NSW Bugs

The NSW Ombudsman has released a periodic report [PDF] under section 49(1) of the Surveillance Devices Act 2007 (NSW) for the period ending 30 June 2013.

Under that Act NSW law enforcement agencies that are eligible to use audio, optical and other surveillance devices have formal reporting and record keeping obligations. The Act also provides for the safe keeping and destruction of information obtained from use of the devices. The Ombudsman is authorised to conduct inspections of the records to determine the extent of compliance by the agencies and their officers. That inspection covers the NSW Police Force, NSW Crime Commission, Police Integrity Commission and Independent Commission Against Corruption.

In reporting on the NSW Police Force the Ombudsman indicates that 453 surveillance device warrants and one retrieval warrant were issued during the reporting period. There was one emergency use of a surveillance device.

The majority of records are located at Police Prosecutions, Covert Applications Unit. These include applications, warrants, s.51 notices and s.44 reports. In relation to the protected information received as a result of surveillance device warrants this information is kept with the officer responsible for the warrants at particular operational commands or local area commands as the case may be. The law enforcement officer responsible for the warrant is responsible for recording the use, communication or publication of protected information obtained under their warrant.

Additional inspections were carried out at Albury, Wagga  and Monaro Local Area Commands. Inspections were also conducted at State Crime Command operational squads: Firearms and Organised Crime Squad, Robbery and Serious Crime Squad, and Organised Crime (Targeting) Squad.

Under section 17  of the Act all applications for a surveillance device warrant were made to eligible Judges. No applications were made to eligible Magistrates in the case of applications for a surveillance device authorising the use of a tracking device only. There were 14 remote application warrants under section 18 made, all notified to the Attorney General and with affidavits  provided to the issuing judicial officer within the legislative timeframe. Eighteen warrants were varied and/or extended under section 22 during the reporting period.  There were 58 revocations under section 23 during the reporting period.

Section 24 (2)(a) requires that a surveillance device which is no longer needed is to be discontinued as soon as practicable. The NSW Police Force uses a Notification of Discontinuation form to record such action. Section 24 (2)(b) further requires that when an application for discontinuation is made, an application is also made for the revocation of the warrant under section 23. While the Act requires that a surveillance device be discontinued as soon as practical after the chief officer of the law enforcement agency is satisfied that the use of the device is no longer necessary, there is no time limit specified for making an application for revocation of the warrant.

The Ombudsman comments that

as an application for a revocation warrant can take several days to process, we hold the view that it is not unreasonable that an application for revocation is not made for any warrant which will in any case expire within 5 days of the use of the surveillance device being discontinued. Our inspections identified [one] warrant which did not comply with the above because the warrant had not been revoked ... We raised this exception with the Commissioner following the inspection and we were advised this instance was a marked exception to the compliance practices of the Covert Applications Unit, highlighted by the fact it was the only instance in 509 files in which this occurred. 

 One application was made and granted for a retrieval warrant under section 25.  No remote applications were made for retrieval warrants under section 26.  Section 31 provides for emergency use of surveillance devices where there is a  threat of serious personal violence or substantial property damage. There was no emergency use  under that section. Section 33 deals with 'approval after us'e of surveillance device without warrant or under emergency authorisation. There was one emergency use  under that section.

The Ombudsman comments that the tracking device under Warrant SD13/0175 was

installed and activated at 12.40am on 3 April 2013 and deactivated and removed at 11pm on 12 June 2013. The warrant expired at 4.15pm on 10 June 2013. The device was not able to be retrieved immediately after the expiry of the warrant due to operational reasons and was therefore retrieved at the earliest opportunity, being 12 June. The information in the s.44 report for this warrant indicates that data was still being received from the device between the expiry of the warrant at 4.15pm on 10 June and its deactivation at 11pm on 12 June. Also, it indicates the tracking device was used to determine its geographical location after the expiry of the warrant to enable the deactivation and retrieval to occur Information gathered from a device is stored in electronic files and a technical coordinator checks the stored information against the terms (period) of the warrant before releasing the information to operational police. Technical operatives only release information collected within the period of the warrant. However, data from a device may be used to determine its geographical location to enable retrieval of the device. We understand the situation which arose in relation to this warrant may reflect standard practice used by the NSW Police Force technical operatives and if so would breach Section 9 of the Surveillance Devices Act 2007. While a device may be retrieved beyond the expiry date of the warrant it is not appropriate for data to continue to be recorded beyond that time. 

The Ombudsman continues -

Section 21 (4) of the Act states: If a surveillance device remains on or in premises or a vehicle after the expiry of the surveillance device warrant authorising its installation, use and maintenance, the warrant is taken also to authorise, for the period of 10 days after that expiry, any action to be taken in respect of the retrieval of the device that would be authorised if the surveillance device warrant were a retrieval warrant. Section 29 specifies the action that is authorised to be taken by a retrieval warrant. Section 29 (2) in respect of what a retrieval warrant authorises states: The warrant also authorises the use of the surveillance device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment. We asked the Commissioner for further information about this issue and he outlined the circumstances in which it may not be possible to remotely deactivate a device which means it continues recording past the expiry of the warrant. The Commissioner also advised that any information inadvertently recorded outside the terms of a warrant, because either a device could not be remotely deactivated, or was used in order to locate it, is not provided to the LEO (Investigator) and is destroyed. The practical issues associated with deactivation and retrieval of surveillance devices are clear and the Act has made provision for certain circumstances by authorising a 10 day window period for retrieval, and for the use of retrieval warrants. Nevertheless the practice outlined in the Commissioner’s response breaches the legislative provisions for retrieval of devices. If for some reason it is not possible to retrieve a device within the warrant time, or the period of 10 days thereafter, then a retrieval warrant should be sought on all occasions. The use of a surveillance device beyond the expiry of the warrant, within the 10 day period or by virtue of a retrieval warrant, may be used solely for the purposes of location and retrieval of the device or equipment.

Section  44 requires a report to be furnished to the eligible Judge, or eligible Magistrate and to the Attorney General within the time frame specified in the warrant. The maximum penalty for failure to comply with Sections 44 (1),(2) and (6) is 20 penalty units or imprisonment for a term of 12 months, or both. The Ombudsman comments -

In our six monthly report for the inspection period ending December 2012 we noted the significant number of warrant files which did not contain copies of s.44 reports. New procedures were introduced by the NSW Police Force to address this issue and staff from the Covert Applications Section has made a concerted effort to follow up overdue reports. This has resulted in most of these reports being provided to the Attorney-General and eligible Judge. However, in the first half of this current reporting period the provision of reports to both the Attorney General and the Eligible Judge remained problematic. Based on the improvements noted to date, we anticipate the procedures adopted by NSW Police Force in response to our December 2012 report will see this addressed across the upcoming inspection period, which we will report on after December 2013. ... Seventy two (72) warrants had not been reported to the either the eligible Judge or the Attorney General following the expiry of the warrant, as required . This number has decreased from 276 exceptions identified in our last report. • Seventy seven (77) warrants had not been reported to the either the eligible Judge and the Attorney General or both, following the expiry of the warrant as required. The standard number of days is 60 days. While there have been some improvements in relation to reporting to the Attorney General and Eligible Judge, the number of exceptions identified in this report remains unacceptably high. Accordingly the Commissioner must better ensure all relevant officers provide their reports in accordance with the Act and within the statutory timeframe.

The Ombudsman makes several recommendations

1. The current practice of the NSW Police Force recording information outside the terms of a warrant cease immediately. The use of a surveillance device after expiry of the warrant be used solely for the purposes of location and retrieval of the device or equipment. If the device cannot be located and retrieved within the warrant period or the window period of days after the expiry of the warrant, then a retrieval warrant must be sought to enable the use of the device to determine its location.

2. The Commissioner continue to have staff address the failure of officers to provide s.44 reports to the Attorney General and/or Eligible Judge as required by the Act and within the statutory timeframe. 

In reporting on the NSW Crime Commission the Ombudsman notes that

during the reporting period 82 surveillance device files were inspected, all applications for warrants were granted. We were satisfied that the NSW Crime Commission had complied with its obligations under the Act with only one exception identified, as outlined below.

During the reporting period the Independent Commission Against Corruption did not apply for any surveillance device warrants. Six surveillance device warrants  were sought by and granted to the Police Integrity Commission. All applications were made to eligible Judges.

Facilitation and Forfeiture

With reference to the recent item on delation in the Australian Public Service I note 'Lance Armstrong’s Positive, if Reluctant, Step in a Sport’s Purification' by Juliet Macur in the latest NY Times

Last summer, Lance Armstrong sat a few feet from me and said he would never “rat out” his friends by publicly revealing who had helped him dope and who had known about his doping. Not a chance. No way. The last thing he would ever do.

He simply said that “everybody” around him had known about his drug use, and that snitching on those closest to him would be a violation of his duty to be loyal to those who had been loyal to him.

If that was true — and, if the past is any indication, one can never be sure of the truth when talking to Armstrong — it must have been painful for him to turn on those friends late last year when he answered questions about his doping as part of a lawsuit.

Armstrong settled the suit, which was brought by an insurance company seeking to recover $3 million in bonuses it had paid him for winning three Tour de France titles. But before settling, he reluctantly submitted answers to 16 questions about his doping, and those answers became public Wednesday as part of another lawsuit in which Armstrong is a defendant.

In documents released as part of a whistleblower lawsuit, Lance Armstrong reveals for the first time that several key members of his cycling team knew or aided him in doping.

In those answers, first reported by USA Today, Armstrong did exactly what he told me he would never do: He named some names.

A sampling: Johan Bruyneel, his longtime team manager; Chris Carmichael, the coach who made a name for himself as Armstrong’s adviser; Michele Ferrari, Pedro Celaya, Luis Garcia del Moral — three doctors who worked either with Armstrong personally or for his United States Postal Service team; Pepe Martí, a former trainer; and Thom Weisel, who supported the team financially.

The Victorian Law Reform Commission's The Forfeiture Rule: Report comments

 The forfeiture rule is a common law rule of public policy. It is an expression of the fundamental principle that crime should not pay, and it conveys the community’s strongest disapproval of the act of homicide. The rule disentitles an offender from benefits that, in normal circumstances, they would have received on the deceased person’s death. It is not a punishment but it is a significant consequence that, in most cases, should not be disturbed. 

At common law, the rule is hard and fast. If the rule applies, it applies without regard to the features of the particular homicide. While it rightly applies without exception to the offence of murder, the inflexible application of the rule in every other homicide is out of step with developments in the criminal law. Unlawful killings continue to attract the most severe penalties, but a range of substantive offences and sentencing options has emerged in recognition of the breadth of circumstances in which a death can occur. 

In Australia as well as overseas, concern has been expressed about the harsh effects that the forfeiture rule can have. A driver of a car who causes an accident that kills their partner because of a momentary lapse in concentration is unable to receive anything the partner left them by will. A person who, as part of a suicide pact, assists a terminally ill loved one to commit suicide and then fails in their own suicide attempt, loses the right to the deceased person’s interest in the house they bought together. An innocent child of an offender is unlikely to inherit the property that the offender forfeited upon killing the child’s grandparents. 

The response in some other jurisdictions has been to introduce legislation that either excludes particular homicides from the operation of the rule or gives the courts a discretion to modify the effect of the rule on a case-by-case basis. 

The Commission has concluded that Victoria needs a Forfeiture Act that does both. It has reached this conclusion after consulting with members of the public, community organisations, legal practitioners, judges, academics, and organisations with valuable experience in administering estates. I thank those who contributed for their time and insights.

The Commission's Terms of reference were

to review the common law rule of forfeiture and the circumstances in which it should no longer be appropriate for a person who has killed another person to benefit from that death, including by way of survivorship or as a beneficiary under a will or under intestacy rules. The Commission should consider existing exceptions to the forfeiture rule, such as where a person is found not guilty of a killing because of mental impairment. 

The Commission should make recommendations on the need for legislative or other reform in Victoria to clarify when and/or how the forfeiture rule should be applied, or to replace the common law. 

If legislative reform is recommended, the Commission should propose specific legislative mechanisms for giving effect to these recommendations. The Commission should consider judicial approaches and legislative developments in both Australian and overseas jurisdictions.

The Commission comments

On 29 October 2013, the Attorney-General asked the Victorian Law Reform Commission to review the common law rule of forfeiture. The forfeiture rule prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It is an unwritten rule of public policy enforced by the courts. It has no statutory basis yet overrides the words of a will, entitlements provided in legislation, and legally binding agreements to which the deceased person was a party. 

The rule applies where the court is satisfied, in civil proceedings, that the person was responsible for an unlawful killing. A person acquitted in criminal proceedings, or not prosecuted for a criminal offence at all, may still be precluded from obtaining a benefit. The only exception in Victoria is where the person is not guilty because of mental impairment. Emerging in the late 19th century from common law doctrines that stripped murderers and other felons of their property, the rule remains relevant today.  It conveys the community’s strongest condemnation of the act of unlawfully taking another human life. 

The rule is not applied often, as it is directed to circumstances where the person responsible for the death stands to benefit from the deceased person’s estate or otherwise as a result of their close relationship with the deceased person. However, of the 85 homicides in Victoria last year, 27 (33 per cent) were committed by a family member.  It is likely that in many of these cases the forfeiture rule prevented the person responsible from obtaining a benefit. 

Need for reform 

Although the public policy is sound, the rule requires reform for two reasons: clarity and fairness. The scope of the rule as it applies in Victoria is unclear. There is no doubt that it applies to murder, but the reach of the rule to all forms of unlawful killing, including inadvertent and involuntary acts, is unsettled. Where it does apply, the effect that the rule has on the subsequent distribution of forfeited benefits is uncertain. 

The rule can operate unfairly because it is applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. This is at odds with changes in community attitudes, as reflected in the greater range of criminal offences and sentence options today compared to when the rule was first articulated. 

The application of the forfeiture rule can also have unfair consequences for third parties as it can affect their potential rights to take a forfeited benefit. Those affected may include alternative beneficiaries named in a will, other beneficiaries of the deceased person’s estate, the innocent descendants of the unlawful killer, and any person who co-owns property with the unlawful killer and the deceased person as joint tenants. 

Legislative responses in other jurisdictions 

Responding to similar concerns, other jurisdictions have introduced legislation to replace or augment the operation of the common law rule. New Zealand’s Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) codifies the rule. It sets out the homicides to which the rule applies, excises those to which it does not apply, and specifies its effect on the distribution of the benefits to which the person would have been entitled. 

The United Kingdom has taken a minimalist approach. The Forfeiture Act 1982 (UK) (‘the UK Act’) leaves the scope and effect of the rule at common law intact, but gives the court a discretion to modify its effect if required by the justice of the case. The Australian Capital Territory and New South Wales subsequently introduced legislation that is closely modelled on the UK Act: the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’). 

The key difference between the three statutes is that the NSW Act was amended in 2005 to give the court a discretion to apply the rule to a person who has been found not guilty by reason of mental illness. There have been no recorded applications under the ACT Act to modify the effect of the rule. Five such applications have been made under the NSW Act, and a further three to apply the rule to a person found not guilty of an unlawful killing because of a mental illness. All applications under the NSW Act have been successful. However, most cases concerning the forfeiture rule are not made under the Forfeiture Act but involve applications seeking clarification of the effect of the rule and a determination as to where the offender’s interest is to be redirected. 

Proposed Forfeiture Act 

The Commission released a consultation paper and sought submissions on possible options for reform, based on the approaches illustrated in the NZ, UK, ACT and NSW Acts. A recurring theme in submissions and consultations was that legislative reform is needed, to provide certainty about the scope and effect of the rule and to overcome concerns about the lack of regard to the offender’s moral culpability. 

The Commission concluded that Victoria should introduce a Forfeiture Act that draws both from the reforms in New Zealand that codified the rule in order to create greater certainty and from the reforms in New South Wales and elsewhere that introduced a discretion to ensure greater fairness in the application of the rule. The proposed Forfeiture Act would specify the unlawful killings to which the rule applies and, either directly or by consequential amendment to other legislation, clarify its effect. To overcome concerns about the harsh effects of the rule, certain offences would be excluded from its operation. In addition, the court would have a discretion, on application, to modify the effect of the rule on a case-by-case basis where required by the justice of the case. 

Scope of the rule 

The determining factor for the Commission in defining the scope of the rule for the purposes of the proposed Forfeiture Act is the moral culpability of the person responsible for the unlawful killing. For clarity, the Commission recommends establishing a nexus between the unlawful killings to which the rule applies and murder and other indictable homicide offences under the Crimes Act 1958 (Vic). In the interests of justice, the Commission recommends excluding from the scope of the rule a small number of homicide offences where any perpetrator is likely to be considered to have low moral culpability and the offence does not warrant a bar on the offender taking a benefit from the deceased person. These are: • dangerous driving causing death • manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact • infanticide. 

These offences were identified in submissions and consultations and have been excluded from the rule in other jurisdictions. Motor manslaughter is excluded at common law from the operation of the rule in the United Kingdom, and the NZ Act excludes killings caused by negligent acts or omissions, killings in pursuance of a suicide pact and infanticide. Given the nature of each of these offences and the low moral culpability of the offenders, any application to modify the effect of the rule in the circumstances of these offences would be likely to succeed. The exclusion of these offences will therefore create greater certainty and will reduce costs to the estate resulting from unnecessary litigation. 

Judicial discretion 

Under provisions similar to those in the UK, ACT and NSW Acts, the court in Victoria would have the discretion to modify the effect of the rule as required by the justice of the case. However, unlike the equivalent legislation, the proposed Forfeiture Act would expressly direct the court to consider the moral culpability of the person responsible for the unlawful killing and set out the evidence to which it should have regard. An interested person—who could be the person responsible, the executor or administrator of the deceased person’s estate, or any other person who in the opinion of the court has an interest in the matter—would be able to make an application for a forfeiture modification order. The procedural details of the scheme would be modelled on the UK, ACT and NSW Acts. 

Unlike the NSW Act, however, the proposed Forfeiture Act would not empower the court to extend the scope of the rule beyond the limits of the common law to persons who have been found not guilty by reason of mental impairment. The Commission does not consider that the rule should apply to a person who is not morally culpable for the unlawful killing. 

Effect of the rule 

The deceased person may leave a will that appoints the person who is later responsible for their death as executor. If the deceased person does not leave a will, the court usually appoints a person who is a major beneficiary to administer the estate. The Commission recommends that the proposed Forfeiture Act should clearly preclude a person who is responsible for the death from taking up an appointment either as executor or administrator. This would be achieved by deeming them to have died before the deceased person. As the person’s responsibility for the death may not be established until some time after the death, the Commission also recommends that the court be given an express power to pass over a person who applies for probate or administration where there are reasonable grounds for believing that they committed an offence related to the deceased person’s death. 

The effect of the rule on the entitlements of innocent beneficiaries and third parties would also be clarified. In some circumstances, another beneficiary under a will, or a descendant of an offender, may stand to gain a share of the estate but only if the offender dies before or shortly after the deceased person. Even though they are innocent of any wrongdoing, they are unable to take a share if the offender is alive but precluded by the rule from inheriting. This will be the case even if it is likely that the deceased person would have wanted them to inherit or if they were the deceased person’s closest living relative. To overcome this problem the Commission recommends deeming the offender to have predeceased the deceased person. 

The Commission also recommends that a person who is responsible for the death of a person should be disentitled from making an application for family provision in order to obtain a larger share of the deceased person’s estate. 

If the deceased person and the offender owned property as joint tenants, perhaps in conjunction with one or more other people, the rule has consequences for the beneficiaries of the deceased person and any innocent joint tenants. In normal circumstances, the deceased person’s interest in the property would vest in the surviving joint tenant or tenants in accordance with the law of survivorship. 

Where one surviving joint tenant is responsible for the death of another, courts have taken different approaches to determining the impact of the rule. The favoured approach has been to deem that the person responsible for the death holds the deceased person’s share on constructive trust for the deceased person’s estate. The Commission recommends that the interest of the person responsible for the death should be severed at the time of the death. This is clearer, simpler and fairer. These clarifications would make it easier for an executor or administrator to distribute the deceased person’s estate and reduce the associated legal costs. If the outcome is unfair in any particular circumstances, the court could, on application, modify the effect of the rule.

The report features the following Recommendations

1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the common law rule of forfeiture and provides for the Supreme Court, on application, to modify the effect of the rule if the justice of the case requires it. 

2 The purpose of the Forfeiture Act should be set out in the legislation and include: (a) to reinforce the common law rule of public policy that a person who has unlawfully killed another person cannot acquire a benefit in consequence of the killing and, in so doing, to: (i) manifest the community’s denunciation of unlawful killing (ii) deter persons from unlawfully killing others for financial gain (b) to modify the application of the rule to exclude offences where justice requires (c) to provide for the effect of the rule to be modified if the justice of the case requires it in view of an offender’s moral culpability and responsibility for the offence (d) to codify the effect of the rule on rights of succession. 

3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic). 

4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of: (a) dangerous driving causing death (b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or (c) infanticide. 

5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained. 

6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material, the justice of the case requires the effect of the rule to be modified. 

7 In determining the moral culpability of the offender, the Supreme Court should have regard to: (a) findings of fact by the sentencing judge (b) findings by the Coroner (c) victim impact statements presented at criminal proceedings for the offence (d) submissions on interests of victims (e) the mental state of the offender at the time of the offence, and (f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability. 

8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit. 

9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order. 

10 An ‘interested person’ should mean: (a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf (b) the executor or administrator of a deceased person’s estate, or (c) any other person who in the opinion of the Court has an interest in the matter. 

11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include: (a) gifts to the offender made by the will of the deceased person (b) entitlements on intestacy (c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic) (d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person. 

12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order. 

13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it. 

14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if: (a) the offender is pardoned (b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made. 

15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation—subject to the terms on which the Court revokes the order, and (b) in the case of a variation—subject to modifications made by the varied order. 

16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person (b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit— within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned (c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate (d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with. 

17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period (b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave. 

18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing. 

19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW). 

20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person. 

21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons. 

22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that: (a) where a will contains a devise or bequest to a person who: (i) disclaims it, or (ii) has been precluded by the common law rule of forfeiture from acquiring it the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death. (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule 

23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that: (a) for the purposes of the distribution of an intestate’s residuary estate, a person who: (i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or (ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule. 

24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate. 

25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows: (a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares (b) where there were more than two joint proprietors, as if: (i) the offender holds their interest as a tenant in common (ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship (iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists (iv) as between the innocent joint proprietors, a joint tenancy exists. 

26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately. 

27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.

NZ Privacy Commissioner report on Veda

In New Zealand the Privacy Commissioner is underwhelmed by the practice of major consumer credit rating service Veda Advantage, the Australian-based business that is the successor to Baycorp Advantage, has attracted substantial criticism over many years and is currently facing criticism over free/charged access by consumers to their credit information. In 2012 Veda boasted that it had 15 million records with credit data on 16.5 million credit active individuals and 4.4 million businesses.

The Commissioner's Report by the Privacy Commissioner into Veda Advantage’s charge for urgent requests for personal information [PDF] last month states -

The Privacy Commissioner has conducted an own motion investigation into Veda Advantage’s charge for urgent requests by consumers for access to their own credit information.

The investigation has concluded that Veda’s current charge of $51.95 for urgent requests is unreasonable. Veda is not legally entitled to charge for some of the aspects of the process that make up its charges. The only aspect that can be charged for is the actual cost of making the information available to the individual – that is copying or formatting; and for delivering the information to the consumer.

The Commissioner’s view is that a reasonable charge would be nominal and that a flat rate at such a high level is unreasonable and therefore unlawful.

The Commissioner has sought undertakings from Veda:

• that Veda will only charge for the actual cost of putting the requested information into a format ready for delivery and the actual cost of the delivery of information to the requester; and 

• that Veda will cease charging for other aspects of processing urgent requests.

At the date of publishing this report, Veda had not provided the Commissioner with the assurances sought. Veda disagrees with our interpretation of what the law permits. The Commissioner is now considering what further action to take. That action could take the form of either amending the Credit Reporting Privacy Code, or referring the case to the Director of Human Rights Proceedings for him to consider whether to file proceedings against Veda in the Human Rights Review Tribunal or both.

The first step is to publish this report and findings in order to inform consumers about their rights. While these matters are resolved, consumers may wish to seek free access to their credit report on a regular basis to reduce the risk that they will be put in a position of having to make an urgent request.

This investigation has only been against Veda Advantage. We have not yet investigated other credit reporters’ practices. The Commissioner is considering whether to do so.

The report indicates -

An individual complaint was resolved, but we then undertook an own motion investigation.

We received a complaint that Veda Advantage Ltd  was charging too much for requests by people for a copy of their own credit information, when people wanted the credit information urgently.

The complainant refused to pay for an urgent report and instead received a free credit report, though not as early as he wanted or thought was reasonable. As he had not paid for an urgent report, he could not demonstrate that he had suffered any harm or loss as a result of Veda’s actions. In terms of the law there was therefore no interference with his privacy, and we closed the individual complaint.

However, this did not deal with our concerns that the standard charge for urgent requests was excessive. We therefore commenced an own motion investigation under section 69(2) of the Privacy Act. ... If people want access to their credit information urgently, they have no choice but to pay $51.95.

We note that people making urgent requests for their credit information may be doing so because they have a pressing issue regarding their credit, and accordingly are in a relatively vulnerable position. They may not have “twenty days to spare”.

ACCC Data Breach

The Australian Competition & Consumer Commission has reacted swiftly through the following media release -

The ACCC has today become aware of a breach of personal data collected from some of its websites. 

The affected websites are Recalls Australia, Product Safety Australia, SCAMwatch and the ACCC Public Registers website. 

The email addresses of some subscribers to the ACCC’s information alert services were inadvertently made accessible online. 

They were not indexed by search engines or linked from a web page on our sites. They could only be found if specific URLs were tried. 

The ACCC resolved this issue as soon as it became of aware of it to prevent further access to the email addresses.  

The ACCC is investigating how this issue occurred and is reporting this breach to the Office of Australian Information Commissioner. 

It is not yet clear to the ACCC how many users have been affected or how long this has been an issue. 

The ACCC takes the issue of privacy, including any breaches, very seriously and apologises to affected users. 

The ACCC has no further comment at this time.

It is refreshing contrast to belated responses by Telstra and other large organisations noted elsewhere in this blog.

Justification

'Killing for Your Dog' (University of Denver Legal Studies Research Paper No. 14-14) by Justin F. Marceau comments

Legal fields as divergent as family law, torts, contracts, and trusts have each, to varying degrees, addressed the unique legal status of pets. The rights and obligations of pet owners are a topic of increasing legal interest. Even the criminal law has grappled with the uniqueness of animals to a limited extent by criminalizing animal abuse. Legal developments such as these tend to ameliorate the anachronistic view that animals are merely property. However, substantial pockets of the law have not yet grappled with the unique status of animals as something more than property but, perhaps, less than human. 

This Article is the first to analyze the operation of the criminal defenses — the doctrines of exculpation — for persons who use serious, and even lethal, force in defense of their pets. By exploring the intersection of criminal defenses and the status of animals, there is much to be learned about the ambiguities in our common law doctrines of exculpation and the status of animals in America. The Article is less an argument for greater animal rights (or increased violence) and more a call to understand how the law’s current treatment of pets and pet owners is discordant with our social values and in need of reassessment.

NSA

'The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism' by Peter Margulies in Fordham Law Review comments

NSA surveillance abroad has spurred fresh debate about extraterritorial application of the International Covenant on Civil and Political Rights (ICCPR), which in Article 17 bars “arbitrary or unlawful interference” with individual privacy. The U.S. asserts that the ICCPR does not apply extraterritorially. To support this position, the U.S. relies on the language of Article 2(1) limiting a state’s duty to individuals “within its territory and subject to its jurisdiction.” Many international tribunals and scholars reject the U.S. stance, opting instead for a sweeping view of the ICCPR’s reach that requires a state to “respect” and “ensure” rights within its territory and anywhere it has “effective control” of either territory or persons. President Obama’s speech proclaiming that “all persons should be treated with dignity and respect” and enjoy “legitimate privacy interests in the handling of their personal information” has raised the stakes in the surveillance debate. 

This Article takes a middle way: while the U.S. has an extraterritorial duty to “respect” ICCPR rights, the tailored surveillance engaged in by the U.S. pursuant to judicial authorization and congressional oversight does not violate Article 17’s prohibition on arbitrary interference. Despite differences in tone and emphasis, decisions of the European Court of Human Rights (ECHR) like Weber v. Germany do not diverge significantly from U.S. law, holding that statutes citing national security as a basis for surveillance have adequately informed the public and recognizing that notifying targets of surveillance would undermine government efforts. Where Europe and the U.S. part ways, the complementarity principle provides a measure of deference to the U.S., bolstered by the law of armed conflict and Security Council resolutions that require global cooperation against terrorism. The deference prompted by complementarity allows states to practice what I call procedural pluralism: flexibility in the procedural safeguards the state chooses, as long as those safeguards provide meaningful constraints on government. 

Although U.S. surveillance abroad complies with Article 17 of the ICCPR, reforms beyond those specifically suggested by President Obama would seal the deal. An institutional public advocate to counter government arguments in court would enhance the legitimacy of U.S. surveillance, even more than the panel of lawyers recommended by the President. Minimization of irrelevant communications by non-U.S. persons after less than five years would also reinforce the United States’ case for compliance with Article 17. These reforms, like the candor in President Obama’s speech, would allow the U.S. to pivot from following to leading international law.

Marmor on Privacy

'What Is the Right to Privacy?' by Andrei Marmor comments

 A philosophical account of the right to privacy should explain what is the distinct interest that the right is there to protect, what it takes to secure it, and what would count as a violation of the right. In this paper I argue that the right to privacy is grounded on people’s interest in having a reasonable measure of control over ways in which they present themselves (and what is theirs) to others; I argue that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways which unjustifiably diminish one's ability to control how one presents herself to others. An account of the right to privacy should also explain, however, what makes it the case that people have wildly differing views about privacy and about what counts as a violation of the right. The paper aims to answer some of those questions as well.

The right to privacy is a curious kind of right. Most people think that we have a general right to privacy. But when you look at the kind of issues that lawyers and philosophers label as concerns about privacy, you see widely differing views about the scope of the right and the kind of cases that fall under its purview. Consequently, it has become difficult to articulate the underlying interest that the right to privacy is there to protect – so much so that some philosophers came to doubt that there is any underlying interest protected by it. According to Judith Thomson, for example, privacy is a cluster of derivative rights, some of them derived from rights to own or use your property, others from the right to your person or your right to decide what to do with your body, and so on. Thomson’s position starts from a sound observation, and I will begin by explaining why. The conclusion I will reach, however, is very different. I will argue that there is a general right to privacy grounded on people’s interest in having a reasonable measure of control over the ways in which they can present themselves (and what is theirs) to others. The right to privacy is important, I will argue, but narrower in scope, and fuzzier in its boundaries, than it is commonly understood.

Marmor argues

The right to privacy is there to protect our interest in having a reasonable measure of control over ways in which we present ourselves to others. The protection of this interest requires the securing of a reasonably predictable environment about the flow of information and the likely consequences of our conduct in the relevant types of contexts. So what would count as a violation of a right to privacy? The answer is that your right to privacy is violated when somebody manipulates, without adequate justification, the relevant environment in ways that significantly diminish your ability to control what aspects of yourself you reveal to others. One typical case is this: you assume, and have good reason to assume, that by doing X you reveal Y to A; that is how things normally work. So you can choose, on the basis of this assumption, whether to X or not. Now somebody would clearly violate your right if he manipulates the relevant environment, without your knowledge, making it the case that by doing X you actually reveal Y not only to A but also to B et al., or that you actually reveal not just Y but also W to A (and/or to B et al.), which means that you no longer have the right kind of control over what aspects of yourself you reveal to others; your choice is undermined in an obvious way. This is the typical case. But there is another type of violation: suppose that the government kindly informs us that from now on it plans to listen to every phone conversation we make and keep a digital recording of it on a giant computer. The government does not want to surprise us, so it duly informs the public that this is how things are going to work from now on.

There is a clear sense that due notice notwithstanding, such a government policy would amount to an unacceptable infringement of our right to privacy. Why is that? Presumably because it diminishes the space in which we can control what we reveal about ourselves to an unacceptably small amount in an important domain of human activity. It just excludes too much from the ordinary means of communication available to us that we can control to a reasonable degree. You can still have a private conversation with your friend in Chicago, the government says, you just have to fly there and meet the friend in person. That seems like an unreasonable restriction of the environment in which we can exercise control over aspects of ourselves that we reveal to others.

Actual cases tend to be more complicated, of course. Suppose, for example, that the government does not actually listen to our phone conversations, only to a random and tiny sample of them. And it does not keep a record of the content of our phone conversations on a giant computer, only the (so-called) metadata. This is what we are told is actually happening in the U.S. these days. Is it a violation of our right to privacy? People have very different responses: some think that it obviously is; others shrug their shoulders, not so sure why should they care. There are two main reasons for these differing attitudes. First, remember that the underlying interest protected by the right to privacy is one of having a reasonable measure of control over ways in which we present ourselves to others. Reasonableness is a rough and vague criterion; people may have different views and different attitudes about how much control they want to have with respect to different aspects of their lives.

Second, and more importantly, in many cases of putative violations of privacy, there is an additional concern about the possibility of abuse of the information obtained. Many people are concerned about information obtained by the government because they do not trust the government; they fear that governments will abuse information they possess, putting people in jeopardy of unwarranted governmental scrutiny or even persecution. Others are more concerned about information gathered by privateorporations. Either way, the concern here is not directly about privacy; it is a concern about abuse of power that might follow from the fact that some particular kind of entity knows too much about you. The concern is that the entity in question may do things that it should not be doing with the information it has, in ways which would be detrimental to your interests. Think about your credit card information: there is nothing wrong with somebody having it, as long as they only charge you for what you owe. You do not want your credit card information in the wrong hands only because you fear that it will be misused.

The concern about possible abuse of the information people might have about us pervades many of the privacy protections we have in law. The stringent protection of medical privacy, for example, is clearly motivated by the fear of abuse: we fear that employers, insurance companies, credit agencies and others may rely on such information to our detriment. If you know that I have cancer, you might not give me a job or, if I already work for you, you may be reluctant to promote me. Most of these concerns, however, are not directly about matters of privacy; the interest they protect is an additional concern that is specific to the kinds of abuse of information that particular entities are suspected of.

Marmor argues that

In practical terms, the right to privacy is a right to a reasonably predictable and secure environment that enables people to have a reasonable measure of control over how they present themselves to others. This is not, however, the idea of a zone of privacy that many lawyers and philosophers have in mind. In fact, I want to argue that there is no such zone, and no good reason to think about privacy in those terms. We do not need to  move in the world protected under an opaque dome, giving us the space to do in it as we please. Thinking about our interest in privacy in terms of a protected zone, determining boundaries that are to be kept concealed from the public eye, is precisely the kind of conception that makes the right to privacy vulnerable to criticism by feminists and other critical theorists. They have long argued that privacy is the enemy of equality, putting women and other vulnerable segments of society at the mercy of the powerful, who can shield patriarchal conduct behind the veil of privacy. Indeed, if you think about privacy as a protecting dome, keeping the public eye from prying into your private conduct, practical concerns about the entrenchment of patriarchal social structures, and perhaps other forms of harmful behavior, is not without merit. The dome conception of privacy suffers from two main flaws, however. First, it misconceives the nature of the underlying interest that privacy is there to protect. Privacy is not there to protect conduct or actions. Our concern with privacy is not about doing things; with very few exceptions, mostly of the sex and nudity kind of stuff, there is hardly anything that is impermissible or wrong to do in public but somehow permissible to do in private. If it is wrong for me to yell at my daughter in public, it is also wrong to yell at her in private. Admittedly, some things that are bad to do might be even worse if done in public. Publicity often adds a further element of humiliation or embarrassment that might be avoided in private. However, it is very rarely the case (again, sex, nudity and stuff like that aside) that the permissibility of an act depends on it being done in private. If there is something you should not do if people know about it, doing it in private would not make it kosher. 

Now, you might think that the issue is not about moral permissibility but perhaps more about propriety; certain forms of behavior may be morally permissible, yet doing them in public is just improper or socially unacceptable or such. No doubt, we can think of many examples. Suppose that one of my acquaintances died recently and that I have always regarded him as rather stupid and insufferably arrogant; it would be totally fine to say that to my wife, in private, but not so nice to express this thought in his public eulogy. Or, to take another example, I presume that you really do not want to see the  couple sitting next to you in the restaurant hitting it off too passionately or, to the contrary, having a nasty row. But these kinds of examples, where we think that certain forms of conduct would be inappropriate in public though unobjectionable in private, are not about protection of privacy. On the contrary; these are cases in which it is the public zone that is in need of some protection, not the private. People have some legitimate expectations about what they want to encounter in public spaces of various kinds. It is the nature of our public spaces and communal interactions that are at stake here, not privacy. 

The second reason for thinking that the dome conception of privacy is misguided pertains to the confusion between an interest in privacy and the much broader interest we have in personal autonomy. There are many areas in life, and the ways we can choose to live it, that should be free from legal interference; that does not make them an issue of privacy. A good case in point is the famous U.S. Supreme Court decision in Griswold v. Connecticut that introduced the idea of a constitutional right to privacy into American jurisprudence. This was a noble decision on the wrong grounds. Griswold concerned the right to use contraceptives. The state of Connecticut sought to make contraceptive use illegal; it prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The Supreme Court decided that the state law violated a constitutional right to privacy. Perhaps the Court thought that anything to do with sex is a matter of privacy, or perhaps it just used the opportunity to elevate the right to privacy to a constitutional level (presumably both). Either way, the main moral issue in Griswold has nothing to do with privacy. People should have a right to use contraceptives because it is an exercise of their right to personal autonomy. People have a right to decide whether and when to have children, just as they have many other rights about decisions and choices that shape the kind of life they want to lead. Surely we agree with the Griswold decision that it is not the business of the law to regulate such matters. But that does not make it an issue of privacy. It is not the business of the law to determine what career I should chose, whom I should marry or what hobbies I should cultivate. It is not the business of the law to decide where I should live, how I spend my vacation or with whom, what books I should read, and so on and so forth. All these issues, and countless others, should be left for people to decide for themselves, for obvious reasons. But none of these choices and decisions, essential for any reasonable exercise of our personal autonomy, has anything to do with privacy. If you equate the right to privacy with the right to personal autonomy, you just admit that there is no particular interest in privacy that is worthy of protection, distinct from the much broader and, admittedly, more important, right to personal autonomy. For reasons that I have tried to articulate above, I think that this would be a mistake. 

A philosophical account of the right to privacy should explain a few things. It should explain what the distinct interest is that the right is there to protect, what it takes to secure it and what would count as a violation of the right. I argued that the interest in question is our interest in having a reasonable measure of control over ways in which we present ourselves to others. I argued that in order to secure this kind of interest we need to have a reasonably secure and predictable environment about the flow of information. And then it follows that a violation of the right to privacy consists in the manipulation of the environment in ways that unjustifiably diminish one’s ability to control how one presents oneself to others. 

An account of the right to privacy should also explain, however, what makes it the case that people have such wildly differing views about privacy and about what counts as a violation of the right. I hope that the account offered here gives some answers to those questions as well. For one thing, we should not confuse privacy with autonomy. Secondly, remember that the interest that grounds the right to privacy is rough and vague to begin with because it is an interest in a reasonable amount of control, and people may have reasonable disagreements about what reasonableness requires. The same goes for the reasonableness qualifier concerning the predictability of the environment and what would count as reasonable risks that people should be expected to assume in their daily lives. The right to privacy is just not the kind of right that can be expected to have sharp boundaries. Finally, I argued that many of the practical and legal concerns we face about matters of privacy are driven by the fear of abuse of power, which is an additional concern and one that is specific to the particular kind of entity suspected of potential misuse of information.