Do Not Call consultation

The Department of Communications has released a consultation paper [PDF] regarding the Do Not Call regime under the Do Not Call Register Act 2006 (Cth).

The 25 page 'Optimal period of Registration on the Do Not Call Register' discussion paper indicates that

The Do Not Call Register (the Register) allows registrants to opt out of receiving certain unsolicited telemarketing calls and marketing faxes by listing their telephone or fax numbers on the Register. When the Register was first established in 2007, registrations were valid for three years from registration. Since then, the registration period has been extended on three occasions, and is now set at eight years.

This discussion paper is seeking community views on the optimal period of registration for numbers on the Register. Public comment is sought on four options:

Option 1) Reduce the period of registration to three years

Option 2) Retain the current eight year registration period

Option 3) Extend the registration period to indefinite

Option 4) Remove the need to register

The Department of Communications is seeking comment on which of these four options maximises the value of the Register to Australian consumers and ensures that their privacy is adequately protected, while minimising the compliance cost on businesses engaging in telemarketing and fax marketing activities as far as possible. In addition, for options one, two and three, the Department is also considering the introduction of a cleansing mechanism, to improve the accuracy of the Register. ...

The Do Not Call Register Act 2006 (the Act), requires the Australian Communications and Media Authority (ACMA) to establish and maintain the Register. The Register became operational in May 2007, and since then 9 million numbers have been registered. The key objectives of the Register are to:

• reduce the inconvenience and intrusiveness of unsolicited telemarketing calls and marketing faxes by enabling consumers to list their fixed line and mobile phone numbers on the Register 

• provide a consistent and efficient operating environment for businesses engaging in telemarketing and fax marketing activities 

• establish an effective complaints handling mechanism for consumers to report complaints about unsolicited telemarketing calls and marketing faxes.

The Register allows consumers to register their numbers, to opt-out of receiving certain telemarketing calls and marketing faxes. There are a number of ways that consumers can register, including via the internet (www.donotcall.gov.au), telephone (1300 792 958), fax and post. Registrations can take up to 30 days to become fully effective. Registrants can also remove their telephone or fax numbers from the Register through an online process. The Act prohibits the making of an unsolicited telemarketing call or the sending of an unsolicited marketing fax to a number on the Register, subject to certain exceptions.

Telemarketers and fax marketers can submit their calling lists to the Register operator, which then ‘washes’ the list against the Register to identify which numbers are registered. To access the washing service, telemarketers and fax marketers pay an annual subscription fee. The fees operate on a sliding scale, depending on the maximum number of Australian numbers to be washed in a 12 month period.

Since 1 July 2008, the full direct costs of operating the Register have been recovered from businesses engaging in telemarketing and fax marketing activities through these subscription fees. The ACMA undertakes regular cost-recovery reviews to determine the subscription fees, in line with the Australian Government’s Cost Recovery Guidelines. The fees currently range from subscription type A, that is free for 500 numbers, through to subscription type H, that is $90 000 for 100 000 000 numbers.

The Department notes that The registration period for numbers on the Register was originally set at three years. This meant that numbers registered in 2007, would have needed to be re-registered before 2010 so as not to fall off the Register.

Since the commencement of the Register in 2007, the registration period has been extended three times. The most recent extension occurred on 9 April 2013, and registrations are now valid for eight years from the date the number was first registered. Numbers registered soon after the Register commenced in 2007 will now begin to expire from 31 May 2015.

The limited period of registration was originally intended to address concerns that an indefinite (or very long) period of registration may introduce inaccuracies into the Register.

Account-holders do not generally request the removal of their number from the Register when they give up their number. When a number is given-up, it will eventually be reissued to a new account holder after being in quarantine for a period. As a result it is possible that there are inaccuracies on the Register. ...

There are also a number of other factors which act to prevent inaccuracy or reduce the need for intervention:

- Local Number portability allows consumers to keep their geographic number (i.e. 02 6271 XXXX) when they switch providers. For example, a person changing telephone providers can keep their number when they move to a new provider. In 2011-12, there were 627,16010 geographic numbers ported. There are 5 million landline numbers on the Register. Since the commencement of the Register, a total of 3.7 million geographic numbers have been ported. Access to Local Number Portability may mean that consumers are less likely to need to seek a new number when they swap providers, and this may therefore reduce the amount of numbers entering quarantine.

- Mobile Number Portability allows customers to retain their mobile telephone number when they change providers. For example, a person changing mobile telephone service providers can keep their number when they move to a new provider. In 2011-12, there were 2.6 million mobile numbers ported. There are currently 3.85 million mobile numbers on the Register. Since the commencement of the Register, a total of 8.9 million mobile numbers have been ported. Mobile Number Portability, like Local Number Portability, may mean that customers are less likely to need to seek a new number when they swap providers, and this may therefore reduce the quantity of numbers entering quarantine. However, it is worth noting that pre-paid number have a high turnover (that is, a customer may simply discard their number). Likewise, prepaid mobile services may also be passed on from person to person without anyone contacting the supplier. Hence, pre-paid mobile phone numbers on the Register have an increased likelihood of inaccuracy.

- Location portability allows individuals (and organisations) to retain their fixed line/landline number when they move. This is possible when an individual is moving house within the same general geographic area (for example within Canberra or Gosford). Some providers do not allow location portability, which may limit the ability of consumers to access this service when they move. The ACMA has relaxed these rules for Voice over Internet Protocol (VoIP) services – in certain circumstances, individuals can acquire a VoIP number that does not relate to the geographic area that they live in (for example, in certain circumstances a person living in Canberra can be issued a Melbourne number – e.g. 03 9963 XXXX). - Changing a place of residence does not normally require any change in the existing mobile numbers, so the accuracy of the mobile numbers on the register is not usually affected by moving. As of 15 July 2013, there were 3.85 million mobile phone numbers registered 

One rationale for the DNC regime is privacy as 'the right to be left alone'. The paper notes that

Consumers have consistently reported that telemarketing, and unsolicited marketing in general, can cause them inconvenience and annoyance. A recent 2013 study by the Office of the Australian Information Commissioner (OAIC) has found that:

56% of respondents felt annoyed from contact by unsolicited marketers.

39% of respondents concerned about how their details were obtained by the organisation contacting them.

Community attitudes also appear to be shifting. In 2013, 45% were annoyed by unsolicited marketing versus just 27% from a similar survey done by the OAIC in 2007. In the 2013 survey respondents were less likely to feel that unsolicited marketing was "a bit annoying, but mostly harmless" (11% in 2013 versus 23% in 2007). The 2013 survey also found that only 3% of respondents indicated that unsolicited marketing information either doesn’t bother them and only 2% indicated that they enjoy reading it.

It goes on to quote a researcher's comment that

the Australian Do Not Call Register compares poorly with other jurisdictions. In the US the renewal requirement was dropped in 2007 and registration is now permanent. Registration is also permanent in India, Spain and the UK. A major problem with the renewal requirement is that it adds regulatory burden, complexity and expense to a system that is supposed to be simple and inexpensive… (the renewal) process will be very ineffective and inefficient, as it is unlikely any registered consumers will suddenly wish to receive telemarketing calls. (In any case, a consumer can remove their number from the Register at any time if they have a change of heart about telemarketing)… There is no evidence that any of the Do Not Call Registers in jurisdictions without renewals have become ‘clogged’ with obsolete information.

INSLM

The latest - and quietly eloquent - report by the Independent National Security Legislation Monitor [PDF] indicates that

Chapter II describes the not completely straightforward international setting in which Australia is obliged to have legislation to counter terrorism financing. 

Chapter III deals with the important provisions of the Charter of the United Nations Act 1945 (Cth) (“UN Charter Act”), being part only of such legislation. The many detailed recommendations made in it are largely directed to enhancing powers (including offence provisions) so as to produce a better fit of these provisions with the other mainstream CT Laws. 

Chapter IV deals with offences under the Criminal Code Act 1995 (Cth) (“Criminal Code”) concerned with financing etc terrorism, and in particular, the system of listing, designation or proscription of terrorist organisations. The system should be streamlined so as to permit the Attorney-General to act more expeditiously than is presently possible in light of practice under the relevant inter-governmental agreement. The controversial approach of listing only part of an organisation as terrorist should stop: an organisation has the character of being terrorist or it does not. Where there are presently partial listings, consideration should be given to replacing them with listings of the whole of those organisations as terrorist organisations. 

Chapter V questions the design of the Criminal Code offences concerning associating with terrorist organisations. Exceptions based on close family or public religious associations should not be available to remove criminal liability. But the relevant provisions should provide an exception for humanitarian activities under the aegis of respected organisations such as the Red Cross. 

Chapter VI doubts the efficacy of our terrorism financing legislation, not so much by reason of defects in design as because there are no persuasive empirical data. We do not really know whether any terrorist activities anywhere have been constrained by Australia’s rarely applied terrorism financing laws. Chapter VII examines the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (“NSI Act”). On balance, it is a worthwhile contribution to meeting the perennial challenge of reconciling the public interest in the proper administration of justice and the public interest in national security. The improvements recommended, while considered valuable by the INSLM, are not fundamental – except that which recommends its extension to all classes of proceedings in which national security considerations with respect to Australia’s counter-terrorist activities may arise.

The Monitor (Brett Walker SC) refers to "existential questions" about the INSLM. He comments that

the questions that the INSLM is required to address about the CT Laws involve value judgements. The facts of the administration and exercise of the powers and authorities under the CT Laws, that would provoke and inform those judgements, change with time and experience. Fourth, considering the effectiveness and appropriateness of the CT Laws is not best carried out by a solitary person. As I have recorded previously, and again in this Report, officers of the Commonwealth and many scholars and other commentators, as well as my professional colleagues, are essential sources of experience, opinion and testing, in carrying out the INSLM’s statutory functions. That exposure and consideration takes time. 

For these reasons, and in this sense, the three INSLM’s Annual Reports to date are cumulative, intended to be understood together. In that context, given the continued level of terrorist threat, it is appropriate to note the following examples of previous recommendations (all in the INSLM’s Second Annual Report) to enhance the CT Laws with respect to their effectiveness in countering terrorism. Recommendation II/4 was for consideration of authorizing control orders against persons convicted of terrorism, after their release from any imprisonment to which they have been sentenced, if they are shown to have been unsatisfactory with respect to their rehabilitation and continued dangerousness. The intention was to make available a form of protection against the threat posed by such proven offenders, upon their release into the community. The proposal was for a much more simply obtained form of control order than is presently the case, including for such proven offenders. It drew on established analogues with respect to recalcitrant sexual offenders. When the recommendation was made, there were about ten terrorist convicts already released, and about thirteen still imprisoned, of whom about three are quite likely to be released in the next five years. 

Indirect support for such an approach may be seen in the following UK experience. The Court of Appeal of England and Wales has considered notification requirements (imposed for 10 years from the date of release from imprisonment) on convicted terrorists. The Court held the notification requirements to be appropriate and not disproportionate, and upheld them as compliant with the European Convention on Human Rights. The Court held that the scheme is not disproportionate when set against the legitimate aim of the prevention of terrorism and considering “the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists”. The Court held that terrorism offences fall into a special category and that “even if it is the case that there may be exceptional cases [where a terrorist offender can be said to pose] “no significant future risk”, their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this”. 

The Court held it was “important to keep in mind the gravity of the disorder or crime which is being sought to be prevented” finding that terrorism offences have unique features which compound concern (acts committed by someone motivated by extreme political or religious fanaticism) and if anything calls for a precautionary approach it is counter-terrorism. The INSLM’s recommendation was made on 20th December 2012. Nothing has come to the attention of the INSLM about any governmental or official response to it.

Recommendation IV/1 was to lower the requirement for the issue of ASIO questioning warrants, so as to eliminate the excessive last resort test and replace it with the satisfaction of the Attorney-General and the issuing authority that the issue was reasonable in all the circumstances. 

Again, the INSLM has heard nothing about a governmental or official response to this suggestion. It may be that no opportunity to obtain intelligence has been lost by the last resort test remaining the law, but that would hardly justify leaving the position as it is, given the unpredictable urgency with which such occasions are apt to arise. 

Recommendation VI/3 was for the exclusion from the definition of “terrorist act” of conduct governed by international humanitarian law concerning armed conflict. In effect, it would ensure the plain impossibility of terrorism being alleged against soldiers, including Australian soldiers. (Such persons being, of course, subject to the relevant laws of war including Australia’s own legislation with respect to war crimes and crimes against humanity.) 

A similar view has been expressed by the INSLM’s counterpart in the UK, Mr David Anderson QC, who is the statutory Independent Reviewer of Terrorism Legislation. In turn, the UK Independent Reviewer’s concerns and suggestions to this effect were expressly noted in the unanimous reasons of the UK Supreme Court in R v Gul [2013] UKSC 64 at [61], [62]. Their Lordships expressly noted the UK Independent Reviewer’s mention of the INSLM’s recommendation. The suggestion conveyed by it was one of those that their Lordships regarded as meriting “serious consideration”. 

Again, there is no governmental or other official response to this recommendation known to the INSLM. 

It should be said that the three recommendations noted above are not unique in the lack of response – there has been no apparent response to any of the twenty-one recommendations made on 20th December 2012 by the INSLM (nor indeed to any of the forty-seven recommendations made by the COAG Review of Counter-Terrorism Legislation delivered on 1st March 2013). 

The functions of the INSLM go no further than review, report and recommendation. The INSLM Act was enacted explicitly in recognition of the grave threat of terrorism and the significance of widespread concerns that the best balance be struck by Australia’s legislation to counter terrorism. When there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some scepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws. That would be, in the opinion of the INSLM, a regrettable atmosphere in which future and continued assessment and improvement of Australia’s CT Laws are undertaken.

He goes on to note that

The regrettable history of international non-achievement in relation to the definition of terrorism for the purposes of important international obligations has been touched on in earlier Reports. It produces something of an anomaly when considering the ensemble of Australia’s legislative responses to its international counter-terrorism obligations. In particular, the fact and nature of the differences between the definition of terrorism for the purposes of the Criminal Code and the definition of terrorism found in the Terrorism Financing Convention are difficult to justify. 

On the one hand, the Criminal Code definition, by means of the statutory term “terrorist act” and its detailed elements, broadens the concept by comprehending dangers beyond immediate threats to life and limb, and narrows the concept by requiring motive as well as purpose. On the other hand, the Terrorism Financing Convention, as discussed in Chapter II, includes one of the rare international agreements to define terrorism, focussing on threats to life and limb but content with intimidatory political purpose without requiring ideological motive. 

However, the listing system under sec 15 of the UN Charter Act does not rely explicitly on the Terrorism Financing Convention, and so the lack of a definition of terrorism in the UN Charter Act itself is unlikely to be easily supplied by judicial borrowing from the Terrorism Financing Convention. Rather, the approach, as noted above, looks to 1373 and the like. Unfortunately, 1373 notoriously lacks any definition of terrorism. 

A major reason for the Criminal Code to have defined terrorism was the lack of a definition in 1373. In principle, even if there had been a definition of terrorism in 1373, as a matter of international practice and explicit expectation in 1373 itself, Australia would in any event stipulate a definition for the purposes, and in the style, of Australia’s municipal criminal laws. As it was done, it has the defect of including motive, leading to the INSLM’s Recommendation VI/1 in the Second Annual Report. 

Does the definition of terrorism in and for the purposes of the Criminal Code also provide the definition for the UN Charter Act? Are they cognate statutes so as to share the meaning and central concepts? (Both the Criminal Code definition and Part 4 of the UN Charter Act, lacking its own definition, were enacted in 2002 by the Suppression of the Financing of Terrorism Act 2002 (Cth)). One technical difficulty in the way of that solution is the apparently designed absence of the Criminal Code definition from the UN Charter Act provisions. One strong indication in favour of that solution is the common route in 1373. 

These fundamental questions should not be left in this much doubt. As neither 1373 or the UN Charter Act define “terrorist act” it is unclear what definition of terrorism is to be applied in determining which individuals or entities must be proscribed, and which assets may be proscribed, under sec 15 of the UN Charter Act. While Art 2(b) of the Terrorism Financing Convention contains a definition of “terrorist act”, the Australian legislature made the decision to implement the Convention by applying the definition of “terrorist act” under sec 100.1 to the terrorism financing offences in the Criminal Code. 

The definition of “terrorist act” forms the basis of the definition of “terrorist organisation” under the Criminal Code - an organisation “directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act” or where the organisation is proscribed by regulation, an organisation meeting that definition or who “advocates the doing of a terrorist act”.There is no policy reason for different definitions of “terrorist act” to apply to the proscription régimes under the UN Charter Act and the Criminal Code. The merits of carving out conduct covered by the law of war from the definition of terrorism were canvassed in the INSLM’s Second Annual Report. It was recommended that there be an exclusion of such conduct. It is to be noted that, as well as the Canadian precedent discussed in the INSLM’s Second Annual Report in this regard, the terms of the Terrorism Financing Convention (discussed in Chapter II) efficiently accomplishes the same carve out. 

Another defect in the Criminal Code definition of terrorism is its failure explicitly to include hostage taking, notwithstanding the strong international and operational reasons for doing so, noted in the INSLM’s Second Annual Report. 

The virtue of consistency in the definition of terrorism for the purposes of all of Australia’s legislative responses to the evil of financing terrorism is self evident. It is not, however, so great as to mandate resort to a defective definition, consistently. But the unsatisfactory and unjustified difference between the position under the UN Charter Act and the position under the Criminal Code should not continue. It bespeaks a badly crafted legislative exercise. It would be better if the central definition was improved, and then made uniform in all contexts to which it should apply. 

It bears emphasis by repetition that improvements to the definition of terrorism in the Criminal Code recommended in the INSLM’s Second Annual Report are straight forward. They can be summarized as follows. The removal of motivation as opposed to purpose would ease the burden of prosecutors and reduce if not eliminate invidious evidence and argument. The inclusion of hostage taking would reflect the weight of international opinion and practice, and meet the vicious conduct of current terrorists. The carved out for armed conflict covered by International Humanitarian Law would usefully advance the coherent and principled placement of counter-terrorist legislation in the context of international control and disapproval of certain forms of violence. 

Nor has there been any official presentation of a view hostage taking should not be regarded as potentially terrorist. Meanwhile hostages continue to be taken by terrorists internationally, such as the Libyan Prime Minister in October 2013. 

In short, last year’s recommendations were designed to sharpen the legislative response by Australia to terrorism. They were the opposite of slackening the national resistance to terrorism. The entire lack of any response to them officially, in the context of the publication of them being officially delayed until the very last moment, raises existential questions about the rôle of the INSLM. 

Be that as it may, the position produced by official inaction involves a dual but conflicted recommendation for consistency, of a better definition of terrorism than presently exists.

Character, admission and the legal profession

'Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers' by Francesca Bartlett and Linda Haller in (2013) 41(2) Federal Law Review 227 comments that

Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's 'suitability' for professional practise; also referred to as the 'character test' of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission. 

This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that. ...

Do these discrepancies in state disclosure rates, and process practices, really matter? We would argue, at least, that the consequences of these differences may be significant. For instance, it is possible that in Victoria, and Queensland, authorities consider the admission process an important educative opportunity in which new lawyers reflect on professional and personal ethics, particularly when they conflict with a personal desire to hide embarrassing information. Even the process of admission is considered part of the ethical 'education' of applicants. Applicants are expected to reveal very personal and minor matters and are perhaps judged more harshly should they not do so.  In contrast, NSW admission authorities appear to place greater responsibility on applicants themselves to self-filter and only disclose serious matters. The lack of any need to publish notice of an intention to seek admission in NSW means there is also no threat from third parties of further disclosures in that state. The experience of admission in NSW may consequently be less adversarial, invasive and paternalistic. It may provide a solution to the critiques offered by Rhode and other commentators. On the other hand, if there is some merit in the 'character test', it is arguable on the basis of 2009 national data that NSW potentially has more 'unsuitable' applicants slip through their admission process than in Victoria. At the lowest, it has arguably signalled to the public a negligible role for the character test in that state.  We query whether local legislatures intended to produce substantively different results across Australia. The jurisdictions considered introduced a form of national legislation in the Model Laws. The relevant Acts allow for the common law to concomitantly govern in this area, which is ostensibly similar across Australia. We argue that one explanation for the discrepancies lies in the symbiotic relationship of the courts and those agencies who administer law. In Victoria, the expansive approach in the jurisprudence has engendered a rigorous process adopted by the admitting authority which has been communicated to those applying for admission. Until recently, there was no guidance from the authority and applicants had to rely on case law. This is generated when an applicant appeals a refusal of the Legal Profession Admission Board to issue them with the compliance certificate they require for admission or the NSW Bar Association or Law Society of New South Wales appeals a decision to grant a certificate.There appear to be fewer such appeals relative to the number of applications in NSW, which might actually flow from a less demanding admission process (requiring fewer disclosures) than in other jurisdictions.The NSW picture appears to be that only very significant matters will be relevant to disclose. 

State courts almost exclusively refer to only local case law when deciding admission cases, making the influence of precedent from other parts of Australia opaque. This, together with the confluence of factors described above, has produced large disparities across the jurisdictions considered. At the very least, we argue that there is a need for a more transparent and consistent approach to admission in Australia. Some would say these differences are nothing to be concerned about and simply reflect the healthiest aspects of a federated state-based admission system. We disagree for a number of specific reasons. 

First, we believe there is no justification for the lack of transparency that occurs in most states and territories as to applications processed each year. We applaud the detailed reporting that emanates from Western Australia and efforts of LACC. This not only provides transparency but also guides future applicants as to the sorts of matters that may require further explanation to admission authorities, and the type of procedural steps (decision on the papers, informal chat with the Convenor, or formal adversarial hearing) that they are likely to expect. We do not call for confidential information to be published. Rather we ask for reporting of key indicators such as how many applications are refused each year; generic descriptions of the reasons for denial; rates of disclosure by applicants, the general nature of such disclosures and how they are classified. 

Second, we are concerned that, at the same time that the process lacks transparency, paradoxically, it lacks privacy. For instance, there are examples of the process being far from private. In a recent Victorian professional disciplinary case that identified the individual involved, the Supreme Court mentions oral hearings conducted by the admitting authority and its deliberations as to whether to admit the candidate over an incident of student misconduct. Despite the Board's concerns about character, the Court ultimately admitted the candidate. Thus it seems even matters which do not bar admission can haunt a person professionally and lead to a slippage of confidential information. Relatedly, we have particular concerns about what the perception of a lack of privacy might mean for disclosures relating to mental illness. We are also concerned about the apparently adversarial and invasive nature of such inquiries. We suggest that concerns about maintaining privacy are best dealt with by taking 'capacity' concerns out of the 'character' test. LACC makes a similar recommendation. As Bauer recommends, what is needed is close scrutiny of process. 

Third, we are concerned about the lack of coherence and clarity concerning the implications for applicants revealing a history of mental illness. It appears that there are very different standards and practices across the three jurisdictions considered. Victorian, NSW and Queensland guidelines now state that:

if an applicant makes a full disclosure of a condition relevant to capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.

This form of clarification for future applicants is welcomed. However, applicants may read cases like XY v Board of Examiners as a continuing indication that mental illness disclosures will result in differential treatment. In this regime, there may yet be claims of unlawful discrimination as in the United States if decisions are made on the basis of status. While NSW and Queensland apply a different test, we remain concerned about the lack of certainty as to its scope, particularly in the light of Doolan v Legal Practitioners' Admission Board which provides no guiding principle. 

Finally, we are concerned that the admission process discriminates so dramatically between law graduates depending upon the state in which they seek admission. If this becomes well known, it is foreseeable that there may be forum shopping. On the eve of uniform legislation in NSW and Victoria, we should take this opportunity to discuss this as a national issue. One approach is to consolidate the admission standards and process. Under the LPNL, the National Legal Services Board is empowered to decide who will be admitted by issuing 'compliance certificates' to the state court. The state courts would still retain a power to refuse to admit a person, but there would be a strong, public disincentive to act in a way that is unjustifiable as there is a requirement to report reasons. As this process is centralised, more anonymity for applicants can be seen to be, and actually, accorded. We concede that this structural change to admission may not be part of any enacted version of the LPNL next year. However, it provides a useful example of how a 'uniform' legislative approach could produce positive results. As it stands for the foreseeable future, applicants for admission across Australia will continue to be subject to variable approaches to their 'character', if and when they ask to join the legal profession.

Investigation and Privilege

'Data Protection in the Context of Competition Law Investigations: An Overview of the Challenges' (Tilburg Law School Research Paper No. 020/2013) by Monika Kuschewsky and Damien Geradin comments -

The interface between data protection law and competition rules has become a growing area of interest for companies and lawyers. First, in the course of unannounced inspections (the so-called "dawnraids"), European Commission and national competition authority officials typically review company records and search employees’ e-mails and electronic files and records (including those which people thought had been deleted). They will make hard and/or soft copies of relevant documents and in certain cases may even seize entire hard discs. This raises the question of whether such intrusions are compatible with data protection rules and thus which restrictions such rules impose on the ability of competition officials to collect and process data seized during inspections. Another intersection between competition law and data protection law arises where companies need to collect and further process data from their employees to respond to a competition authority’s request for information or a statement of objections in the course of a pending competition law investigation. Companies may also wish to access and review e-mails and other employee records so as to uncover potential competition law infringements (e.g., in the context of a compliance programme) or to prepare a leniency application.

Against this background, this paper seeks to identify the limits that may be placed by data protection law on competition authorities, on the one hand, and companies, on the other hand, to collect and further process personal data in the context of competition law investigations.

This paper is divided into four sections. Section II briefly sets out the legal framework for data collection and processing in the EU. Section III explains the key data protection principles and Section IV identifies the key players in the context of EU data protection law. Section V elaborates on the key data protection principles and how they apply to competition authorities on the one hand and companies on the other hand. Section VI discusses the legal consequences of non-compliance with data protection rules. Section VII concludes.

'The Applicability of Privileges to Employees’ Personal E-Mails: The Errors Caused by the Confusion between Privilege Confidentiality and Other Notions of Privacy' (UC Davis Legal Studies Research Paper No. 362) by Edward J. Imwinkelried states -

Americans will generate approximately seven trillion e-mails this year. Each year employees send hundreds of billions of e-mails from their work accounts. Some of these e-mails relate to personal matters, including communications with spouses and confidants such as attorneys and therapists. Yet, many employers have formal policies both prohibiting personal use of the work account and reserving the employer's right to monitor e-mails sent through the work account.

The question has arisen whether the traditional privileges such as attorney-client and spousal attach to e-mails sent through the employee's work account. Does the employer policy negate the confidentiality ordinarily required for the privilege to attach?

That general issue has triggered a number of splits of authority. Two are especially noteworthy. One question is whether the same confidentiality standard applies whether the employee is asserting the privilege against the employer or a third party. Some courts have indicated that the employee may invoke the privilege against a third party even when the employee could not assert the privilege against the employer. A second question is whether the existence of an employer policy automatically precludes privileges from attaching. Some courts have adopted a flexible, multi-factor test including such considerations as whether the employer actually monitors or has made inconsistent representations to the employee. However, other courts -- the majority -- have ruled that the existence of the employer policy is dispositive, precluding any privilege claim by the employee.

This article criticizes the view that the confidentiality standard varies as well as the view that the existence of an employer policy is dispositive. Both views distort the basic concept of confidentiality. The first view is flawed because the concept of confidentiality requires the holder's intent to exclude all parties outside the circle of confidence. The employer is not within the circle including the employee and his or her confidant. Thus, if the employee impliedly consents to the employer's monitoring, there is no privilege to assert -- whether the opposing litigant is the employer or a third party. The second view is equally unsound. That view confuses the normative meaning of reasonable expectation in Fourth Amendment jurisprudence with the factual meaning of reasonable expectation in privilege law.

Confidentiality is the central concept in modern privilege law. Three quarters of the published opinions addressing privilege issues turn on the confidentiality concept. The courts must resolve the modern disputes over the applicability of privileges to employees' e-mails on work accounts without distorting that basic concept.

Juries

'Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions' by Anna Roberts in (2013) 98 Minnesota Law Review 592 comments that

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This Article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror exhibits individual bias, he or she can be excused for cause. If the state presumes embitterment in the absence of any showing of individual bias, it can exercise peremptory challenges. These are finite in number, and thus exact a litigation cost that may incentivize reform. A rich body of recent scholarship proposes adjustments to prosecutorial incentives in other areas of the criminal justice system; this Article adds a focus on jury exclusion to that literature, and to other recent policy critiques.

Smuggling

'Prosecution and Punishment of People Smugglers in Australia 2008-2011' by Andreas Schloenhardt in (2012) 40(1) Federal Law Review 111 offers

an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of 'typical' people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change

Schloenhardt comments that

If prosecutions are to have any impact on people smuggling ventures to Australia, the focus must be shifted from prosecuting those at the end of the chain to those higher up in the organisations who arrange for, and profit from, those ventures. Between 2008 and June 2011, only two organisers — Messrs Ahmadi and Olong, who were extradited from Indonesia and Thailand respectively — were successfully prosecuted, and one of those, Mr Ahmadi, was at most a 'middleman', not a primary organiser. The gaoling of these offenders, whose conduct in organising multiple boats brought hundreds of passengers to Australia, prevented them from engaging in further people smuggling operations, which had been their intention. Although the typical offenders' conduct in undertaking the final voyage to Australia remains important as the final step in the people smuggling process, they are essentially the 'sacrificial lambs of the people smuggling industry', allowing the organisers to profit from their trade while staying out of the reach of Australian authorities. 

Leaving questions of the effectiveness of incarceration and recidivism aside, the people smuggling activity which Australia's laws are designed to 'target and deter' could be more effectively disrupted by tracking down the organisers, incapacitating their operations (at least temporarily), and preventing them from continuing the practice of recruiting poor fishermen to take the passengers to Australia. The time, money and effort involved in prosecuting and gaoling hundreds of Indonesian fishermen would be better invested in investigating, extraditing and prosecuting the organisers who put them to the task in the first place. 

Second, the prosecutions have not been successful in deterring individuals from engaging in offending of this type. Many impoverished fishermen continue to be targeted and continue to be persuaded by the offer of large sums of money to take passengers to Australia. Australian policymakers should take note of the reservations in relation to the effectiveness of general deterrence in the context of people smuggling offences expressed by some sentencing judges. It is extremely doubtful that the fishermen who are targeted by organisers, who are often illiterate and living in isolated villages, will be aware of, let alone be deterred by, the tough penalties imposed for people smuggling offences. This concern has been expressed in many sentencing remarks and is shared by many experts in the field.  

Australia must therefore rely on other means to ensure that Indonesians are aware of Australia's tough penalties for people smuggling offences, particularly those who are at risk of being targeted by organisers. It is worth noting that the Commonwealth government launched an AUD4 million education campaign in Indonesia in 2010 intended to reinforce the message that there are tough penalties for people smuggling offences, but this has been met with a mixture of enthusiasm in some of the villages that have been targeted and cynicism in others. Those formulating public awareness campaigns must bear in mind Indonesia's diversity of language and culture, and the poverty afflicting many of the small islands comprising its archipelago. 

Third, the mandatory minimum penalties provision has forced sentencing judges to impose sentences which are greater than the circumstances would otherwise justify. Because, according to the usual principles of sentencing, the appropriate sentence in these cases was frequently a lesser sentence than the mandatory minimum, the mandatory minimum sentence has been applied to all offenders who fall within that class. As a result, principles of parity between people smuggling offenders have been compromised. The recent decision in Bahar v The Queen has allayed these concerns somewhat, but this has come at the cost of potentially even more unjust sentences for individual offenders (which is what the earlier approach sought to avoid). 

Given that the two organisers who were prosecuted during the period studied, Messrs Ahmadi and Olong, were sentenced according to the usual sentencing principles and were given head sentences equal to or greater than the mandatory minimum now required, there is little support for the view that courts would impose lighter sentences on organisers, whose culpability for the offending is substantially greater than the typical offender, in the absence of a statutory minimum. 

The fear, it seems, is that courts would return to the pre-2001 practice of applying the usual sentencing principles in relation to the offenders who make up the majority of people smuggling prosecutions and impose sentences which, in the eyes of the Commonwealth government and the Opposition, appear too lenient. It is, however, implausible that Parliament genuinely considers these typical offenders deserving of sentences 'completely out of kilter with sentences handed down ... for offences of the same or higher maximum sentences involving far greater moral culpability including violence causing serious harm to victims',  as the mandatory minimum provision requires courts to impose. Rather, the retention and extension of the mandatory minimum sentence to a broader range of circumstances for people smuggling offences by a government which is — rightly or wrongly — popularly blamed for the surge in people smuggling ventures since September 2008, seems designed for the same purpose which motivated the introduction of mandatory minimum sentences by the former government in 2001: to appear 'tough' on people smugglers. 

That is wrong. Judges' sentencing discretions should not be curtailed for political purposes. In the context of people smuggling offences, it has required courts to impose heavier sentences than would be proper according to the circumstances. The mandatory minimum provision should be removed so that offenders can be sentenced appropriately and according to basic principles of fairness and justice.

Adoptions

The Australian Institute of Health and Welfare has released Adoptions Australia 2012-13 [PDF], its annual report on adoptions.

In summary

• Australian adoptions increased while intercountry adoptions declined, with the number of finalised adoptions in Australia increasing slightly to 339, up from the previous year's all-time low of 333. Compared with 2011-12, the number of children adopted from Australia in 2012-13 increased by 26; the number adopted from overseas decreased by 20. In 2012-13, more Australian children (62% of all adoptions) were adopted than children from overseas (129, excluding expatriate adoptions). 
• Despite the small increase in the number of adoptions in 2012-13, there has been a substantial long-term decline, down 32% since 2003-04, and down 77% since 1988-89 (when there were 1,501 adoptions). This is attributed by the AIHW in part to legislative changes, such as the increased use of alternative legal orders in Australia, and to broader social trends and changing social attitudes which have made it easier for children to remain with their birth family or within their country of origin. 
• The proportion of infants adopted from overseas continued to decline.  Although 78% of children adopted from overseas were aged under five, the proportion of infants aged under 12 months continued to decline-from a peak of 47% of all intercountry adoptions finalised in 2005-06 to 19% in 2012-13. 
•  The number of finalised intercountry adoptions has declined from most countries of origin in recent years. However, the number from Taiwan has increased substantially-from 3 adoptions in 2003-04 to 37 in 2012-13. This meant that Taiwan became the main country of origin for overseas adoptions for the first time in 2012-13 (overtaking the Philippines and China, which have shared this position over the last decade), comprising 29% of all intercountry adoptions. 
• Intercountry processing times continued to rise, with the median length of time for the overall adoptions process increasing from 37 months in 2007-08 to 61 months in 2012-13. This was due to an increase in processing times in countries of origin. The time taken from when an applicant's file was sent overseas to when a child was allocated to the applicant increased from 19 months in 2007-08 to 37 months in 2012-13. 
•  Children in local adoptions tended to be younger:  in 2012-13, children who were the subject of a finalised local adoption tended to be younger than those adopted from other countries - all were aged under five and 48% were aged under 12 months. 
•  Adoptions of Australian children by 'known' carers continued to increase The 81 adoptions in 2012-13 by 'known' carers, such as foster parents (52% of all known adoptions), represented a 10-year high for this type of adoption and was more than triple the 25 such adoptions in 2003-04.