Blasphemy in Canada

Noting The Curious Persistence of Blasphemy: Canada and Beyond, the 268 pp PhD dissertation [PDF] by Jeremy Patrick

The purpose of this dissertation is to examine the history and future of the crime of blasphemy. In the introduction, several key questions are examined: (1) What is blasphemy? (2) Why do people blaspheme? and (3) What are the real or perceived harms of blasphemy? 

Subsequently, Part I examines the history of blasphemy and blasphemy-like laws in six jurisdictions around the globe: England, Ireland, Australia, Pakistan, the United Nations, and the United States. The jurisdictions chosen illuminate the fact that blasphemy is a complex concept which can be regulated in a wide variety of ways. These six provide an excellent picture of the varied and diverse ways the concept of blasphemy has operated and an understanding as to why it remains relevant today. 

Part II of this dissertation turns away from a global, comparative examination of blasphemy and instead provides a comprehensive, in-depth study of a single jurisdiction: Canada. This sustained history of blasphemy in Canada, the first ever published, allows for a valuable snapshot of the evolution of the crime into its modern form. 

Part III synthesizes the research and analysis in Parts I and II to answer the fundamental questions: what is the future of the crime of blasphemy in Canada and beyond?

Self Disclosure

'An Ethical Duty to Protect One's Own Information Privacy?' by Anita Allen in (2013) 65 Alabama Law Review argues that

People freely disclose vast quantities of personal and personally identifiable information. The central question of this Meador Lecture in Morality is whether they have a moral (or ethical) obligation (or duty) to withhold information about themselves or otherwise to protect information about themselves from disclosure. Moreover, could protecting one’s own information privacy be called for by important moral virtues, as well as obligations or duties? Safeguarding others’ privacy is widely understood to be a responsibility of government, business, and individuals. The “virtue” of fairness and the “duty” or “obligation” of respect for persons arguably ground other-regarding responsibilities of confidentiality and data security. But is anyone ethically required — not just prudentially advised — to protect his or her own privacy? If so, how might a requirement to protect one’s own privacy and to display ethical virtues of reserve, modesty and temperance properly influence everyday choices, public policy, or the law? I test the idea of an ethical mandate to protect one’s own privacy, while identifying the practical and philosophical problems that bear adversely on the case. I consider “conceptual” and “libertarian” objections to the view that each individual indeed has a moral obligation to safeguard his or her own privacy. Government and industry are not off the hook if privacy is a duty of self-care and self-respect: they have responsibilities and are freshly viewed as partners in moral agents’ quest for ethical goodness.

Allen comments that

As we can see from the foregoing discussion, there are several negative positions one might take respecting whether information privacy protection is a duty to oneself, including these:

(1) No moral duty to or regarding oneself. There are no moral duties to oneself or regarding oneself, and therefore, no duty to protect one’s own privacy. We may (or may not) have reasons of prudence and self-interest to protect our own privacy.

(2) No moral privacy protection duty. There are moral duties to oneself, but they do not include a duty to protect one’s own informational privacy. We may (or may not) have reasons of prudence and self-interest to protect our own privacy.

(3) No first-order moral duty to or regarding oneself. There are no first-order moral duties to oneself, and therefore no such duty to protect one’s own privacy, but there are first-order duties to others that may entail derivative second-order duties to protect one’s own privacy.

(4) Prudence Only. We may have reasons of prudence and selfinterest to protect our own privacy, and commonly do. There are no moral duties to oneself, and therefore no duty to protect one’s own privacy. Nor is there any primary duty to others that entails a derivative duty to protect one’s own privacy.

(5) No Reason to Protect. There are no general reasons of prudence and self-interest to protect one’s own privacy. There are no moral duties to oneself, and therefore no duty to protect one’s own privacy. Nor is there any primary duty to others that entails a derivative duty to protect one’s own privacy.

I reject 1–5 above and subscribe to duties to oneself as an obligation to act in ways that protect one’s welfare and promote self-respect. Moreover, I believe that among our duties to ourselves are duties of privacy protection. ...

We should make a habit and virtue of protecting our own privacy. Duties to protect one’s own privacy can be articulated in admixtures of deontological, utilitarian, and aretaic frameworks, to name the most routinely discussed. The duty to protect one’s own privacy is akin to a duty to promote the happiness, autonomy, and character of one’s current and future self. (I note that Kant himself did not maintain that individuals have a duty to promote their own happiness, as I would.) A modern deontological morality might understand privacies of modesty and reserve as modes of self-esteem, self-respect, or spirituality. An aretaic or perfectionist morality might treat a degree of modesty and reserve as favorable character traits conducive to the best life. Imagine a man with colon cancer who tells his coworkers in a limited distribution e-mail that he has colon cancer and is about to take some time off from work to begin treatment. Such a sensitive disclosure is not one that I would characterize as unethical. But now imagine that this same man e-mails, unsolicited, to his same coworkers a detailed electronic diary about his cancer that includes photographs of his surgical wounds, MRIs, and X rays, along with emotional accounts of his feeling before, during, and after months of chemotherapy, radiation, and recovery. Now we have “oversharing” that raises ethical concerns. Why? Because of the discomfort he causes others, but also, critically, for the damage to his own reputation, his loss of dignity, and his departure from good judgment and temperate character.

National Security Legislation Review

The declassified 191 page Annual Report [PDF] to December 2012 of Australia's Independent National Security Legislation Monitor

reviews the appropriateness and effectiveness of Australia's national security legislation, focusing on the legal definition of terrorism and on controversial powers such as control orders, preventative detention and coercive questioning. 

 Key findings are -

• control orders [CO] in their present form are not effective, not appropriate and not necessary. It suggests that they may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown. Chapter II
•  the preventative detention orders are not effective, not appropriate and not necessary. They should simply be abolished. Chapter III
• questioning warrants [QW] are sufficiently effective to be appropriate, and in a relevant sense necessary. They might be more readily available than the legislation currently provides. The Monitor rejects the criticism that questioning warrants are an unjustified infringement of liberty. Chapter IV
• questioning and detention warrants are an unnecessary extension of questioning warrants. But the reasoning for that conclusion does not suggest detention for the purposes of questioning is wrong. Rather, it is appropriately and proportionately comprehended within the counter-terrorism laws provisions for questioning warrants. Chapter V
• Chapter VI proposes improvements to Australia’s definition of terrorism. The current requirement for the separate proof of a political, religious or ideological motivation in order that a person be guilty of a terrorist offence is not effective, not appropriate and not necessary. Indeed, it may be counter-productive.

Specific recommendations are

R II/1: If COs are to be retained in general, the onus of showing that grounds exist and, if challenged, that they existed when a CO was first made, should clearly be imposed on the authorities applying for confirmation of an interim CO. 

R II/2: If COs are to be retained in general, the prerequisites for making an interim CO, including on an urgent basis, should include satisfaction that proceeding ex parte is reasonably necessary in order to avoid an unacceptable risk of a terrorist offence being committed were the respondent to be notified before a CO is granted.

R II/3: If COs are to be retained in general, the provisions governing confirmation hearings should expressly impose, perhaps by a presumption, the onus on the AFP to show the CO should continue in force.

R II/4: The provisions of Div 104 of Part 5.3 of the Code should be repealed. Consideration should be given to replacing them with Fardon type provisions authorizing COs against terrorist convicts who are shown to have been unsatisfactory with respect to rehabilitation and continued dangerousness.  

III/1: If PDOs are to be retained in general, the threshold tests for them should require both the AFP applicant and issuing authority to hold an actual belief as to the prerequisite matters as well as the grounds for that belief being reasonable. 

R III/2: If PDOs are to be retained in general, the imminence test should be replaced with a requirement that the AFP applicant and issuing authority   are each satisfied that there is a sufficient possibility of the terrorist act occurring sufficiently soon so as to justify the restraints imposed by the PDO.

R III/3: If PDOs are to be retained in general, the necessity requirement in para 105.4(6)(b) should be amended to require that it be “reasonably necessary to detain the subject to preserve evidence of, or relating to, the terrorist act”.

R III/4: The provisions of Div 105 of Part 5.3 of the Code should be repealed.  

R IV/1: The issuing authority as well as the Attorney-General should be required to consider all the prerequisites for the issue of QWs, rather than the issuing authority taking the consent of the Attorney-General as conclusive of some of them.

R IV/2: The QW provisions should be amended to include a requirement that the prescribed authority must be satisfied on reasonable grounds that any extension of time granted on account of the use of an interpreter is no more than could reasonably be attributable to the use of the interpreter during questioning given the circumstances of the individual case.

R IV/3: The requirement in subpara 34V(3)(b)(ii) of the ASIO Act that there be no alternative way of taking a person into custody should be removed.

R IV/4: The length of imprisonment for offences of deliberate contravention of safeguards in relation to QWs should be amended to be at parity with the length of imprisonment for offences against secrecy obligations in relation to QWs.

R IV/5: The length of imprisonment for offences against secrecy obligations in relation to QWs should be reduced to 2 years.

R IV/6: The offence of failing to produce a record or thing should be amended to include the wilful destruction of a record or thing as well as tampering with a record or thing with the intent to prevent it from being produced, or from being produced in a legible form.

R IV/7: The QW provisions should be amended to make clear that a person who has been charged with a criminal offence cannot be subject to questioning until the end of their criminal trial.

R IV/8: ASIO should provide additional guidance and information to those officers involved in the preparation of QW reports to ensure the reports include a full assessment of the overall intelligence value of the information obtained through the use of QWs.

R V/1: The provisions of Subdiv C in Div 3 of Part III of the ASIO Act should be repealed.

R V/2: The QW provisions should be amended to permit arrest if the police officer serving the warrant believes on reasonable grounds from anything said or done by the person served that there is a serious possibility that he or she intends not to comply with the warrant, and also to permit the prescribed authority to direct detention after service of a QW but before the time specified in it for attendance if it appears on reasonable grounds that there is an unacceptable risk of the person tipping off another involved in terrorism, failing to attend or destroying or tampering with evidence.

R VI/1: Motivation should be removed as an element of the defined term “terrorist act” in the Code.

R VI/2: Hostage taking should be expressly included in Australia’s definition of “terrorist act” in the Code.

R VI.3: Acts committed during an armed conflict governed by international law should be excluded from the definition of “terrorist act” in the Code.

The 218 page final report of the Council of Australian Governments (COAG) review of Counter-Terrorism Legislation meanwhile recommends

R 1: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘threat of action’
The Committee recommends that ‘threat of action’ be removed from the definition and a separate offence of ‘threatening to commit a terrorist act’ be created.

R 2: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘hoax threat’
The Committee recommends that an additional offence be inserted into Part 5.3 of the Criminal Code to provide for a ‘hoax threat’ to commit an act of terrorism.

R 3: Criminal Code – Section 100.1 – Definition of a terrorist act – meaning of ‘harm’
The Committee recommends that ‘harm’ in subsection 100.1(2) be amended to allow the harm contemplated by the Act to extend to psychological harm, together with any consequential amendment, for example, to subsection 100.1(3)(b)(i).

R 4: Criminal Code – Section 100.1 – Definition of a terrorist act – ‘hostage taking’
The Committee recommends that ‘hostage-taking’ be included in subsection 100.1(2).

R 5: Criminal Code – Section 100.1 – Definition of a terrorist act – United Nations and its agencies
The Committee recommends that subsection 100.1(1)(c)(i) extend to include reference to the United Nations, a body of the United Nations, or a specialised agency of the United Nations.

R 6: Criminal Code – Section 100.1 – Definition of a terrorist act – Interaction with the law of armed conflict
The Committee recommends that consideration be given to incorporating in the legislation an amendment to the effect that Part 5.3 of the Criminal Code will not apply to acts committed by parties regulated by the law of armed conflict.

R 7: Criminal Code – Section 100.1 – Definition of a terrorist act – Exemption for Australian forces
The Committee recommends that consideration be given to excluding from the definition an act done by a person in the course of, and as part of, his or her service in any capacity with the Australian armed forces.

R 8: Criminal Code – Section 101.2 – Providing or receiving training connected with terrorist acts
The Committee does not recommend any change to this section.

R 9: Criminal Code – Section 101.4 – Possessing things connected with terrorist acts
The Committee recommends that section 101.4 be amended to make it clear that ‘a thing’, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

R 10: Criminal Code – Section 101.5 – Collecting or making documents
The Committee recommends that section 101.5 be amended to make it clear that ‘a document’, by its very nature, is capable of being connected with preparation for, the engagement of a person in, or assistance in a terrorist act.

R 11: Criminal Code – Section 101.6 – Doing an act in preparation for, or planning, a terrorist act
The Committee does not recommend any change to this section.

R 12: Criminal Code – Section 102.1 – Proscription of terrorist organisations
The Committee does not recommend that the present method of proscription of a terrorist organisation be changed.

R 13: Criminal Code – Subsection 102.1(1A) – Definition of ‘advocates’
The Committee recommends that subsection 102.1(1A) be amended to omit (c). This subsection deals with a situation where an organisation directly praises the doing of a terrorist act.

R 14: Criminal Code – Section 102.1A – Commencement of listing a terrorist organisation
The Committee recommends that the Government give consideration to postponing commencement of a listing until after the Parliamentary disallowance period has expired.

R 15: Criminal Code – Communication of proscription decisions
The Committee recommends that the Attorney-General’s Department should consider whether it is able to enhance its communication methods to ensure that communities are more effectively notified when an organisation has been proscribed. Such methods should be effectively responsive and personal to the specific information needs of ethnic and religious communities.

R 16: Criminal Code – Section 102.5 – Training unconnected with terrorist activities
The Committee recommends that section 102.5 be amended to include specific exemptions for providing training to or receiving training from a terrorist organisation for purposes unconnected with the commission of a terrorist act.

R 17: Criminal Code – Section 102.5 – ‘Participation’ in training
The Committee recommends the offence in section 102.5 be amended to include ‘participation’ in training.

R 18: Criminal Code – Section 102.5 – Strict liability in respect of proscribed terrorist organisations
The Committee recommends the repeal of subsections 102.5(2) – (4).

R 19: Criminal Code – Subsection 102.6(3) – Reduction of the burden on the defendant
The Committee recommends that the legal burden in the note in subsection 102.6(3) be reduced to an evidential one.

R 20: Criminal Code – Subsection 102.6(3) – Exception for lawyers’ receipt of funds from a terrorist organisation
(i) The Committee recommends subsection 102.6(3)(a) be amended to exempt the receipt of funds from a terrorist organisation for the purpose of legal advice or legal representation in connection with criminal proceedings or proceedings relating to criminal proceedings (including possible criminal proceedings in the future) and in connection with civil proceedings of the following kind: (ii) Proceedings relating to whether the organisation in question is a terrorist organisation, including the proscription of an organisation, a review of any proscription, or the de-listing of an organisation; or (iii) A decision made or proposed to be made under Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (Cth), or proceedings relating to such a decision or proposed decision; or (iv) A listing or proposed listing under section 15 of the Charter of the United Nations Act 1945 (Cth) or an application or proposed application to revoke such a listing, or proceedings relating to such a listing or application or proposed listing or application; or (v) Proceedings conducted by a military commission of the United States of America or any proceedings relating to or arising from such a proceeding; or (vi) Proceedings for a review of a decision relating to a passport or other travel document or to a failure to issue such a passport or other travel document (including a passport or other travel document that was, or would have been, issued by or on behalf of the government of a foreign country).

R 21: Criminal Code – Section 102.6 – Penalty for knowingly funding a terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(1) be reduced to 15 years.

R 22: Criminal Code – Section 102.6 – Penalty for recklessly funding a terrorist organisation
The Committee recommends that the penalty for an offence under subsection 102.6(2) be reduced to 10 years.

R 23: Criminal Code – Section 102.8 – Associating with terrorist organisations
The Committee, by majority, recommends the repeal of this section.

R 24: Criminal Code – Section 103.1– Financing terrorism
The Committee recommends that this section be repealed and replaced by a graded continuum of offences, capturing both higher and lower culpability situations. The gradation should be: (i) Providing or collecting funds with the intention or knowledge that they be used to facilitate or to allow engagement in a terrorist act. The Committee recommends this offence attract a maximum penalty of life imprisonment. (ii) Providing or collecting funds reckless to their use in facilitating or allowing engagement in a terrorist act. ‘Recklessness’ for this purpose is defined in section 5.4 of the Criminal Code. The Committee recommends this offence attract a maximum penalty of 25 years.

R 25: Criminal Code – Section 103.2 – Financing a terrorist
The Committee recommends that consideration be given to the repeal of this section.

R 26: Criminal Code – Retention of control orders
The Committee considers that the control order regime should be retained with additional safeguards and protections included.

R 27: Criminal Code – Control orders – Basis for seeking Attorney-General’s consent
The Committee recommends the amendment of subsection 104.2(2) (b) to require that the second basis on which a senior member of the Australian Federal Police seeks the Attorney-General’s written consent to request an interim control order be that he or she “considers on reasonable grounds that the person has provided training, or received training from, a listed terrorist organisation”.

R 28: Criminal Code – Control orders – Definition of ‘issuing court’
The Committee recommends that the definition of ‘issuing court’ in section 100.1 be amended to read ‘the Federal Court of Australia’.

R 29: Criminal Code – Control orders as a last resort – Cooperation and information sharing between the Australian Federal Police and the Commonwealth Director of Public Prosecutions
The Committee recommends that investigating agencies, prior to the Australian Federal Police requesting consent from the Attorney-General to seek an interim control order, should provide the Commonwealth Director of Public Prosecutions with the material in their possession so that the Director may, in light of the Prosecution Policy of the Commonwealth, consider or reconsider the question of prosecution in the criminal courts. This recommendation does not necessarily require that it be incorporated in the legislation at this stage. It does, however, emphasise that criminal prosecution is the preferable approach. Control orders should always be sought as a last resort.

R 30: Criminal Code – Control orders – Special Advocates
The Committee recommends that the Government give consideration to amending the legislation to provide for the introduction of a nationwide system of ‘Special Advocates’ to participate in control order proceedings. The system could allow each State and Territory to have a panel of security-cleared barristers and solicitors who may participate in closed material procedures whenever necessary including, but not limited to, any proposed confirmation of a control order, any revocation or variation application, or in any appeal or review application to a superior court relating to or concerning a control order.

R 31: Criminal Code – Control orders – Minimum standard of disclosure of information to controllee
The Committee recommends that the legislation provide for a minimum standard concerning the extent of the information to be given to a person the subject of an application for the confirmation of a control order, or an application for a variation or revocation of a control order. This requirement is quite separate from the Special Advocates system. It is intended to enable the person and his or her ordinary legal representatives of choice to insist on a minimum level of disclosure to them. The minimum standard should be: “the applicant must be given sufficient information about the allegations against him or her to enable effective instructions to be given in relation to those allegations.” This protection should be enshrined in Division 104 wherever necessary.

R 32: Criminal Code – Control orders – Information concerning appeal rights
The Committee recommends that section 104.12 should be amended to provide that the information to be given to a person the subject of an interim control order include information as to all appeal and review rights available to that person or to the applicant in the event that an interim order is confirmed, varied or revoked.

R 33: Criminal Code – Control orders – Relocation condition
The Committee recommends that subsection 104.5(3)(a) be amended to ensure that a prohibition or restriction not constitute – in any circumstances – a relocation order.

R 34: Criminal Code – Control orders – Curfew condition
The Committee recommends that a prohibition or restriction under subsection 104.5(3)(c) – a curfew order – be generally no greater in any case than 10 hours in one day.

R 35: Criminal Code – Control orders – Communication restrictions
The Committee recommends that, other than in any exceptional case, the prohibitions or restrictions under subsection 104.5(3)(f) permit the controlled person to have access to one mobile phone, one landline, and one computer with access to the internet.

R 36: Criminal Code – Control orders – Limit on duration
The Committee recommends that, for the present time, there be no change to the maximum duration of a control order, namely a period of 12 months.

R 37: Criminal Code – Control orders – Terms of an interim control order
The Committee recommends that section 104.5 should be amended to ensure that, whenever a control order is imposed, any obligations, prohibitions and restrictions to be imposed constitute the least interference with the person’s liberty, privacy or freedom of movement that is necessary in all the circumstances.

R 38: Criminal Code – Control orders – Oversight by the Commonwealth Ombudsman
The Committee recommends that the Commonwealth Ombudsman be empowered specifically to provide general oversight of interim and confirmed control orders.

R 39: Criminal Code – Preventative Detention
The Committee recommends, by majority, that the Commonwealth, State and Territory ‘preventative detention’ legislation be repealed. If any form of preventive detention were to be retained, it would require a complete restructuring of the legislation at Commonwealth and State/Territory level, a process which, in the view of the majority of the Committee, may further reduce its operational effectiveness.

R 40: Administrative Decisions (Judicial Review) Act 1977 – Schedule 1 Exemptions from review
The Committee recommends that paragraph (dab) be retained. If preventative detention remains, the Committee recommends that paragraph (dac) be removed.

R 41: Section 6 Crimes (Foreign Incursions and Recruitment) Act 1978 – Hostile activities in foreign States
The Committee recommends an amendment to subsection 6(1)(a) to remove the need to prove an intention to engage in hostile activity in a particular foreign State.

R 42: Section 16 Financial Transaction Reports Act 1988
The Committee does not recommend any change to this provision.

R 43: Crimes Act 1914 – Federal stop, search and seizure powers – Emergency entry without a warrant
The Committee recommends that the legislation be amended to require the police authorities exercising power under section 3UEA to report annually to the Commonwealth Parliament on the use of this power.

Fishlock

In Fishlock v Campaign Palace Pty Ltd [2013] NSWSC 531 the Supreme Court of New South Wales has held that Paul Fishlock, former executive creative director of advertising agency The Campaign Palace, was entitled to damages for repudiation of contract as well as long service leave.

The defendant initially asserted that Fishlock, by reason of his possession, custody and control of certain templates and presentations, had taken confidential information or intellectual property belonging to the agency and "by reason thereof engaged in what was described as serious misconduct". It was further alleged that had the defendant known of these matters it would have had a right to summarily terminate the plaintiff's employment. As a result the defendant asserted he was not entitled to any compensation for redundancy or other matters. By reason of his possession of the templates and presentations he had not come to equity with clean hands. Further, the plaintiff's assertion that the contract was repudiated amounted to unconscionable conduct on the part of the plaintiff.

On the second day of the trial, the agency abandoned any claim based on an alleged misuse by Fishlock of templates and presentations belonging to the defendant.

 The defendant also asserted that the plaintiff had failed to mitigate his losses and was obliged to bring to account any earnings from other sources which he had made after leaving the employment of the defendant.

Fishlock was successful in his application for damages over the agency's repudiation of his employment contract.

The Court accepted that the agency's decision to appoint another person as National Chief Creative Officer and reduce Fishlock's standing and status amongst the agency staff amounted to repudiation of the employment contract.

Inked

Mermaid Beach (Queensland) MP Ray Stevens is reported to have come up with one of this year's most amusing proposals for crime control. Let's have a state-wide register - it's unclear whether it's to be online - of tattooed Queenslanders!

People with ink would reportedly have to register their tattoos with the Qld State Government as part of Stevens' plan to crack down on 'bikie gang money-laundering operations'. If reports are to be believed, the tattoos rather than the parlours are to the subject of registration.

According to one report the MP considers that

bikie gangs were using tattoo parlours as a front to launder their ill-gotten gains, and a form of tattoo register would stop them using fake names and inflated tattoo prices to do this.

Mr Stevens said fake names were used at bikie-affiliated parlours, with cash payments of thousands of dollars for bogus tattoo work.

"Under the Health Act there should be a register of people getting tattoos so that we can identify those people getting tattoos rather than have John Smith, Bill Brown and all the other fake names of people who are paying $5000 or $10,000 for tattoos. This is a way for these bikie clubs to clean their money," he said. "Considering the number of bikies and tattoo parlours I've seen in my area, considering the shootings in my area, I think it's a very worthwhile exercise to look into tattoo parlours and health activities associated with them."

Mr Stevens said the proposal could work with people required to give their name and identification to parlours when getting a tattoo with that information passed on to the Government register. Similar restrictions are used for the sale of cold and flu medication containing phenylephrine, which is targeted by criminals because it is an ingredient in making speed.

One immediate thought is that the parlours - supposedly run by crims - would be expected to contribute to a register that would demonstrate that criminal activity is taking place.

Let's not think about inconveniences such as verification or privacy.

Queensland Council for Civil Liberties spokesman Terry O'Gorman unsurprisingly is reported as commenting that the proposal is

a naive and extreme approach. "To require everyone who gets a tat to be registered is to require a huge number of the population who want it as a fashion statement to go on what would effectively be a criminal register," he said.

He said there was already a Federal Government body, Australian Transactions Reports and Analysis Centre, or AUSTRAC, which used high-tech means to investigate alleged money laundering, while if police had legitimate information to suggest a tattoo parlour was being used for laundering they would easily be able to get a phone tap and listening devices in place.

Foot-in-the-door Inc

The 54 page Strangers are calling! The experience of door to door sales in Melbourne's refugee communities [PDF] by Laura Berta, Gerard Brody & Cynthia Mackenzie (Footscray Community Legal Centre) examines

the impact of door-to-door sales practices on vulnerable consumers, including refugee communities, low-income families and public housing residents. By using the real life experiences of our clients at the Footscray CLC, this report examines the social and legal impact of door-to-door sales. This report finds that disadvantaged consumers are disproportionately affected by damaging and often illegal sales practices. Such practices have social and financial consequences for communities and individuals.

The report offers several findings - 

1 Door-to-door energy sales practices disproportionately affect vulnerable consumers. For the purposes of this report, “vulnerable consumers” include: (a) public housing residents; (b) concession holders; (c) non-English speakers including people of refugee background; (d) women, particularly when home alone; and (e) the elderly, and young people.

2 Vulnerable consumers are more susceptible to signing a new energy contract as a result of a door-to-door energy sale. They are more likely to ‘switch’ energy providers because they feel vulnerable and pressured; the practice of door-to-door sales often involves entering the protected, private space of a potential consumer (including single mothers, the elderly, and young people home alone).

3 Many vulnerable consumers receive misleading or false information about the nature and content of energy contracts. This can result in negative settlement outcomes for those consumers with a refugee background, who can suffer long-term effects, such as fear and distrust of strangers knocking on their door.

4 Our case studies demonstrate breaches of: (a) contract law; (b) laws regulating unsolicited consumer agreements (door-to-door sales); (c) prohibitions on misrepresentations and misleading and deceptive conduct; (d) prohibition against unconscionable conduct; (e) unfair tactics, such as undue harassment or coercion; and (f) energy-specific consumer protections.

5 Many vulnerable consumers are unable to provide “informed consent” in a door-to-door energy sales context. There is no evidence that post-sale telephone verification procedures overcome this problem. 6 Consumers of refugee background are commonly not able to utilize information provided by Consumer Affairs Victoria when responding to door-to-door sales, as this information makes a number of inappropriate assumptions about the skills and resources available to this group of consumers.

7 Self-regulated industry Codes of Practice are not an effective means of protecting consumers.

8 Independent enforcement against misleading or illegal door-to-door sales practices can be effective.

9 Beyond door-to-door energy sales. Alternative methods for providing direct energy sales to vulnerable consumers are available.

The complementary recommendations are - 

10 We call for inclusive energy policy. The Australian Government’s social inclusion agenda as well as the Department of Immigration and Citizenship’s settlement programs are being undermined by door-to-door energy sales practices. Migrants and refugees are telling us that door-to-door sales practices, in general, are harmful and unwelcome and have a negative impact on their social, emotional and physical well-being. The negative impacts are magnified when door-to-door energy sales are conducted in a misleading or illegal manner. We recommend that governments and service providers work together to ensure that issues of settlement, energy provision, and legal assistance is as consistent and inclusive as possible.

11 We call for support and expansion of the “Do Not Knock” campaign. We support the Consumer Utilities Advocacy Centre’s recommendation that the Essential Services Commission develop an online tool to allow consumers to be added to retailers’ “No Contact” lists via a central system. We recommend government funding be allocated to trialling “Do Not Knock” areas, which may include designated public housing flats with sufficient resident backing. We make this recommendation specifically in the context of energy door-to-door sales practices.

12 We support continued enforcement against illegal door-to-door sales practices. We commend the Australian Competition and Consumer Commission’s (ACCC) current focus on enforcement of door-to-door sales misconduct and support measures to educate vulnerable consumers and encourage them to invoke their rights.

13 We call on energy retailers to provide an alternative to door-to-door sales. We argue that maintaining a competitive market can and should protect the most vulnerable consumers. We recommend alternative strategies, which could include “Energy Market” events in which consumers can attend an open forum in a public space with energy retailers offering competitive rates. This could be supported by interpreters, community leaders and other service providers as appropriate.

14 We support targeted and appropriate community education. We welcome and support the targeted community education already provided by Consumers Affair Victoria (CAV) and call upon CAV and other service providers to expand the tools available for non-English speaking consumers with low literacy and numeracy rates and for those who may not have a computer. We suggest the models employed by Footscray Community Legal Centre and Victoria Legal Aid which use visual stimulants and community venues.

15 We call for an enhanced Code of Conduct from energy retailers. The industry Code of Conduct by Energy Assured Limited should include strategies to address systemic misconduct which can occur in door to door sales practices. Commission-based selling which encourages aggressive sales tactics must be addressed.

Time and Purchase Cycles

From Gillian Tett's 'The cost of hand-to-mouth living' in this weekend's Financial Times regarding corporate tracking of consumer spending in 'pay cycles' (eg purchases clustering around paydays), with one marketer "spending a lot of money to monitor its customers with big data" -

[I]t is not simply watching what they do or do not buy. These days it is increasingly scrutinising the micro-level details of pay and benefit cycles in every district in America. The reason? Before 2007, this executive said, consumer spending on food and drink was fairly stable during the month in most US cities. But since 2007, spending patterns have become extremely volatile. More and more consumers appear to be living hand-to-mouth, buying goods only when their pay checks, food stamps or benefit money arrive. And this change has not simply occurred in the poorest areas: even middle-class districts are prone to these swings. Hence the need to study local pay and benefit cycles.

“We see a pronounced difference between how people are shopping today and before the recession,” the executive explained. “Consumers are living pay check by pay check, and they tend to spend accordingly. Then you have 50 million people on food stamps and that has cycles too. So for our business it has become critical to understand the cycle – when pay [and benefit] checks are arriving.” ....

[O]ne in seven Americans (about 50 million) are now thought to be living in poverty and a similar number in “food insecure” households. Meanwhile, six million are using food banks and 47 million are on food stamps. And when the Brookings Institution tried to look at this fragility issue a couple of years ago, by analysing how many households could find $2,000 in a hurry, it concluded that a quarter of families had no access to ready, rainy-day funds. “Although financial fragility is more severe among low-income households, a sizeable fraction of seemingly middle-class Americans are also at risk,” the study concluded. 

The Brookings research is reflected in 'Financially Fragile Households: Evidence and Implications' (Brookings Papers on Economic Activity, Spring 2011) [PDF] by Annamaria Lusardi, Daniel Schneider & Peter Tufano.

Tett comments that  what is

 intriguing – if not tragic – is what it reveals about our attitude towards time. During most of the past century, it has often seemed as if a hallmark of modern “progress” is that our planning horizons, as a society, have expanded. Unlike peasants or herdsmen in the pre-modern age, who lacked the ability to measure the passage of time or calculate future risks with precision, 20th-century man appeared to have so much control over the environment that it was possible – and desirable – to take a long-term view. No longer were people destined to scramble in a reactive manner; they could plan ahead, mastering time. The fact that people were no longer foraging for food each day, but were able to visit a supermarket proactively at pre-planned intervals, was a good metaphor for a much bigger social and cognitive shift.

But, as the past five years have shown us, history does not go in a straight line, or proceed homogeneously. If you were to ask wealthy Americans to visualise the future, they might well describe it as a carefully calibrated road along which they expect to travel. But if you ask poorer Americans, who are scrambling from pay check to pay check, they are more likely to perceive the future as a chaotic series of short-term cycles. Economic polarisation, in other words, creates different cognitive maps, and also creates, of course, those subtle shifts in spending patterns that the big data experts in consumer goods companies now want to track.