the absence of a specific procurement target for PPE and swabs, the ANAO compared procurements of PPE and swabs to national health system demand estimates and found that the NMS procurement requirement for PPE and swabs was met, or exceeded once procurements by other actors including the states and territories are taken into account. The ANAO was unable to determine if the procurement requirement for COVID-19 tests was met due to no specified requirement or comparable demand estimates.

Exceptions

'From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization' by Ming-Sung Kuo in Richard Albert and Yaniv Roznai (eds), Constitutionalism Under Extreme Conditions: Law, Emergency, Exception (Springer, 2019) comments

 In this paper, I argue that rediscovering the role of responsibility vis-à-vis political judgment in constitutional ordering is pivotal to the constitutionalization of emergency powers amidst the normalization of the state of exception. I first identify two features of the liberal answer to the question of emergency powers: conceptually, it is premised on the normative duality of normalcy and exception; institutionally, it pivots on the identification of institutional sovereignty that judges the state of exception. I then explain why this paradigm falters with the blurring of normalcy and exception. Drawing on the role of ‘theatricality’ in Hannah Arendt’s political theory, I suggest that making the public ‘see’ the role of judgment in the current undeclared emergency regime underpin the re-constitutionalization of emergency powers. Recast in constitutional mindset, the judiciary is expected to act as the institutional catalyst for forming the public judgment on the ongoing state of emergency.

Identity Cards

Two perspectives on identity schemes ...

'Bank Identity: Banks, ID Cards, and the Emergence of a Financial Identification Society in Sweden' by Orsi Husz in (2018) 19(2) Enterprise and Society comments

Today, nearly the entire adult population in Sweden uses a digital BankID for more purposes than only financial ones. Issuing identity documents is commonly perceived as a task for state authorities, but in Swedish society banks have played a dominant role as identificators. The first contribution of this article is that it explains this unique emergence of bank identity and traces the historical roots of a financial identification society to the mid-1960s. Banks started issuing standardized identity cards as a complement to the new system of paying salaries and wages by direct deposit to checking accounts, and these cards eventually became quasi-official identity documents. The Swedish story thus contrasts the scholarship on identification and state control. By treating identity as both a socio-cultural category and a materialization of a technology of control, I argue that the formalization of official identity documents for everyday use was intertwined with the creation of new financial identities. The introduction and general distribution of ID cards were parts of a process whereby wage earners became financial consumers, and the banks transformed themselves into retail companies. My second contribution therefore relates to the scholarly narrative on the financialization of everyday life since the 1980s. While the mass move to financial identification in Sweden, highlighted in this article, certainly fits the content of this narrative, it questions its chronology.

Husz argues

When Swedes log in to the Swedish Social Insurance Agency’s website to request sickness or parental benefits, they have to use a so-called BankID, an electronic identity document issued by banks. How is it possible that the official proof of personal identity in basic civic issues is provided by a commercial bank? Today, seven million people, nearly the entire adult population in Sweden, have digital BankIDs. It is used not only for payments but also for online contact with public authorities such as the Tax Agency, the public healthcare system, and the municipal school system. Acting as parents or patients, why do people use identification granted in their capacity as bank consumers? The BankID was introduced in 2003 by a consortium of the largest banks, and it spread quickly. Electronic identification in Swedish society today is overwhelmingly dominated by the system offered by banks, and very few alternatives exist. It was only as late as 2011 that a governmental authority was created to supervise these systems.

Digital identification is a recent development, but the formalization of what could be called bank identity and the general use of official ID cards validated by banks have their roots back in the early 1960s. This was, as I will show in the article, a consequence of a new system of paying salaries and wages by direct deposit to checking accounts, introduced in the late 1950s and implemented on a large scale in the early 1960s. Workers, office clerks, shop assistants, and others became account holders at commercial banks and had to get used to paying by check, and thus to consuming banking services on a daily basis. The commercial banks—until then serving mainly the business and the very rich—also started selling a wide range of products to a broad public and marketing themselves as “department stores of finances.”3 At the same time, and as a result of this shift to retail banking, Swedish banks came to shoulder the responsibility of managing documented identities in society, which is usually associated with public authorities. Banks issued, validated, and distributed standardized ID cards to the general public.

The article describes, explains, and interprets this process in the twofold context of the history of identification, on the one hand, and the scholarship on the financialization of daily life, on the other. I ask how the validation of official individual identities came to be the specialty of banks in Swedish society, how this relates to conventional histories of identification, and what this says about a process described in recent literature as the creation of new financial subjects.

The article consists of three parts, followed by a conclusion. The first part deals with the above-mentioned research contexts and unpacks the relevance of my argument; the second part is concerned with the Swedish banks’ turn to a mass retailing of financial products and services; and the third and main part explores how this turn implied the banks’ engagement in the management of identification.

The study is based on archival and published sources from the banking sector, governmental and parliamentary committees, and the company AB ID-kort (ID Card Ltd.), established in 1968. While the official documents, as well as the material from banks and the Bankers’ Association helped me to track the institutional and legal changes and the creation of new financial and identificatory technologies, I also used general newspapers and house magazines from banks to access everyday practices and attitudes.

A Financial Identification Society

Commercial bodies and their role in identity management are absent from the historical literature on documented identity. Instead, this scholarship has been concerned almost exclusively with the activities of the state, as Edward Higgs points out in a recent essay.5 The history of identity documents is traced back to colonial and wartime administrations and crime control (for example, the use of fingerprints). John Torpey argues that the validation and production of legitimate identities, especially the passport (controlling people’s movement), have historically been a state monopoly. In his account on the history of the passport in the United States, Robertson connects the state’s predominance in documenting and controlling individual identities to a “documentary regime of verification,” which he claims emerged between the second half of the nineteenth century and the 1930s. According to him, and others, the modern technologies of identification based on new bureaucratic logics of objectivity and on an idea of a verifiable “official” and individual identity were developed and controlled by state authorities. It is only very recently, in a new digital regime, that Robertson detects “a move from the state as the primary vendor of the verification of individual identity.”

David Lyon, in his work on contemporary identification practices, also claims that the identity card is the manifestation of national governance by identification (and necessarily also by social sorting and exclusion). However, Lyon also points out the importance of corporate interests (for example, software companies) in the development of national ID card schemes, and introduces the idea of “card cartels” for identification systems in today’s digitalized world. He argues that while states “may still validate identity,” they are unable to act on their own but must “depend on the high-tech corporations [such as IBM] for the know-how, on softwares for the means of ‘managing’ identities and on international standards bodies […] for achieving interoperability.”

Edward Higgs, one of the few historians of identification interested in the role of commercial bodies, stresses the importance of historical changes in identity management, from state dominance to more dispersed and commercial identification systems in the last two decades of the twentieth century. This commercialization of identification was, however, parallel with a movement back to increased state interest in the management of identity control in the new millennium, as a part of counterterrorism and migration policies. In his comprehensive history of personal identification in England, Higgs includes the emergence of tokens of identification in the new mass consumer economy. He refers here to credit and debit cards backed up by signatures, and later by PIN codes, as new “tokens of identity.” He also highlights the role of new identification technologies introduced by commercial organizations in the recent past, for example, how digitalization made detailed consumer profiling possible.

The role of Swedish banks in managing not only strictly commercial but also official (or at least quasi-official) identities from as far back as the 1960s is important because similar examples are lacking in the history of identification. Also, the story of twentieth-century identification practices in Sweden—by either state authorities or commercial institutions—is yet untold. There are a few studies on identity documents in older historical periods (from the eighteenth and early nineteenth centuries) and historical work on the politics of privacy in the data age. However, these bodies of research and the historical studies of the early and well-developed Swedish system of national registration also stress the role of state authorities, along with that of the church in the early period. Moreover, a strong “state embrace” of the individual is generally seen as typical of Swedish twentieth-century history. This makes my findings even more intriguing.

So how can we understand the connection between banks and identification, and why is it important? Here, we have to consider the distinction, as also made by, for example, Lyon and Robertson, between identity and identification; or, in other words, between embedded (personal and collective) identity and documented official identity. Scholars of identification generally agree that embedded identity (related to family, community, commitment to a place) and documented identity (passport, ID cards) are intricately connected to each other; they not only depend on but also shape each other. Just like the passport has been interpreted in terms of the formation of national identities, it is possible to explore other identity devices in relation to social, cultural, or financial identities.

Now, personal identity literally certified by banks is easily interpreted as a powerful materialization of the birth of new financial subjects and the financialization of everyday life. Although the scope of my study does not allow me to access the self-perceptions of the new ID card holders or their sense of identity, I can highlight the historical connection between the bank identity cards and the creation of a large group of new financial consumers. The sources also reveal that the new identification practices were not unproblematic, as they collided with traditional perceptions of identity and with the cultural stigma of having to prove one’s identity. I will show how the banks attempted to eliminate the shame of identification and naturalized the everyday use of identity cards with reference to money.

The concept of financial identities or financial subjects is recurrently used within social studies of finance, especially in Foucauldian interpretations of the financialized world of the recent past. It highlights the fact that individuals are increasingly categorized in legal, political, and media discourses in terms of financially defined subject positions—and, as a consequence, also see themselves and act accordingly. Typical examples of such financially defined subject positions are the investor, for example, by means of the pension system or the educational system, the borrower on the housing market, or the consumer of banking products and services such as current accounts, bank cards, or insurance.

The financialization of everyday life, according to the growing literature on the concept, includes a predominance of such financial identities and their intrusion into all areas of life; in short, a new relationship between the self and finance. The narrative of financialization runs parallel to and is intertwined with that of neoliberalization and globalization, and is commonly dated to the past three decades.

In fact, several studies of identification and surveillance refer to Nikolas Rose’s concept of “control society,” which belongs to the same theoretical tradition as the works on financialized identity positions. Drawing on Gilles Deleuze and Michel Foucault, Rose describes a historical transition from societies of discipline—in which dominant institutions such as the school or the factory directly molded the conduct of large groups of people—to societies of control—in which the “conduct of the conduct” is done at a distance, not centralized but “dispersed and disorganized.” In a society of control, Rose argues in accordance with the theory of governmentality, individuals are identified and governed by means of their different activities of working and consuming. Rose (writing in the 1990s) emphasized that commercial forces often exercise this dispersed control in contemporary society.

In his study of credit markets, Gilles Laferté proposes two ideal typical concepts to characterize two fundamentally different types of economic exchanges: the older face-to-face economy, built on small-scale, shared economic affiliations and social networks, and the newer economic identification economy, consisting of “mediated, remote forms of exchange.” The economic identification economy relies on technologically advanced and standardized gathering of information on a very large number of individuals. Laferté’s main example is that of credit reports by credit bureaus having become a prerequisite for contemporary consumer credit.

To summarize, commercial engagement in identification is lacking in the historical research; and in those rare cases when commercial identification is discussed, it is explained with reference to the financialization of recent decades. Building on the insights from these scholars but also in important respects differing from their views, I argue that the history of the development of the Swedish bank identity is best described in terms a financial identification society. In this society, the banks developed a central position not only in everyday identity management for financial purposes but also in validating “official” identities in society. This happened with support from authorities (and not least with use of the national registration number), but not under state control. The process started as early as the 1960s. This contradicts conventional historical studies of identification and, in fact, also the work on financialization, as it reveals that a modern concept of financial identity materialized before the era of digitalization and financialization.

The article will show how something that started as a complementary tool for administering consumer finances eventually transformed older identification practices based on class/community/status/personal acquaintance into a general and nationally valid management of formalized individual identity. Swedish banks, already in the 1960s—thus prior to the digital age—became the main identificators in society, which, of course, reinforced the connection between personal identity and finance.

'‘Disaster citizenship’: an emerging framework for understanding the depth of digital citizenship in Pakistan' by  Ayesha Siddiqi in (2018) 26(2) Contemporary South Asia  157-174 comments

In recent years, the Pakistani state has made significant advances in formalising and universalising citizenship through the digitisation of citizenship numbers. The National Database and Registration Authority (NADRA) is at the forefront of this initiative, which has now covered 96% of Pakistan’s 180 million citizens. The state successfully used this digitisation of citizenship to reach out to its citizens in the aftermath of a large-scale flooding disaster in 2010 and 2011. The universal cash transfer programme instituted for disaster-affected households used citizenship numbers to identify and then provide ATM cards to those domiciled in the worst-affected regions.

 Siddiqi  states

This paper draws upon my fieldwork done in 2012–2013 in Lower Sindh and argues that while still in its infancy, a new form of ‘disaster citizenship’ is visible in southern Pakistan, which is driven partially by this digitisation of citizenship in the country. It explores the post-disaster political space where state actors and citizens came to interact with each other, and argues that these informal and unplanned interactions overlapped with formal policy to result in a new and emerging form of ‘disaster citizenship’ in the region.

This paper offers intimate insight into the state–citizen relationship, and how it evolves, in the aftermath of large-scale disasters. Using the case of Pakistan, and based on empirical evidence from the province of Sindh in the south of the country, it argues that contrary to received wisdom, a large-scale flooding disaster in the region did not result in a damaged ‘social contract’ between the state and the citizen (Pelling and Dill 2010). Rather, it demonstrates that the political space that opened in the aftermath of the disaster enabled a more progressive ‘disaster citizenship’ to emerge. The role of Pakistan’s social registry system and a formalised identity (ID) regime played a critical role in pushing this relationship along.

The ‘social contract’ in this paper refers to a tangible relationship between the state and its people consisting of two basic conditions: (i) a state that sees its citizens as its responsibility; (ii) citizens that demand state action not as passive recipients looking for favours but as an active right of citizenship. Citizenship is increasingly being understood as constitutive of both formal-legal rights and also of informal claims. Jayal’s work tells us that the former, legal-official recognition of citizenship, has been interpreted as an ‘affective notion’ of belonging and ID, or as entirely ‘instrumental’ to enable access to social goods, or even something completely different depending on the subject position of those seeking the formal recognition (Jayal 2013). Hence if even the thinnest description of citizenship holds such diverse meaning in different social groups and contexts, identifying and constructing informal citizenship is especially complex. Substantiated through social relations and a range of demands on state authorities, using intermediaries and a variety of moral positions, these ‘substantive’ conditions of citizenship create new kinds of rights. They are based on ‘exigencies of lived experience, outside of the normative and institutional definitions of the state and its legal codes’ (Holston 1998 ). The ways in which an unfolding climatic disaster impacts this substantive citizenship is the unique contribution of this paper. 

In the summer of 2010 and 2011, Pakistan was devastated by large-scale flooding of the Indus River. The floods of 2010 affected the entire country and in August of that year the UN declared that one-fifth of Pakistan’s entire landmass was under water (Masood and Drew 2010). In terms of people affected, the UN also estimated that it was the ‘greatest humanitarian crisis in recent history’. At over 20 million affected, the number of victims of this disaster was more than the Asian tsunami (2004), Kashmir earthquake (2005) and Haiti earthquake (2010) put together (Tweedie 2010 ). The floods the following year were limited in their geographical scope and primarily affected the province of Sindh. The scale of the disaster was still enormous and it affected over 5 million people. Based on empirical evidence from the ground, in the two years following these floods, this research demonstrates that the formal and informal processes implemented after a large-scale disaster resulted in a new and unique experience of citizenship in Pakistan. 

The flooding disaster in 2010 and 2011 was considerably more serious than previous climatic disasters, it was however not just the number of people affected by the devastation that made this a particularly interesting moment to study state–citizen relations. Rather, in a significant departure from previous ad hoc and sporadic state interventions, the Pakistani state provided universal disaster relief to its citizens through a cash transfer made out to all households domiciled in the disaster-affected region. This was made possible in large part due to an up-to-date social registry maintained by the National Database and Registration Authority (NADRA) in Pakistan. This relatively new intervention implemented through new processes made this an exciting time to study the changing social contract and evolving citizenship and how people in a country like Pakistan were interpreting it. 

Geographers working on natural disasters highlight the ‘transformative political space’ opened in the aftermath of a disaster. They illustrate that a disaster is able to serve as a ‘tipping point’, creating a moment for political change (Pelling and Dill 2010 ). Others argue that in politically turbulent parts of the world, disasters are ‘more frequently followed by political unrest than peace’ (LeBillion and Waizenegger 2007). While writing after Hurricane Katrina, an American scholar analyses the disaster as a moment when the state failed its citizens in the US. He argues that ‘when the levees broke, the contract of American citizenship failed’ and hundreds of thousands suffered in New Orleans (Ignatieff 2005). Disasters are therefore typically seen to be disruptive of the social contract (Warner 2013). After the large-scale flooding disaster that affected Pakistan in 2010 and 2011, international media outlets were reporting a similar story. They stated that the state had failed its citizens – not once but twice – in the aftermath of the disaster (BBC online 2011) ‘damaging’ the country’s ‘fragile democracy’ (The Guardian online 2010 ). 

I however argue in this paper that the disaster unleashed forces for ‘transformative’ change by opening political space for the post-disaster state and its citizens to interact with one another. I explain how and why the state reached out universally to all its citizens in affected areas, using disaster relief that it provided through a cash transfer distributed to all households using digitised ID cards. The widespread coverage of NADRA-issued ID cards has been an important instrument in this new phase in state–citizen relations. I demonstrate that both actors, the state and its citizens, interacted along official and unofficial lines after the flooding disaster to create an outcome that was able to push a more progressive form of ‘disaster citizenship’ along. In particular, this paper shows how an unprecedented state-led disaster intervention drive, interacted with an enabling political context to induce demands and encouraged citizens to demand more from their social contract. Substantively, this resulted in disaster relief being understood as an aspect of citizenship, or an informal right, in southern Pakistan.

Critical Infrastructure

The Critical Infrastructure Security Act 2018 (Cth) is meant to provide a framework for managing risks to national security relating to critical infrastructure, including by:

(a) improving the transparency of the ownership and operational control of critical infrastructure in Australia in order to better understand those risks; and 

(b) facilitating cooperation and collaboration between all levels of government, and regulators, owners and operators of critical infrastructure, in order to identify and manage those risks. 

That framework does not construe telecommunications as critical infrastructure, in contrast to much overseas planning in terms of  'critical information infrastructure'.

The framework centres on disclosure of ownership and control, reflecting recent anxieties regarding overseas ownership of major facilities. It consists of

 (a) the keeping of a register of information in relation to critical infrastructure assets (the register will not be 6 made public); 

(b) requiring certain entities relating to a critical 8 infrastructure asset to provide information in relation to the asset, and to notify if certain events occur in relation  to the asset; 

(c) allowing the Minister to require certain entities relating to a critical infrastructure asset to do, or refrain from doing, an act or thing if the Minister is satisfied that there is a risk of an act or omission that would be prejudicial to security; 

(d) allowing the Secretary to require certain entities relating to a critical infrastructure asset to provide certain  information or documents; 

(e) allowing the Secretary to undertake an assessment of a critical infrastructure asset to determine if there is a risk to national security relating to the asset.

Certain information obtained under, or relating to the operation of, the Act is 'protected information'. with restrictions on when a person may make a record of, use or disclose that information.Protected information is

(a) obtained by a person in the course of exercising powers, or performing duties or functions, under this Act; or 

(b) is the fact that the asset is declared under section 51 to be a  critical infrastructure asset; or 

(c) was information to which paragraph (a) or (b) applied and is obtained by a person by way of an authorised disclosure 21 under Division 3 of Part 4 or in accordance with section 46.

Civil penalty provisions of the Act may be enforced using civil penalty orders or injunctions, and enforceable undertakings may be accepted in relation to compliance with civil penalty provisions. The Regulatory Powers (Standard Provisions) Act 2014 (Cth) is applied for these purposes. Other provisions may be enforced by imposing a criminal penalty.

The Minister for Home Affairs  may privately declare a particular asset to be a critical  infrastructure asset so that the Act applies to it. A private declaration can only be made if there would be a risk to national  security if it were publicly known that the asset is critical  infrastructure that affects national security. Presumably many people in academia, the consulting sector and journalists will make correct inferences.

The Secretary of the Home Affairs Department must give the Minister reports, for presentation to the Parliament, on the operation of the Act. Do not expect, of course, that the reports will be particularly detailed.

Under section 9 an asset is a critical infrastructure asset if it is:

 (a) a critical electricity asset; or 

(b) a critical port; or 

(c) a critical water asset; or 

(d) a critical gas asset; or 

(e) an asset declared under section 51 to be a critical infrastructure asset; or 

(f) an asset prescribed by the rules for the purposes of s 9. 

An asset is a critical electricity asset if it is:

 (a) a network, system, or interconnector, for the transmission or  distribution of electricity to ultimately service at least  100,000 customers; or 

(b) an electricity generation station that is critical to ensuring the  security and reliability of electricity networks or electricity  systems in a State or Territory, in accordance with  subsection (2). 

Rules may prescribe  requirements for an electricity generation station to be critical to  ensuring the security and reliability of electricity networks or   electricity systems in a particular State or Territory.

An asset is a critical port if it is land that forms part of any of  specified security regulated ports:  Broome;  Adelaide;   Brisbane;   Cairns;  Christmas Island;  Dampier;  Darwin;  Eden;  Fremantle;  Geelong;  Gladstone;  Hay Point;  Hobart;  Melbourne;  Newcastle;  Port Botany;  Port Hedland;   Rockhampton;  Sydney Harbour; Townsville;

 An asset is a critical gas asset if it is any of the following:

 (a) a gas processing facility that has a capacity of at least 300  terajoules per day or any other capacity prescribed by the  rules;  

(b) a gas storage facility that has a maximum daily quantity of 75  terajoules per day or any other quantity prescribed by the  rules;  

(c) a network or system for the distribution of gas to ultimately  service at least 100,000 customers or any other number of  customers prescribed by the rules;  

(d) a gas transmission pipeline that is critical to ensuring the 24 security and reliability of a gas market, in accordance with  subsection (2).  

The rules may prescribe   (a) specified gas transmission pipelines that are critical to 30 ensuring the security and reliability of a gas market; or  (b) requirements for a gas transmission pipeline to be critical to  ensuring the security and reliability of a gas market