Lawyers and ASIO

The redacted Inquiry into the attendance of legal representatives at ASIO interviews, and related matters report [PDF] by Australia's Inspector-General of Intelligence and Security (IGIS) reflects a complaint from the Refugee Advisory and Casework Service (RACS) alleging inconsistent and arbitrary practices by the Australian Security Intelligence Organisation (ASIO) regarding the attendance of legal representatives at security assessment interviews.

RACS argued that that ASIO officers had no legal basis to exclude lawyers from interviews, as

•  there is no express statutory power in the Australian Security Intelligence Organisation Act 1979 (Cth) or Migration Act 1958 (Cth) to exclude legal representatives from security assessment interviews for protection visa applicants 
• the exclusion of a legal representative from a security assessment interview could amount to a denial of procedural fairness 
• there is no express power given to ASIO to require a lawyer who attends a security interview to sign a confidentiality undertaking 
• case law indicated that investigative bodies (for example, the National Crime Authority and the Australian Securities Commission) could exclude a particular lawyer, for example where the organisation was satisfied on reasonable grounds that the particular lawyer would prejudice the proceedings. 

IGIS comments that

ASIO provided me with detailed advice on the requirements of its current policies and procedures in respect of voluntary interviews, including security assessment interviews. The full text of these documents is afforded a national security classification and cannot therefore be included in this abridged report.

In summary, the guidance provides that ASIO officers cannot prevent an individual requiring the presence of their lawyer at a voluntary interview. Where an interviewee requires the presence of their lawyer, ASIO should request the contact details of the lawyer and their firm, as well as an undertaking of confidentiality. However, if interviewing officers assess that the presence of the lawyer is counterproductive to the conduct of the interview, they may inform the interviewee and, if appropriate, terminate the interview.

I understand the policy as instructing ASIO officers to work from a starting premise that the attendance of a lawyer will not be problematic, unless sound reasons exist for thinking otherwise.

I also understand that the attendance of legal representatives at ASIO interviews has not been a common occurrence, to date..

IGIS goes on to conclude that

• Having regard to the legal opinion provided to me by RACS and other relevant material provided by ASIO, I consider that ASIO’s internal guidance is both sound and appropriate in the circumstances.
• the attendance of a legal representative at an ASIO interview is not likely to be necessary on the basis of the vulnerability of an interviewee, but their presence could protect ASIO from claims of inappropriate questioning or conduct by ASIO interviewing officers.
• Recorded interviews showed that, on occasion, ASIO officers discussed the proposed presence of a lawyer at an interview, with the interviewee and/or the lawyer, for up to 30 minutes. More than one lawyer who provided statements to this inquiry claimed they felt that ASIO had placed significant pressure on them to discontinue their request to attend the interview with their client.
• I believe that ASIO has had an apparent practice of discouraging the attendance of lawyers at interviews, which seems inconsistent with the intent of its internal guidance. In my view this practice is inappropriate unless the interviewing officers have a specific basis for believing that the lawyer’s attendance may be of security concern.

IGIS also expressed concern regarding the written confidentiality agreement -

• the agreement sets out potentially relevant and complex statutory provisions, but is provided to the person at the interview who does not have time to consider it fully and understand obligations. 

• the document is incomplete. In particular, subsections 79(2) and 79(3) of the Crimes Act 1914 (Cth) make no sense without a definition of what is ‘prescribed’. In any event, a prudent lawyer would need to have regard to the provisions in context to understand their obligations. This problem would not be so acute if the undertaking was provided prior to the interview so that a person had some time to examine it. 
• as the confidentiality obligations are ongoing, there should be a clear requirement to provide the signatory with a copy so that they can continue to have regard to it. 
• In a preliminary draft of this report, I noted that the unsigned template is not a confidential or classified document and, in my view, there is no reason why it could not be made generally available before the interview. ASIO has subsequently undertaken to provide new guidance to its officers, stipulating that interviewing officers must provide sufficient time at the start of an interview for the legal representative to read, clarify and understand the agreement; and they must take duplicates of the document with them to enable one copy to be left with the signatory.

IGIS makes five recommendations (with ASIO agreeing to  R1 through 4 and in part to R5) -

R1: ASIO should work with the Department of Immigration and Border Protection (Immigration) to ensure that: (a) when making interview arrangements in Australia, visa applicants are specifically asked whether they want to have a legal representative attend (b) the lawyer’s personal details are obtained by Immigration and passed to ASIO (c) a decision is made about whether the lawyer may attend and is conveyed prior to the day of interview.

R2: ASIO should: (a) review its training to reinforce that the attendance of a lawyer at a security assessment interview is not to be considered problematic, unless sound reasons exist for deciding otherwise (b) ensure that decisions about whether a lawyer may attend an interview are considered and recorded on a case-by-case basis (c) ensure that in the absence of a specific cause for concern, interviews should commence without efforts by interviewing officers to discourage the attendance of a legal representative.

R3: ASIO should: (a) clarify the status of any person who wants to attend an interview to ascertain whether they are the interviewee’s legal representative (b) further consider whether migration agents should be accorded the same status as lawyers, with their attendance at interviews being addressed on a case-by-case basis.

R4: ASIO should: (a) provide guidance for interviewing officers on when a written or verbal confidentiality undertaking should be requested from a person (b) provide the template undertaking document to attendees before the interview commences (c) provide a copy of a written undertaking to the signatory.

R5: The details of this recommendation are afforded a national security classification and cannot be included in this abridged report. 

Disclosure

An Empirical Method for Materiality: Would Conflict of Interest Disclosures Change Patient Decisions? (Arizona Legal Studies Discussion Paper No. 14-02) by Roy G. Spece Jr., David V. Yokum, Andrea-Gale Okoro and Christopher T. Robertson comments

 The law has long been concerned with the agency problems that arise when advisors, such as attorneys or physicians, put themselves in financial relationships that create conflicts of interest. If the financial relationship is “material” to the transactions proposed by the advisor, then non-disclosure of that information may be pertinent to claims of malpractice, informed consent, and even fraud, as well as to professional discipline. In these sorts of cases, materiality is closely related to the question of causation, roughly turning on whether the withheld information might have changed the decision of a reasonable advisee (i.e., patient). The injured plaintiff will predictably testify that the information would have impacted his or her choice, but that self-serving testimony may be unreliable. The factfinder is left to speculate about the counterfactual world in which the information was disclosed. 

This Article shows how randomized vignette-based experimentation may be a valuable form of evidence to address these questions, for both litigation and policymaking. To demonstrate this method and investigate conflicts of interest in healthcare in particular, we recruited 691 human subjects and asked them to imagine themselves as patients facing a choice about whether to undergo a cardiac stenting procedure recommended by a cardiologist. We manipulated the vignettes in a 2×3 between-subjects design, where we systematically varied the appropriateness of the proposed treatment, which was described in terms of patient risk without the procedure (low or high), and manipulated the type of disclosure provided by the physician (none, standard, or enhanced). We used physician ownership of the specialty hospital where the surgery would be performed as the conflict of interest, disclosed or not, and the “enhanced” disclosure included information that such relationships have been associated with biases in prescribing behavior. 

We found that the mock patients were significantly less likely to follow the cardiologist's recommendation of surgical implantation of a drug-eluting stent when he disclosed a financial conflict of interest, regardless of whether the disclosure was standard or enhanced. We also found that the mock patients were more likely to choose the treatment when they faced greater risk without it. We did not, however, find that the disclosure made patients more discerning about the appropriateness of the procedure. 

We discuss the implications for law and policy. Mock patients seem likely to act upon such information, declining the low-value healthcare when conflicts are disclosed. This finding suggests that the information is material to such transactions, and that disclosures may be salutary for medical decisions. Arguably, therefore, physicians already have a duty under the common law to disclose the financial relationships they choose to accept. Other regulators and policymakers should recognize and clarify this duty, and courts should embrace this form of evidence. Methodologically, although this empirical approach has limits, it reduces speculation by factfinders and policymakers, focusing their attention on the right questions at least.

Kidney Transplants

Last year I noted I. Glenn Cohen's 'Transplant Tourism: The Ethics and Regulation of International Markets for Organs' in (2013) Journal of Law, Medicine & Ethics 269-285. 'Reverse Transplant Tourism' by Kimberly D. Krawiec and Michael A Rees in (2014) 77(3) Law and Contemporary Problems describes what the authors characterise as

 a novel form of kidney swap, which we label “Reverse Transplant Tourism.” This proposal has the potential to increase the number of successful transplants in the US at a time of great need, while reducing costs. It also will provide benefits to impoverished international patients with willing, compatible donors who otherwise would have no access to transplantation. Instead of non-US kidney donors being offered money through a black market middleman in exchange for one of their kidneys, Reverse Transplant Tourism would provide a legal and ethical exchange of living donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love, while also helping a US pair who would otherwise be unable to transplant due to biological incompatibility.

The authors indicate that

The new approach involves cross-border kidney-paired donation, which we label “Reverse Transplant Tourism,” or “RTT.” Though RTT is currently still a hypothetical – to date, no RTT swaps have been performed – we argue that such a program, if properly structured, is both legal and ethical, and is a natural next step in the development of kidney exchange. 

Kidney exchanges, in which patients with willing but incompatible living kidney donors exchange their donor’s kidneys, have become common in the United States. RTT takes this approach a step further, by redefining incompatibility to include not only immunological barriers, but also a more prevalent incompatibility when transplantation is considered worldwide—the barrier of poverty. In the United States, there are many patients with kidney failure (end-stage renal disease, or “ESRD”) who have insurance to pay for a transplant, but whose donor has the wrong blood type or HLA antigens and thus is not immunologically compatible. In contrast, there are many poor patients outside of the United States with willing compatible living donors, who are not able to afford the immunosuppression necessary to sustain a renal transplant. In both these cases, the patients have barriers that prevent the transplant from moving forward. 

RTT, if properly structured, can provide an opportunity for impoverished foreign patients to overcome their financial barrier and for American recipients to overcome immunological barriers through an international exchange of kidneys. The use of biologically compatible pairs also expands the donor pool in important ways, with particular benefits for O blood type recipients and sensitized recipients. Moreover, RTT reverses some of the more pernicious effects of typical transplant tourism, in which a (comparatively wealthy) individual with ESRD travels abroad, normally to a comparatively poor country, to purchase organs for transplantation. These black market transactions have been widely condemned as a commercialization of organ transplantation that results in a net outflow of organs from the developing world to the developed (with accompanying cash flows in the opposite direction) under conditions that guarantee no protections for either donor or recipient. 

RTT, in contrast, leverages the donative intent and reciprocity of friends and family inherent in the kidney paired donation model to avoid the “organ deficit” of traditional transplant tourism – under RTT, organ flows out of each country are matched with inflows. RTT also extends the benefits of the US transplant system to impoverished nations, allowing patients who could never afford a kidney transplant to obtain one. The “reverse” in Reverse Transplant Tourism thus carries a double meaning, one geographic and the other figurative. 

Imperative to developing a proper structure for RTT will be to partner with countries that have enough infrastructure available to their citizens to ensure that ongoing transplant-specific medical care is available and local conditions are not hazardous to an immunosuppressed patient, so that the kidney transplant for the impoverished patient is not lost from preventable causes. Other safeguards could include patient screening protocols, standards and procedures to ensure organ quality, and firewalls between the non-profit funder and participating transplant centers and, eventually, between the nonprofit and any insurance and pharmaceutical companies that may provide funding. 

Part II introduces the concept of Kidney Paired Donation (“KPD”) and an increasingly common variant, Altruistically Unbalanced Kidney Paired Donation (“AUKPD”), arguing that RTT is less ethically controversial in some respects than AUKPD, because neither RTT pair could successfully transplant in the absence of a swap. Part III details our RTT proposal, illustrating the mechanics and expenses of the exchange. Part IV analyzes RTT’s permissibility under the National Organ Transplant Act (NOTA), concluding that RTT does not involve “valuable consideration” as contemplated by the statute. Part V considers the policy rationales that might motivate the ban against the exchange of valuable consideration for transplantable organs, concluding that RTT does not threaten any of these policy concerns and, in fact, improves on the status quo with respect to some concerns. Part VI discusses the numerous benefits of RTT, both to the individual patient participants and to the health care system more generally. Part VII discusses sustainability and safeguards, while Part VIII concludes.

'Trafficking in Persons for the Purpose of Organ Removal: International Law and Australian Practice' by Andreas Schloenhardt and Samantha Garbutt in (2012) 36(3) Criminal Law Journal 145-158 comments that

In international law, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children is the principal instrument to combat trafficking in persons for the purpose of organ removal. In 2011, Australia’s first investigation involving organ trafficking made headlines, raising questions about the application of relevant criminal offences and their compliance with international law. This article outlines international requirements and explores Australia’s legislative approach to criminalising organ trafficking in Div 271 of the Criminal Code (Cth). These offences are analysed in close reference to international law and best practice guidelines. The article concludes by developing recommendations to combat trafficking for the purpose of organ removal more effectively.

Food Labelling

I'm unpersuaded by 'The Magical Thinking of Food Labeling: The NLEA as a Failed Statute' from Diana R. H. Winters. It considers

the failures of the Nutrition Labeling and Education Act of 1990 (NLEA) and argues for its partial repeal. The NLEA was intended to improve the quality of information available to consumers about the food they bought and ate. At the time of its passage, awareness of the association between diet and health was increasing, and clear and accurate information about food was seen as a critical but simple way to provide people the opportunity to improve their health through nutrition. 

The Act has two parts. First, it mandates disclosure of certain nutrition facts — this includes the “Nutrition Facts” box that consumers have become used to seeing on packaged food. Second, it regulates claims made about how nutrients in the food affect human health (called “health claims,” and “nutrient content claims”) to ensure that such claims are based on scientific information. While the first part has succeeded in providing consumers with the mandated information, the second part has failed. Health claims on food are no more trustworthy than they were before the NLEA was passed, and may actually be less so. Indeed, health outcomes directly related to nutrition have worsened dramatically since 1990. 

The Act is ineffective and inefficient. The information available to consumers, even when presented in a manner compliant with the NLEA, is confusing and opaque. The Act and its regulations contain gaps that undermine the entire scheme. The amount of litigation regarding food labeling has increased, resulting in conflicting rulings regarding the continued vitality of state law in this arena. Moreover, the regulatory strategy of mandated information disclosure is itself weak. Even if the statute were perfectly written, so as to ensure that only claims supported by the best and most current scientific information were available to consumers, it is not certain whether the provision of clear and accurate nutritional information to consumers would actually be a factor in improving health. 

The Article advocates for the repeal of the health and nutrient content claim provisions of the NLEA. True policy improvement in the food-labeling scheme will not come about through incremental improvements to the NLEA’s health and nutrient content claims provisions. This problem should be dealt with by the states.

Revision of the statute, more vigorous enforcement,  better practice within industry and a wariness regarding the potential for regulatory arbitrage might of course be more effective.

'How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States: The Case of Needled Meat' by Winters in (2013) 65(2) Maine Law Review considers meat labelling, commenting

“Mechanical tenderization,” or “blade tenderization,” or “needling,” or “hammering,” is a process where tiny cuts are made in beef by needles or blades, which cut the connective tissue and immediately tenderize the meat. When meat is mechanically tenderized, it becomes more susceptible to contamination by pathogens that cause foodborne illness because the needles can carry bacteria, such as E. coli, into the interior of the meat, where it is harder to kill by cooking. After more than a decade of documented foodborne illness outbreaks related to mechanically tenderized meat and repeated calls by consumer advocates for the labeling of such meat, it appears that the Department of Agriculture is finally poised to begin requiring the labeling of needled meat. 

The regulatory history of mechanically tenderized meat is a window into a much larger issue, that of regulatory inertia and the inadequacy of existing mechanisms to counter this stasis. This regulatory inertia is the subject of this Paper, and it does not have a simple cause, nor is it amenable to a simple solution. It cannot be reduced to a problem of agency capture, or a problem with agency incompetence. 

Telling the story of the ongoing conversation on mechanically tenderized meat among the United States Department of Agriculture (USDA), the meat production industry, and interest groups representing the consuming public is important for at least two reasons. First, the focus on a food safety problem that is not well known to the public illustrates the commonplace nature of regulatory inertia, demonstrating that such cases are not confined to high-profile issues with elusive solutions. 

Second, this story demonstrates the ineffectual nature of private enforcement. Private enforcement, in the form of agency-forcing suits, should act as a counterpoint to agency delay and dysfunction, by subjecting agency action to judicial review. We expect the judiciary to oversee the process of regulatory fermentation, and to ensure that an agency makes its decisions in a timely, appropriate manner. Here, however, government, industry, and advocacy groups representing the consuming public have been discussing this issue for a decade while individuals continue to get sick. 

There is no simple solution to this problem, although I suggest several in the Paper. First, Congress should increase its use of statutory hammers. Hammers are legislative mechanisms that impose consequences on an agency that fails to act in compliance with a statutory mandate. 

Second, as suggested by other scholars, interest groups, including both regulated industry and those representing the consuming public should be able to petition the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget, to review agency inaction. Simply put, OIRA, which provides centralized review to certain major regulations to assess compliance with cost-benefit principles, is theoretically positioned to assume a larger role in reviewing agency inaction.

Rationalising Fair Use in Australian Copyright Law

The report of the Australian Law Reform Commission Copyright and the Digital Economy inquiry into Copyright has been tabled in Parliament.

The report indicates that -

The overall effect of the recommendations in the Report will be a more flexible and adaptive copyright framework. The introduction of fair use will mean Australian copyright law can be applied to new technologies and new commercial and consumer practices, without constant recourse to legislative change. Fair use will promote innovation and enable a market-based response to the demands of the digital age. The reforms will enhance access to cultural material, without undermining incentives to create. The recommended exceptions are also intended to be more consistent with public standards of fairness. 

What do the recommendations have in common? The ALRC considers that exceptions to copyright, whether in the form of a specific rule or a general standard, should only permit the unlicensed use of copyright material where this would be fair. It should therefore not be surprising that fair use and each of its illustrative purposes, and the handful of specific exceptions recommended in the Report, have much in common. Generally, they permit the unlicensed use of copyright material if this would: 

• serve an important public purpose; 

• stimulate the creation of new works and the use of existing works for new purposes; and 

• not harm rights holders’ markets—ensuring exceptions do not undermine the crucial incentive to create and publish copyright material.

The ALRC recommendations are -

 The Case for Fair Use 

R4–1 The Copyright Act 1968 (Cth) should provide an exception for fair use. 

The Fair Use Exception 

R5–1 The fair use exception should contain: (a) an express statement that a fair use of copyright material does not infringe copyright; (b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and (c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair use (‘the illustrative purposes’). 

R5–2 The non-exhaustive list of fairness factors should be: (a) the purpose and character of the use; (b) the nature of the copyright material; (c) the amount and substantiality of the part used; and (d) the effect of the use upon the potential market for, or value of, the copyright material.  

R5–3 The non-exhaustive list of illustrative purposes should include the following: (a) research or study; (b) criticism or review; (c) parody or satire; (d) reporting news; (e) professional advice; (f) quotation; (g) non-commercial private use; (h) incidental or technical use; (i) library or archive use; (j) (k) education; and access for people with disability. 

R5–4 The Act should be amended to repeal the following exceptions: (a) ss 40, 103C—fair dealing for research or study; (b) ss 41, 103A—fair dealing for criticism or review; (c) ss 41A, 103AA—fair dealing for parody or satire; (d) ss 42, 103B—fair dealing for reporting news; (e) s 43(2)—fair dealing for a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice; and (f) ss 104(b) and (c)—professional advice exceptions. The fair use or new fair dealing exception should be applied when determining whether one of these uses infringes copyright. 

The New Fair Dealing Exception 

R6–1 If fair use is not enacted, the Act should be amended to provide that a fair dealing with copyright material for one of the following purposes does not infringe copyright: (a) research or study; (b) criticism or review; (c) parody or satire; (d) reporting news; (e) professional advice; (f) quotation; (g) non-commercial private use; (h) incidental or technical use; (i) library or archive use; (j) education; and (k) access for people with disability. This provision should also provide that the fairness factors should be considered when determining whether the dealing is fair, along with any other relevant matter. Note: This consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes ((f)-(k)) also do not infringe copyright. Importantly, unlike fair use, this exception can only apply to a use of copyright material for one of the prescribed purposes. The purposes are not illustrative. 

Statutory Licences 

R8–1 The Act should be amended to clarify that the statutory licences in pts VA, VB and VII div 2 do not apply to a use of copyright material which, because of another provision of the Act, would not infringe copyright. This means that governments, educational institutions and institutions assisting people with disability, will be able to rely on unremunerated exceptions, including fair use or the new fair dealing exception, to the extent that they apply. 

R8–2 The Act should be amended to clarify that the statutory licences in pts VA, VB and VII div 2 do not apply to a use of copyright material where a government, educational institution, or an institution assisting people with disability, instead relies on an alternative licence, whether obtained directly from rights holders or from a collecting society. 

R8–3 The Act should be amended to remove any requirement that, to rely on the statutory licence in pt VII div 2, governments must notify or pay equitable remuneration to a declared collecting society. Governments should have the option to notify and pay equitable remuneration directly to rights holders, where this is possible. 

R8–4 The statutory licences in pts VA, VB and VII div 2 of the Act should be made less prescriptive. Detailed provisions concerning the setting of equitable remuneration, remuneration notices, records notices, sampling notices, and record keeping should be removed. The Act should not require sampling surveys to be conducted. Instead, the Act should simply provide that the amount of equitable remuneration and other terms of the licences should be agreed between the relevant parties, or failing agreement, determined by the Copyright Tribunal. 

Quotation 

R9–1 The fair use or new fair dealing exception should be applied when determining whether a quotation infringes copyright. 

Private Use and Social Use

R10–1 The exceptions for format shifting and time shifting in ss 47J, 109A, 110AA and 111 of the Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether a private use infringes copyright. 

Incidental or Technical Use and Data and Text Mining 

R11–1 The exceptions for temporary uses and proxy web caching in ss 43A, 111A, 43B, 111B and 200AAA of the Copyright Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether incidental or technical uses infringes copyright. 

Libraries and Archives 

R12–1 Section 200AB of the Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether uses by libraries and archives infringes copyright. 

R12–2 The exceptions for preservation copying in ss 51A, 51B, 110B, 110BA and 112AA of the Act should be repealed. The Act should provide for a new exception that permits libraries and archives to use copyright material for preservation purposes. The exception should not limit the number or format of copies that may be made.  

Orphan Works 

R13–1 The Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement: (a) a reasonably diligent search for the rights holder had been conducted and the rights holder had not been found; and (b) as far as reasonably possible, the user of the work has clearly attributed it to the author. 

R13–2 The Act should provide that, in determining whether a reasonably diligent search was conducted, regard may be had to, among other things: (a) the nature of the copyright material; (b) how and by whom the search was conducted; (c) the search technologies, databases and registers available at the time; and (d) any guidelines, protocols or industry practices about conducting diligent searches available at the time. 

Education 

R14–1 The exceptions for educational use in ss 28, 44, 200, 200AAA and 200AB of the Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether an educational use infringes copyright. 

Government Use 

R15–1 The parliamentary libraries exceptions in ss 48A, 50(1)(aa) and 104 of the Act should be extended to apply to all types of copyright material and all exclusive rights. 

R15–2 The Act should provide for a new exception for the purpose of the proceedings of a tribunal, or for reporting those proceedings.  

R15–3 The Act should provide for a new exception for the purpose of the proceedings of a royal commission or a statutory inquiry, or for reporting those proceedings. 

R15–4 The Act should provide for a new exception for uses where statutes require local, state or Commonwealth governments to provide public access to copyright material. 

R15–5 The Act should provide for a new exception for use of correspondence and other material sent to government. This exception should not extend to uses that make previously published material publicly available. 

Access for People with Disability 

R16–1 The fair use or new fair dealing exception should be applied when determining whether a use for access for people with disability infringes copyright. 

Retransmission of Free-to-air Broadcasts 

R18–1 In developing media and communications policy, and in responding to media convergence, the Australian Government should consider whether the retransmission scheme for free-to-air broadcasts provided by pt VC of the Copyright Act and s 212(2) of the Broadcasting Services Act 1992 (Cth) should be repealed. Note: This would effectively leave the extent to which retransmission occurs entirely to negotiation between the parties—broadcasters, retransmitters and underlying copyright holders. 

R18–2 If the retransmission scheme is retained, the scope and application of the internet exclusion in s 135ZZJA of the Copyright Act should be clarified. 

Broadcasting 

R19–1 In developing media and communications policy, and in responding to media convergence, the Australian Government should consider whether the following exceptions in the Act should be repealed: (a) s 45—broadcast of extracts of works; (b) ss 47, 70 and 107—reproduction for broadcasting; (c) s 109—broadcasting of sound recordings; (d) ss 65 and 67—incidental broadcast of artistic works; and (e) s 199—reception of broadcasts.  

R19–2 The Australian Government should also consider whether the following exceptions should be amended to extend to the transmission of linear television or radio programs using the internet or other forms of communication to the public: (a) s 47A—sound broadcasting by holders of a print disability radio licence; and (b) pt VA—copying of broadcasts by educational institutions. 

Contracting Out

R20–1 The Act should provide that any term of an agreement that restricts or prevents the doing of an act, which would otherwise be permitted by specific libraries and archives exceptions, is unenforceable. 

R20–2 The Act should not provide statutory limitations on contracting out of the fair use exception. However, if fair use is not enacted, limitations on contracting out should apply to the new fair dealing exception.

The Australian Copyright Council comments -

It is pleasing that ALRC has revised some of its earlier radical proposals in relation to statutory licensing. However we are concerned to see that the ALRC has maintained its recommendation for a broad fair use exception. We think that this new, very broad exception proposed by the ALRC could stifle rather than promote innovative business models and have a negative effect on the livelihoods of creators and the ability of consumers to access content.

Hot Assets and Proceeds of Crime

A recent post noted the large amounts of money potentially gained by drug traffickers.

Targeting the Illicit Profits of Drug Trafficking Through Proceeds of Crime Action (NDLERF Monograph 52) [PDF] by Michael McFadden, Martin O’Flaherty, Paul Boreham and Michele Haynes reports on a National Drug Law Enforcement Research Fund (NDLERF) project investigating whether Proceeds of Crime (POC) mechanisms are effective.

The report comments that

Because of the hidden nature of criminal enterprise, it is difficult to measure whether actions such as drugs seizures or proceeds of crime confiscations cause set-backs to the criminal business model, though logically, they must. 

The project had two main aims -

• To identify the disruptive effect of proceeds of crime action on criminal activity, and measure the disruptive effect by developing an economic model that estimated the multiplier impact of the reinvestment of the profits of drug trafficking. This measure can provide police with a more accurate estimate of the impact of their drug law enforcement activities, in turn improving accountability to both government and the community. 
• To identify factors associated with successful proceeds of crime action, to assist law enforcement to target those drug trafficking activities that are more likely to result in further criminal activity, and to provide a means for agencies to increase their seizures of criminal assets and proceeds of crime. 

The authors developed a business model of illicit drug trafficking and the development of a measure of the impact of POC action. They then carried out analyses of proceeds of crime data, examining 1,244 assets (cash, shares, boats, cars, residential and commercial property) associated with 269 cases opened from 1 January 2003 and closed by 30 June 2011, described in the AFP database.

The authors conclude that

• For every $1 of criminal proceeds confiscated, the short term impact (i.e. after a single lag of approximately 3 months) is a reduction in criminal funds of $2.20 for the Overall Model, and $3.50 for the Distributor Importer Producer Model. 
• In the medium term (after two periods of criminal activity, or about 6 months), these savings are $4.60 (Overall Model) and $11.90 (Distributor Importer Producer Model) for every $1 confiscated. 
• A reasonable estimate then of the impact of proceeds of crime action in Australia, is a multiplier of 3.5 to measure short term disruption and 11.9 to measure medium term disruption. For most practical applications, the authors recommend the use of the medium term estimate of 11.90.

The authors indicate that

Illicit drug trafficking is a source of funds for further trafficking and for supporting the lifestyles of criminals. Drug trafficking has been closely linked with organised crime and with social harms. ... There are two main audiences for the findings of this study. Senior police, police intelligence, policymakers and researchers will be interested primarily in measuring the disruptive effect of proceeds of crime action. Police responsible for managing proceeds of crime investigations and senior investigators will be interested in the practical applications of findings relating to success factors in financial investigations. 

The results of the project should improve agencies’ ability to target trafficking and increase the seizure of proceeds of crime. The proposed index of the disruptive effect of proceeds of crime action—the Proceeds of Crime Drug Disruption Index (POCDDI)—will also allow agencies to provide both the Government and the community with a more accurate assessment of the value of their proceeds of crime initiatives. 

Background to the study 

We conducted an extensive literature review, as well as collecting information from expert sources in Australia. .... It should be noted that in the wider literature proceeds of crime and money laundering are closely linked and issues relating to proceeds of crime are often dealt with under the broader heading of money laundering. As such, our review extended across both areas. 

The literature we surveyed was predominantly negative about the benefits of proceeds of crime/money laundering legislation. Various parties have raised concerns about the cost-effectiveness of anti-money laundering and proceeds of crime initiatives, their failure to target major crime figures and the infringement of civil liberties associated with implementation. We argue that very little attention has been paid to developing measures relevant to determining the success of these initiatives. Apart from the occasional comment, there has been little interest in the development of a coherent and explicit measurement framework for evaluation. Too often, studies have adopted measures that are readily available (eg arrests and forfeitures) rather than to develop measures that are truly appropriate for measuring the impact of proceeds of crime action upon the criminal enterprise and ultimately, through the disruption of crime, on the community. The business-for-profit nature of the majority of drug trafficking suggests that a proper evaluation should take place within the context of an appropriate business model. 

A business model of drug trafficking 

To derive a business model of drug trafficking, we modified an existing business model of people trafficking operations developed by the Organisation for Security and Co-operation in Europe (Aronowitz et al. 2010). An outline of the modified business model for drug trafficking is presented in Table 1. People trafficking operations have many features in common with the global movement of illicit drugs, employing similar techniques and similar resources. 

The consideration of drug trafficking as a business provides an entirely different perspective to that provided by the literature review. The literature review tended to be pessimistic about the potential for proceeds of crime and money laundering legislation to disrupt crime. 

One of the major concerns was the apparent lack of evidence of any impact on key organised crime figures. From a business model perspective, this might be expected. If modern organised crime is comprised of shifting allegiances and cooperation between individuals and cells in one or more broadly based criminal groups, then such a result is to be anticipated. The hypothesis that proceeds of crime action should be directed at major crime figures is based on the unstated assumption that organised crime exhibits a concrete, hierarchical structure. Such an assumption is not consistent with modern notions of the structure of organised crime. 

Adopting a business model of organised crime also gives us a clear indication of why proceeds of crime are important. All business models of organised crime assume that profit is the primary motive of such businesses, as it is with legitimate business enterprises. On that assumption, one would expect that successful proceeds of crime action would be disruptive to the business of crimes. Proceeds of crime action per se cannot be without value unless the business model of crime is wrong and that seems highly unlikely. If criticisms of proceeds of crime/money laundering efforts are to be sustained, they must be directed at the application of such regulations rather than the concept itself. 

In conclusion, recognition of the ‘business’ nature of organised crime refutes many of the criticisms met with in the literature which has, in our opinion, focused too narrowly on the technicalities of proceeds of crime and money laundering regimes rather than recognising the broader theoretical framework within which these regimes exist. The adoption of an appropriate business model also assists us to identify the point in the supply chain where proceeds action may be most effective. With imported drugs, the most vulnerable point would appear to be the transportation of illicit drugs across national borders. 

Factors relating to successful proceeds of crime investigation 

A second component of the research used proceeds of crime case data provided by the Australian Federal Police (AFP) to investigate factors associated with successful proceeds of crime investigations. Because the data are from AFP investigations, it is important to note that the findings presented here are not generalisable to state jurisdictions, which operate with both a different mix of cases and a different legal framework. 

We attempted to identify factors related to successful proceeds of crime investigations using both descriptive statistics and modelling techniques. First, the value of proceeds in financial investigations is heavily concentrated in the largest cases. The top 10 percent of cases contained 80 percent of the total value of proceeds (see Figure 1). This observation is consistent with the Pareto Principle or 80/20 rule, which suggests that 80 percent of the effects come from 20 percent of the causes. 

Conversely, as the value of a case increases, the proportion of assets forfeited tends to decline. In the ‘bottom’ 50 percent of cases (by value), two in three assets are forfeited, while in the ‘top’ 50 percent, one in two assets are forfeited. This suggests that law enforcement should continue to pursue straightforward lower value cases due to their higher success rate, while focusing the bulk of their effort on large investigations because most of the value is in these cases. 

More complex statistical methods were employed to identify factors in the successful outcome of financial investigations (see Chapter 5 for details). It should be noted that the number of cases available for drug- related proceeds of crime cases was insufficient to support the analysis. We decided to include proceeds of crime data from other crime types to increase the amount of data available for our statistical analysis. We tested our final model to evaluate whether the type of crime in any way influenced the factors related to success. Type of crime did not influence the model, which means that the types of factors that influence success in proceeds of crime action are the same for drug trafficking and other types of crime. A good financial investigation exhibits similar characteristics regardless of the predicate crime. The second major finding was that the duration of the financial investigation (as measured by the period from the restraint of an asset to its resolution) was statistically associated with the chance of success. The longer a financial investigation takes, the less likely it will be successful. For every year that passed, the odds of success were reduced by approximately one-third. 

The observed rate of decline could be useful in assisting financial investigation teams to assess the progress of individual cases. For example, where resources are scarce, this information would be helpful in weighing up whether to continue an ongoing case of some duration with a lower rate of success, as opposed to adopting a new case with a potentially higher chance of success. This finding may be of particular relevance as expert opinion confirmed that the main obstacle to pursuing proceeds of crime was lack of available resources in financial investigation teams. Third, our model also suggested that the type of asset restrained was associated with the chance of a successful outcome. Liquid assets and commercial property were more likely to be forfeited than residential property and other assets. There is potential to improve the overall effectiveness of financial investigations if the reasons for the lower success rate with respect to residential property and other assets could be identified.

Citizenship

The unpublished 'Unruly Beasts: Animal Citizens and the Threat of Tyranny' by Donaldson and Kymlicka - highlighted in a recent post - states that

In Zoopolis, we argue that domesticated animals are entitled not only to protection of their basic negative rights such as life and liberty. They should be recognized as citizens in a mixed human-animal democratic polis sharing rights of membership, representation, and participation in a shared cooperative scheme. Our argument for a duty to extend citizenship to domesticated animals (hereafter DAs) rests on three claims:

• DAs are de facto members of our political communities – physically present, and subject to human governance;

• through the process of domestication, DAs have been made dependent on human care, foreclosing any (immediate) option of a more independent existence outside of human communities; and

• within our political communities DAs form a dominated and exploited sub-class whose interests are systematically ignored by the political order.

In short, DAs are members of our communities; we have benefitted from, and enforced, their membership while systematically exploiting them, and these facts generate a moral obligation to extend citizenship. Justice demands that domination and hierarchy be replaced by relations of citizenship, and its accompanying ethos of equality, participation, consent and cooperation. We also argue that domestication makes co-citizenship possible. Citizenship is a cooperative relationship, calling on capacities for trust, communication, and physical proximity. We may not be able to enter such relations with all animal species on the planet, but there is no doubt that we can do so with DAs. Domestication presupposes and enhances capacities for sociability across species lines (Clutton-Brock 2012). One need only imagine sharing the demos with spitting cobras, blue whales or Bengal tigers to highlight the contrast. With DAs we can form bonds, engage in cooperative activity, and share physical space – preconditions for meaningful citizenship relations. 

This is just a sketch of the argument for DA citizenship, but we hope the underlying normative logic is clear and perhaps even has some intuitive appeal. Nonetheless, our proposal for animal citizenship has faced two broad criticisms: some critics question whether citizenship would in fact be good for DAs; while others question whether animal citizenship would be good for democracy. 

In this paper, we focus on the second concern, but it is important to keep the first in mind as well. We‘ve proposed citizenship as an emancipatory project that affirms the rights and interests of DAs, but some critics worry that citizenship will prove to be yet another way in which we discipline vulnerable and compliant DAs to fit our categories and practices. Since citizenship is a norm-governed relationship, ascribing citizenship to DAs would justify policing their behaviour to make them fit for human society - manipulating, coercing, and diminishing animals by failing to respect their differences from us, and placing unacceptable limitations on their flourishing (Nurse and Ryland 2013; Palmer 2014). In short, citizenship would be bad for animals. 

We have responded to this objection elsewhere (Donaldson and Kymlicka 2014). Citizenship does indeed involve socializing DAs to participate in norms of good citizenship, including norms of civility and contribution, but whether this is oppressive depends on whether these norms are mutually created, enabling all members of society to flourish, or whether they mold or relegate some members into a caste group to serve others. The aim of a citizenship approach is precisely to ensure that social norms are responsive to the good of DAs as well as humans. This would require creating conditions for DAs to safely explore alternative forms of cooperation with humans (and with other DAs) in order to determine what forms of cooperation (if any) they wish to engage in with us. Under these circumstances, we argue, citizenship would indeed be good for animals. In this paper we address the reverse question of whether animal citizens would be bad for democracy. 

In her article 'Democracy, Despots and Wolves', Emma Planinc argues that animals are fundamentally "unruly", unable to regulate their behaviour according to shared norms. Their participation would weaken the norms of reciprocity, self-restraint and civility that make democratic self-rule possible. She worries that because animals are "formless", "unbridled", "anarchic", "insatiable", "savage", "ravenous", "wanton" and "amoral" in their exercise of freedom, including them in the polis would weaken the commitment to moderation and justice on which democracy depends. 

We address this argument below, but it‘s worth noting the relationship between this critique and the first one. The first worries that DAs can too easily be compelled (through coercion or manipulative training) to comply with even the most exploitative norms, and so are inevitably vulnerable to domination. The second worries that animals will be insufficiently compliant with human-created social norms, and are therefore disruptive to the demos. While the two critiques differ in their predictions about the extent of DA compliance with social norms, they share the assumption that these norms can only ever be external impositions on DAs. The horizon of possibilities is either (docile) compliance or (unruly) non-compliance with human-created norms. What both ignore is the possibility of DA agency – their capacity not only to be trustworthy partners in cooperative activities with humans, but also to help create, negotiate and shape social norms. As we will see, this is what makes justice possible in relations between humans and DAs, and what makes a zoopolis consistent with the flourishing of all citizens, human or animal. 

This paper is structured as follows. First, we draw upon a growing body of evidence which shows that DAs, far from being "formless" and "anarchic" in their exercise of freedom, display capacities for learning, reflexivity, practical reasoning, and norm responsiveness rooted in a range of moral sentiments and pro-social tendencies. So far as we know, animals do not entertain propositions about pro-social norms and moral sentiments, nor do they consciously assent to such propositions. But this leads to the second step of our argument, which draws upon a growing body of evidence that human moral agency is not primarily a matter of rational scrutiny of, and self-conscious assent to, propositions. Human moral agency is grounded in pre-reflective moral sentiments and pro-social impulses that we share with many animals; it is largely intuitive and spontaneous; and it is embodied and socially embedded behaviour, not (or not primarily) the activity of a disembodied mind. Indeed, the stability of democratic life depends on this fact. 

In short, humans are continuous with other animals in our moral natures as much as other dimensions of our being, as indeed one would expect given the processes of evolution. Once we recognize this continuity, we must abandon the stereotype of unruly beasts versus sovereign humans, and instead consider how citizens, of all stripes, can be supported in the exercise of citizenship agency in ways that allow us to flourish together. This will require rethinking the spaces and places of citizenship to more fully realize fundamental democratic values. 

The final section of the paper explores a concrete example to flesh out the abstract arguments – namely, debates about dogs in public parks. This provides a fruitful microcosm for exploring the possibilities of DA citizenship, illuminating the potential for cross-species social norms and civility, the responsible exercise of freedom, and the fostering of social participation and inclusion. As we will see, there are good reasons to think that including DAs, far from threatening civic norms and democratic practices, could in fact promote and revitalize them.

Kymlicka and Donaldson's 'Animals and the Frontiers of Citizenship' (HLA Hart Memorial Lecture, University of Oxford, 2013) notes that

Citizenship has been at the core of struggles by historically excluded groups for respect and inclusion. Can citizenship be extended even further to domesticated animals? We begin this paper by sketching an argument for why justice requires the extension of citizenship to domesticated animals, above and beyond compassionate care, stewardship, or universal basic rights. We then consider two objections to this argument. Some animal rights theorists worry that extending citizenship to domesticated animals, while it may sound progressive, would in fact be bad for animals, providing yet another basis for policing their behaviour to fit human needs and interests. Critics of animal rights, on the other hand, worry that the inclusion of "unruly" beasts would be bad for democracy, eroding its core values and principles. We attempt to show that both objections are misplaced, and that animal citizenship would both promote justice for animals and deepen fundamental democratic dispositions and values.

They begin -

 In our recent book Zoopolis, we made the case for a distinctly “political theory of animal rights” 

In this Lecture, we attempt to extend that argument, and to respond to some critics of it, by focusing specifically on the novel idea of “animal citizenship”. 

To begin, let us briefly situate our approach in the larger animal rights debate. One of our goals in the book was to get beyond the traditional animal rights debate that has focused almost exclusively on one issue – the intrinsic moral status of animals. Many readers will be familiar with this 40-year debate, but just to remind you:

• animal rights theorists have claimed that because animals possess sentience or consciousness and therefore have a subjective good, they have the sort of moral standing that justifies certain inviolable rights – to life and liberty, and in particular the right not to be used as a means to human well-being. 

• In response critics have argued that to be a possessor of such inviolable rights requires something more than sentience or a subjective good. It requires some alleged higher capacity, typically a cognitive capacity such as rationality or autonomy or moral reasoning. And therefore only humans can be the bearers of such rights and, moreover, by virtue of possessing these higher capacities, humans have the right to use other beings who lack these capacities. 

• Animal rights theorists in turn have responded that restricting inviolable rights to those with a certain degree of cognitive complexity is both theoretically arbitrary and at odds with our actual practices. Indeed the evolution of the theory and practice of human rights in the last 60 years has been to repudiate any limitation based on the rationality or autonomy of the beings involved. Inviolable rights are first and foremost for the protection of the weak and vulnerable, not some sort of prize awarded to the most rational or cognitively complex.

To lay our cards on the table, we endorse the strong animal rights view – sentience is sufficient to qualify for inviolable rights – but we have little new to say on that question. Our focus instead is to show how it leaves unaddressed questions of what sorts of relations we should have with animals. We inevitably and rightly will have different relations with different groups such as wild animals, domesticated animals, and liminal animals (wild animals living amongst us), and these differing relationships generate different moral obligations. 

For example, consider wild wolves and domesticated dogs. Since dogs are domesticated wolves, they share the same intrinsic moral status, but we have very different relations with them. Through domestication we have brought dogs into our society, bred them to become dependent on us, and incorporated them into our schemes of social cooperation. These facts are morally significant – they create obligations to dogs that are different from those to wolves, despite their common intrinsic moral status. 

Our project in Zoopolis is not simply to emphasize the moral significance of these relational obligations, but also to argue that we can make sense of these different relations through the concepts and categories of political theory. 

To simplify, we argue that we can usefully distinguish three broad patterns of such relations:

• domesticated animals should be viewed as members of a shared society with us, and hence as having rights of membership. In political theory membership rights are typically theorized in the language of citizenship. We can therefore illuminate our distinctive obligations to domesticated animals by considering political theories of citizenship.

• Wilderness animals should be seen as having rights to their own territory and autonomy on that territory. In political theory rights to territory and autonomy are typically theorized in the language of sovereignty. We can therefore illuminate our distinctive obligations to wilderness animals by considering political theories of sovereignty. 

• Liminal animals (e.g. “urban wildlife”) – the non-domesticated animals who live amongst us - should be seen as having rights of residency without participating in a shared cooperative scheme with us. In political theory, ideas of denizenship have been used to capture this status of residency without citizenship, and these ideas can help illuminate our distinctive obligations to liminal animals. 

This is obviously a very schematic summary, but for this Lecture we want to focus on the first category – the idea of co-citizenship for domesticated animals - and to respond to some concerns that have been raised about it. 

To render the issues more vivid we will consider a specific case – one that some of you may be familiar with. It's the story ofBill and Lou, two oxen who worked at Green Mountain College in Vermont as part of the college's sustainable agriculture program. Last year, after 10 years plowing the fields at the college Lou injured his leg on the job, and Bill rejected the idea of continuing to work by being yoked with a new ox. The college deliberated and decided to kill Bill and Lou and process them into hamburgers to serve in the college cafeteria. There was outrage at this decision. A nearby sanctuary offered to take the oxen so they could have a peaceful retirement at no cost to the College. The College said no. They rejected the offer because left alive, Bill and Lou would violate the goal of sustainable agriculture -- the oxen would continue to consume resources and emit greenhouse gasses while no longer balancing the scales as petroleum-free tractors. 

The controversy about his case is unsurprising – Bill and Lou were known to many people as individuals, making their treatment stand out against the general background of our violence towards domesticated animals (hereafter DAs). Many animal rights (hereafter AR) advocates argued, correctly, that Bill and Lou have rights to life and liberty that were violated by the decision to kill them. But this doesn't seem to fully capture all of the perversities of the college's reasoning. In any event, for many traditional AR advocates the problem actually started much earlier, since they believe that Bill and Lou should never have been used as workers on the College farm in the first place. For these AR advocates – sometimes called “abolitionists” – any use of animal labour is inherently oppressive and exploitative. 

So on the one side, we have the College which feels entitled to kill the oxen who are no longer fulfilling their functional role, viewing them as "dispensable as rusty farm implements" in John Sanbonmatsu's words. And on the other side, we have AR advocates who think all use of domesticated animals must be abolished. What both are missing, we believe, is the possibility that Bill and Lou could be members of a just cooperative scheme at Green Mountain College. Our citizenship model is intended to illuminate this possibility.  

We will pursue the argument in three steps. First we will briefly recapitulate our argument for why DAs such as Lou and Bill are owed the status of co-citizens. Then we will consider two important objections that have been raised to this idea, one from defenders of AR who worry that extending citizenship to DAs, while it may sound progressive, will turn out to be bad for animals, providing yet another basis for policing their behaviour to fit human needs and interests. The second objection is from critics of AR, who argue that the inclusion of DAs like Bill and Lou would be bad for democracy, harming or diminishing the overall quality of our democratic life, and eroding the values and principles that we cherish in democratic citizenship.