FOI and Surveillance

'The Ecology of Transparency Reloaded' by Seth F. Kreimer in David Pozen and Michael Schudson (eds), Troubling Transparency: The Freedom of Information Act and Beyond (olumbia University Press, 2018) comments

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s "Dissent Channel," the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the Freedom of Information Act was unnecessary. FOIA has also suffered the converse criticism: that it is necessary but ineffective. A third constellation of critics discerns a mismatch between the legal regime of transparency and the goals of good governance. David Pozen has argued that the costs imposed are pathologically asymmetric. FOIA, he alleges, is "neoliberal" and "reactionary"; it "empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy," while doing little to further scrutiny or control of corporate exploitation.

Drawing on case studies from the Bush-era "Global War on Terror" (or "Terrorism"), this chapter argues that critics miss important normative and practical issues. Critiques focused on denied requests and unsuccessfully litigated cases in isolation miss the ways in which information obtained though unlitigated or partially successful requests is facilitated by, and in turn has catalyzed other elements of a broader ecology of transparency. Analysts of FOIA should be alert to the elements of that ecology. Critics should acknowledge its virtues of resiliency and efficacy. Reformers should neither slight nor squander them.

The Constitutional Limits of Private Surveillance' by Kiel Robert Brennan-Marquez in Kansas Law Review (Forthcoming) comments

The age of data-driven law enforcement is upon us. As a consequence, state officials now rely heavily on private surveillance technology to forecast threats, drive investigations, and mobilize enforcement. On the whole, this development is welcome; the use of privately-collected data promises to refine policing and counterterrorism efforts. But it also has major implications for constitutional privacy. For the Fourth Amendment to safeguard privacy into the future, its approach to state action must change. Instead of turning, as it has historically, on the extent of government influence over private surveillance activity, the Fourth Amendment’s coverage should depend on whether private surveillance activity effects an extension, in practice, of law enforcement’s infrastructural capacity.

In addition to its normative benefits, the “infrastructural” approach also resolves certain mysteries within existing law and brings the Fourth Amendment into greater alignment with broader patterns of state action jurisprudence. Most importantly, focusing on infrastructure underscores the connection — unappreciated to date — between (1) law enforcement’s compulsory seizure of privately-held data, enabled by the so-called “third-party doctrine,” and (2) informal data-sharing between law enforcement and the private sector. The third-party doctrine is teed up for reform this term in Carpenter v. United States. But no such progress is on the horizon for informal data-sharing. Doctrinally, the issues have been compartmentalized, even though, at an infrastructural level, they represent two sides of the same coin. Both are mechanisms by which law enforcement officials capitalize on private surveillance technology in lieu of performing surveillance directly — and both thus facilitate bulk, warrant-less data collection by the state. As such, a full solution to the shortcomings of the third-party doctrine demands parallel attention to the shortcomings of the Fourth Amendment’s antiquated state action rules, and vice versa. Solving one problem in isolation from the other risks a partial victory — or even a Pyrrhic one, to the extent that reform of the third-party doctrine could encourage even more informal data-sharing between the government and the private sector. Against this backdrop, the infrastructural approach offers an integrated path forward, and one that will only become more urgent, over time, as data-driven law enforcement practices intensify.

Victorian Digital Czar

The Victorian Government, following the various whole of government digital strategy initiatives announced over the past decade (and accompanied by fundamental weakening of the state privacy commissioner, has announced that it is "improving data-sharing across government to deliver better services for Victorians".

The Government collects vast quantities of data – about education and health, our communities, business, employment, infrastructure and the environment. However for too long government data has been held in agency silos and not available across government to tackle many of the pressing community concerns.

The Victorian Data Sharing Bill 2017 – which was second read in Parliament today – will break down these silos and ensure agencies can share data and information across the whole of Government.

Enabling data to be shared and used across government will provide insights about what works and why, and ensure informed policy decisions that deliver for hard working families – from tackling family violence to improve health outcomes.

This Bill provides a clear legal framework that allows for government data to be shared for policy making, service planning and design, enabling government agencies to work together to tackle key priorities.

The Bill also includes strong safeguards and oversight to protect personal data and information, including independent oversight by Victoria’s privacy regulators, mandatory reporting of any potential breaches, and new offences for unauthorised access, use or disclosure.

This Bill follows other work that the Labor Government is doing to modernise Victoria’s data and information sharing regime that includes:

• Legislation to protect women affected by family violence by better sharing information and prioritising victim survivors over their perpetrators 

• The development of a Central Information Point to facilitate information sharing across agencies involved in protecting women from family violence 

• The creation of Office of Victorian Information Commissioner, bringing together freedom of information with data protection and privacy, to provide independent oversight across those closely-related fields.

The Labor Government has also appointed Victoria’s first Chief Data Officer within the Victorian Centre for Data Insights to transform how the Victorian Government uses data to strengthen policy making. This Bill supports the new Officer by establishing into law the statutory position, and its powers and functions.

The Centre website states -

The Victorian Centre for Data Insights (the Centre) provides a whole-of government focus to help transform the way government uses data.

The Centre will tell a bigger story than analysing data from just one source. It will bring data together from across government to generate new insights to design better and more data driven policy and services.

The Centre will:

• partner with departments and agencies on data analytics projects that inform policy making and service design 

• build data analytics skills and capability of the Victorian Public Service (VPS) 

• contribute to improving how data is collected and managed across the VPS 

• work with other governments across Australia on better data use, on behalf of the Victorian Government.

The Centre operates as a business unit within the Department of Premier and Cabinet. The Centre is part of the Special Minister of State’s focus on public sector reform, working to strengthen evidence- based policy and practice.

The Centre is led by Victoria’s first Chief Data Officer (CDO). The CDO will lead the Centre, and advocate for the better use of data across government. The CDO is supported by a team of data analysts, information management and policy specialists.

The Explanatory Memo for the Bill states

The main purpose of the Victorian Data Sharing Bill 2017 is to establish the office of the Chief Data Officer, to promote the sharing and use of public sector data as a public resource that supports government policy making, service planning and design, and to amend the Privacy and Data Protection Act 2014.

Clause Notes

Part 1--Preliminary

Clause 1 provides that the main purposes of the Bill are--

• to establish the office of Chief Data Officer; and 

• to promote the sharing and use of public sector data as a public resource that supports government policy making, service planning and design; 

• to remove barriers that impede the sharing of identifiable data with the Chief Data Officer or with data analytics bodies, and to facilitate the sharing of data across the public sector; and 

• to provide protections in connection with data sharing under this Bill, by-- 

• specifying the purposes of data sharing, and the circumstances in which sharing of identifiable data is permitted; and   

• ensuring that data that is handled under this Bill is protected from unauthorised access, use or disclosure; and 

• to make consequential and other amendments to other Acts.

Clause 2 sets out the commencement of the Bill. It will come into operation on the day after the day on which it receives the Royal Assent.

Clause 3 provides definitions for the key terms used in the Bill.

Subclause (2) provides that, for the purposes of the Bill, a body holds data if the data is contained in a document in the possession or under the control of the body.

Clause 4 provides that the Bill binds the Crown. Clause 5 provides that data must only be handled under the Bill for the purpose of informing government policy making, service planning and design.

Part 2--Chief Data Officer

Clause 6 provides that the Secretary to the Department responsible for administering this Bill may employ a person under Part 3 of the Public Administration Act 2004 to be the Chief Data Officer.

Clause 7 sets out the functions of the Chief Data Officer which include to conduct data integration and data analytics work to inform government policy making, service planning and design, to build capability in data analytics across the public sector, to coordinate data sharing and integration on behalf of the state of Victoria, to make integrated data sets and the results of data analytics work available to data sharing bodies and designated bodies and to collaborate with these bodies, and any other functions incidental to these functions or conferred under this Bill or any other Act.

Part 3--Data requests

Clause 8 sets out the mechanism by which the Chief Data Officer can make a formal request to a data sharing body or a designated body for data held by the body. The Chief Data Officer can only make a request for the purpose of informing government  policy making, service planning and design and must not request restricted data. The Chief Data Officer must make the request in the form of a written notice which specifies the data being requested, the reasons for the request and how the data will be handled.

Clause 9 provides that a data sharing body that receives a request under clause 8 must respond to the request within 10 business days (or a longer period as agreed by the Chief Data Officer). The data sharing body's response must either be to provide the data, or to provide reasons (in accordance with clause 14) for why the data sharing body will not be providing some or all of the data. If the data sharing body does not intend to provide some or all of the data, the response must be given to the Secretary to the Department as well as the Chief Data Officer.

Clause 10 provides that if a designated body receives a request under clause 8, the designated body may respond by providing some or all of the data but is not obligated to do so.

Clause 11 sets out the mechanism by which the Chief Data Officer can make a formal request to a data sharing body or a designated body for information about their data holdings. The information that may be requested includes, but is not limited to--

• the kind of data sets held by the data sharing body or designated body; and 

• the number of data sets held by the data sharing body or designated body; and 

• the kind of information contained in the data sets held by the data sharing body or designated body; and 

• the accuracy, currency and completeness of the data sets held by the data sharing body or designated body.

The Chief Data Officer can only make a request for the purpose of informing government policy making, service planning and design. The Chief Data Officer must make the request in the form of a written notice which specifies the information being requested, the reasons for the request and how the information will be handled.

Clause 12 provides that a data sharing body that receives a request under clause 11 must respond to the request within 10 business days (or a longer period as agreed by the Chief Data Officer). The data sharing body's response must either be to provide the information, or to provide reasons (in accordance with clause 14) for why the data sharing body will not be providing some or all of the information. If the data sharing body does not intend to provide some or all of the information, the response must be given to the Secretary to the Department as well as the Chief Data Officer.

Clause 13 provides that if a designated body receives a request under clause 11, the designated body may respond by providing some or all of the information but is not obligated to do so.

Clause 14 sets out a non-exhaustive list of reasons for which a data sharing body or designated body may choose to refuse to provide data or information requested by the Chief Data Officer under clause 8 or 11. The responsible officer of the data sharing body or designated body may refuse if the responsible officer considers that data or information should not be provided for any reason, including but not limited to the following reasons--

• • that the provision of the data or information would constitute a breach of one or more of the following-- 

• client legal privilege or legal professional privilege; 

• contract; 

• an equitable obligation of confidence; 

• an order of a court or tribunal; 

• subject to Part 4, a law of the Commonwealth, a State or a Territory; or 

• that the provision of the data or information would be likely to prejudice one or more of the following-- 

• the investigation of a breach, or possible breach, of a law of the Commonwealth, a State or a Territory, or the administration or enforcement of such a law; 

• a coronial inquest or inquiry; 

• a proceeding before a court or tribunal; or 

• that the responsible officer believes on reasonable grounds that the provision of the data or information would be likely to endanger the health, safety or welfare of one or more individuals.

Part 4--Use and disclosure of data

Division 1--Authorised use and disclosure of identifiable data

This division sets out the circumstances in which the use or disclosure of identifiable data is authorised by the Bill and the restrictions which apply to use and disclosure of identifiable data.

Clause 15 subclause (1) authorises the responsible officer of a data sharing body or a designated body to disclose identifiable data to the Chief Data Officer in response to a request under clause 8. The disclosure is only authorised for the purpose of informing government policy making, service planning and design.

Subclause (2) authorises the responsible officer of a data sharing body or designated body to disclose identifiable data to a data analytics body. The disclosure is only authorised for the data analytics body to conduct data integration on the identifiable data for the purpose of informing government policy making, service planning and design.

Clause 16 authorises the Chief Data Officer to disclose identifiable data that the Chief Data Officer has received from a data sharing body or designated body under the Bill to a data analytics body. The disclosure is only authorised for the data analytics body to conduct data integration on the identifiable data for the purpose of informing government policy making, service planning and design.

Clause 17 authorises the Chief Data Officer to use (as well as collect, hold and manage) identifiable data received from data sharing bodies and designated bodies under this Bill. The Chief Data Officer is only authorised to use the identifiable data for data integration for the purpose of informing government policy making, service planning and design.

Clause 18 provides that if the Chief Data Officer or a data analytics body intend to use the data that they have received under this Bill for the purpose of data analytics work, they must first take reasonable steps to ensure that the data no longer relates to an individual that can be reasonably identified. In doing so, the Chief Data Officer or data analytics body must have regard to--

• the de-identification techniques applied to treat the data; 

• the technical and administrative safeguards and protections implemented in the data analytics environment to protect the privacy of individuals; and 

• any other considerations specified in the guidelines issued by the Chief Data Officer.

Clause 19 provides that before disclosing the results of data analytics work, the Chief Data Officer or a data analytics body must ensure that the results to be disclosed include only de-identified data.

Division 2--Authorised use and disclosure of data to which a secrecy provision applies

Clause 20 provides that the responsible officer of a data sharing body or designated body may disclose data to the Chief Data Officer under this Bill, even where a secrecy provision under another Act applies to that information, so long as the disclosure is in accordance with, and for the purposes of, this Bill.

Clause 21 requires that if a responsible officer of a data sharing body or designated body is aware that a secrecy provision applies to data which they are disclosing to the Chief Data Officer, the body must inform the Chief Data Officer of the existence of the secrecy provision.

Clause 22 provides that if a secrecy provision applies to the data received by the Chief Data Officer under this Bill, then the Chief Data Officer is authorised to use the data for the purposes of this Bill.

Clause 23 provides that if the Chief Data Officer intends to disclose information received under this Bill to which a secrecy provision applies, the Chief Data Officer must first obtain the approval of the Minister responsible for administering the secrecy provision  (and in the case of a secrecy provision in the Taxation Administration Act 1997, the Commissioner of State Revenue).

Subclause (2) enables the Chief Data Officer to disclose data to the Minister or to the Commissioner of State Revenue (as applicable) for the purpose of obtaining the approval.

Division 3--Relationship with other Acts

Clause 24 subclause (1) provides that this Part does not affect the handling of data that would otherwise be permitted by or under the Privacy and Data Protection Act 2014, the Health Records Act 2001 or any other Act.

Subclause (2) provides that except as expressly provided by this Part, this Bill does not affect obligations under the Privacy and Data Protection Act 2014 or the Health Records Act 2001 in relation to the handling of identifiable data.

Subclause (3) provides that if the Chief Data Officer or a data analytics body becomes aware that this Bill, the Privacy and Data Protection Act 2014, or the Health Records Act 2001 has been or is likely to have been breached in relation to data handled under the Bill while in the Chief Data Officer's or the data analytics body's control, they must as soon as possible inform the data provider and the Information Commissioner or Health Complaints Commissioner (as relevant).

Clause 25 provides that the Freedom of Information Act 1982 does not apply to data in the possession of the Chief Data Officer or a data analytics body that was received or integrated under this Bill.

Part 5--Offences

Clause 26 creates a summary offence for a person (without a reasonable excuse) to access, use or disclose data obtained by the person under this Bill, other than in accordance with this Bill or in the performance of the person's functions under this Bill. The penalty for the offence is 240 penalty units or 2 years' imprisonment or both.

Clause 27 creates an indictable offence for a person to access, use or disclose any data or information obtained by the person under this Bill if the person knows or is reckless as to whether the data or information may be used to--  

• endanger the life or physical safety of any person; or 

• commit, or assist in the commission of, an indictable offence; or 

• impede or interfere with the administration of justice.

The penalty for the offence is 600 penalty units or imprisonment for 5 years or both.

Part 6--Reporting and review

Clause 28 requires that the Chief Data Officer provide a report to the Health Complaints Commissioner at least every 12 months on the operation of the Centre in relation to the Centre's use of health information including the sharing of health information, projects which have involved the use of health information and the Centre's compliance with the Health Records Act 2001.

Clause 29 requires that the Chief Data Officer provide a report to the Information Commissioner at least every 12 months on the operation of the Centre in relation to the Centre's use of personal information (other than health information) including the sharing of personal information, projects which have involved the use of personal information and the Centre's compliance with the Privacy and Data Protection Act 2004.

Clause 30 provides that the Minister must cause a review to be made of the first 5 years of operation of this Bill and within 12 months of the review being completed, cause the report of the review to be laid before each House of Parliament.

Part 7--Other matters

Clause 31 subclause (1) allows the Chief Data Officer to delegate any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the Department responsible for administering this Bill.

Subclause (2) allows the Secretary to a Department to delegate in their capacity as a data analytics body, any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the Department.

Subclause (3) allows the responsible officer of a data sharing body, data analytics body or designated body to delegate any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the relevant body.

Clause 32 provides that the Governor in Council may make regulations to give effect to the Bill, including regulations to--

• prescribe a body as a data sharing body or a data analytics body; and 

• prescribe a class of data to be restricted data; and 

• prescribe a provision to be a secrecy provision to which Division 2 of Part 4 does not apply.

Clause 33 provides that the Chief Data Officer may issue and publish policies and guidelines in relation to the administration of this Bill and that a data analytics body, data sharing body or a designated body must have regard to the policies or guidelines issued by the Chief Data Officer. The policies and guidelines may relate to--

• privacy and confidentiality preserving procedures for treating data; 

• data security safeguards in relation to data handling and storage under this Bill; 

• secure technology platforms for data handling and storage under this Bill; 

• risk mitigation frameworks for data handling and storage, such as proportionate risk assessment tools and techniques; 

• protocols for data integration and data analytics projects, such as project design, governance and data handling arrangements; 

• any other matters the Chief Data Officer considers relevant.

Part 8--Other matters

Clause 34 subclause (1) amends Schedule 1 of the Privacy and Data Protection Act 2014 to correct the definition of unique identifier by replacing the second "but" in the following definition with an "and" so that it now reads as follows--

"unique identifier means an identifier (usually a number) assigned by an organisation to an individual uniquely to identify that individual for the purposes of the operations of the organisation but does not include an identifier that consists only of the individual's name and does not include an identifier within the meaning of the Health Records Act 2001;".

Subclause (2) amends Schedule 1 of the Privacy and Data Protection Act 2014, to insert "or authorised" in clause 10.1(b) so that it permits the collection of sensitive information by an organisation where it is required or authorised by law.

Clause 35 amends section 20 of the Family Violence Protection Amendment (Information Sharing) Act 2017 to repeal certain amendments to the Privacy and Data Protection Act 2014 that are no longer required as a result of the amendment made by clause 34(2) of the Bill.

Clause 36 provides that the repeal of this Part is repealed on the first anniversary of the day on which this Bill comes into operation.

Protests and Offensive Speech

In Brown & Anor v The State of Tasmania [2017] HCA 43 the High Court has held invalid certain provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) in relation to the implied freedom of political communication.

Provisions of the Act prohibit "protesters" – persons engaging in conduct in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" – from engaging in certain conduct on "business premises" or "business access areas". "Business premises" relevantly comprises "forestry land", which includes land on which "forest operations" are being carried out. "Business access area" is defined as so much of an area of land, outside business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, business premises. Police officers may direct any person to leave or stay away from "business premises" or "business access areas" in certain circumstances under pain of arrest or criminal penalty.

The plaintiffs, notably former Greens Senator Bob Brown were present in the Lapoinya Forest in North West Tasmania when forest operations were being conducted there. They were arrested and charged with offences under the Act in relation to their conduct in opposing the logging of part of that forest. (The charges against each plaintiff were not later pursued.)

It was not disputed that, but for directions made under the Act, and to the extent permitted by other laws, the plaintiffs would have gone back to the Forest for the purpose of raising public awareness of logging in that forest.

In the High Court, the plaintiffs challenged the validity of provisions of the Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom.

 A majority of the High Court has today held that the impugned provisions of the Act in respect of forestry land and business access areas relating to forestry land effectively burdened the implied freedom of political communication.

A majority of the Court held that the Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities. The Court however held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible. The provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires.

A majority of the Court therefore declared that the impugned provisions were invalid in their operation in respect of forestry land and related business access areas.

In Danny Lim v Regina [2017] NSWDC 231 Judge AC Scotting has quashed the conviction of controversial figure Danny Lim for the  summary offence, under the Summary Offences Act 1988 (NSW), of using offensive language (in the form of a placard critiquing Tony Abbott)  in or near public place or school.

 Lim's case on the appeal was that the conduct in question was not offensive, that the conduct merely involved the use of offensive language - you can read the judgment to see the offensive words - and could thereby not amount to offensive conduct, that the political nature of the appellant’s communication amounted to a reasonable excuse for the conduct and finally that section 4 of the Act was invalid because it burdened the implied freedom of political communication.

The Court stated

Conduct capable of amounting to an offence should be limited to conduct at the high end of the range that could be considered “offensive”. The purpose of section 4 is to protect members of the public from undue disturbance of the use and enjoyment of public places: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [32] per Gleeson CJ. Section 4 extends to conduct in or near a school. This indicates that part of the purpose of the section is to restrict behaviour that might cause a parent or guardian concern for what their child may be exposed to. As such in assessing whether conduct is offensive, the reaction to it being witnessed by children must be considered. 

Where constructional choices are open, a meaning that limits the effect on political communication is to be preferred: Monis at [331]. The legislation should be read as going no further than is necessary to achieve its protective purpose, consistent with its terms, without unduly burdening political communications: Monis at [334]. 

In Coleman, Gleeson CJ at [14]-[15] said that a Queensland statute prohibiting the use of “threatening, abusive or insulting words” in a public place required more than the language being “merely derogatory” of the person to whom it was addressed. The language needed to be of such a nature that the use of it in a public place was contrary to the contemporary standards of public good order and goes beyond an exercise of freedom to express an opinion on controversial issues. 

The reasonable excuse defence involves an evaluative judgement. It is open to conclude that the political nature of a communication could be considered to be a reasonable excuse, in an appropriate case. 

The term “reasonable excuse” has been used in many statutes. What is a reasonable excuse depends upon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception: Taikato v The Queen[1996] HCA 28; (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person: Taikato at 470. 

The onus of proving a reasonable excuse is on the appellant on the balance of probabilities.

In analysing the Magistrate’s reasons the Court notes the  ex tempore judgment and states

Ultimately, the Magistrate found it to be a very “straightforward case”. She found that the reasonable person would have been offended by the sandwich board because the Impugned word was used by reference to the Prime Minister. 

The Magistrate’s reasons did not state the reasons why a reasonable person would have been offended. I interpolate that the Magistrate found that it was the use of the impugned word alone that was offensive. 

In both of these respects I am satisfied that the Magistrate fell into error. First, the Magistrate failed to give reasons for her finding as to why the conduct was capable of arousing a significant emotional reaction and was thereby offensive, and second the only available inference is that Magistrate decided that the use of the impugned word was of itself offensive.

Accordingly

Having found error, it is now necessary to consider the decision to be made on the basis of the facts and the law as they now stand. 

Was the conduct offensive? 

The only aspect of the appellant’s conduct that could be considered to be offensive was the use of the impugned word on the front of the sandwich board. The use of the upside down pointed capital “A” on the back of the sandwich board did not create the same logical inference that the use of the impugned word was intended and I am not satisfied beyond reasonable doubt that the reasonable person would read the back of the sandwich board as a reference to the impugned word. 

It should be noted that on both the front and back of the sandwich board that the appellant used the apostrophe in the same position as if he was using the word “can’t”. There was nothing that could have been considered to be offensive by the appellant wearing a sandwich board containing a political comment, in the absence of the impugned word, for example if the appellant had used the word “can’t” instead. 

At its highest, the prosecution case is that the use of the impugned word was used as derogatory description of the Prime Minister, and it is the use of the impugned word that is offensive. As a matter of law, the impugned word is not necessarily offensive, even when used in a public place: Dalton at 555. 

The impugned word is often used as a derogatory term to describe a person of any gender. In this use, it is best described as an expletive, rather than as an intensive or it being used for its literal significance. 

Politicians and their views are often subject to criticism in public. This is an essential and accepted part of any democracy. That criticism can often extend to personal denigration or perhaps even ridicule, but still maintain its essential character as political comment. There is no reason to conclude that the Prime Minister, as the leader of the Federal Government should be treated any differently to any other person who holds or seeks political office. 

The front of the sandwich board, at the height of the prosecution case, conveyed no more than a reference to the Prime Minister in derogatory terms. It was clear that the description of the Prime Minister was given by reference to disapproval with the policies of the government and or the Prime Minister’s decisions relating to those policies. 

The impugned word is now more prevalent in everyday language than it has previously been. It is commonplace in movies and television entertainment, although it is not without restriction in that context. The impugned word is of ancient English origin and featured in Shakespeare’s Hamlet. The prevalence of the impugned word in Australian language is evidence that it is considered less offensive in Australia than other English speaking countries, such as the United States. However, that also appears to be changing as is evidenced from the increase in American entertainment content featuring the impugned word. 

References to the impugned word are often included in print media, usually a reference to a direct quote with the “u” or the “un” removed. This treatment of the word does little to alleviate the meaning to be conveyed and is directed more at decorum than avoiding offence that may be caused by the publication of the impugned word. 

It was also open to read the front of the sandwich board as a play on words, comparing the similarity in the pronunciation of the word “can’t” and the impugned word. This is particularly demonstrated by the inclusion of the apostrophe in the relevant position. The front of the sandwich board is capable of being construed as being clever or light hearted and thereby removing or reducing the force of the impugned word. It is also capable of being read as the word “can’t”. 

I am not satisfied beyond reasonable doubt that a reasonable person considering all of the circumstances of the case would have had a significant emotional reaction such as anger, disgust, resentment or outrage to the appellant’s conduct. Whilst the conduct was inappropriate and in poor taste, I am not satisfied beyond reasonable doubt that it was offensive, or so offensive as to be considered in the high end of the range of what would be considered to be offensive.

Was the offensive conduct any more than the use of offensive language? 

The appellant’s second contention was that the appellant’s conduct involved no more than a use of offensive language and was thereby excluded from the offence of offensive conduct, by section 4(2) Summary Offences Act 1988. 

The term “use” is defined in the Macquarie Dictionary to “employ for some purpose, to avail oneself of, to expend or consume, or to utter words or speak a language”. The word in section 4(2) is “using” but I do not think that is a significant difference. 

Whilst the definition of “use” refers to spoken language, the appellant says that there is no good reason to restrict the meaning of the word to that narrow use in the context of the legislation. In other words, the display of the impugned word on the front of the sandwich board was no more than a use of offensive language. The prosecution case is that what the appellant did was to prepare and wear a sandwich board in a public place that contained offensive language and that the whole of his conduct should be considered to be offensive. 

To determine the interpretation of section 4(2) it is necessary to consider it in the context of the statute, bearing in mind the legislative purpose: SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] per Bathurst CJ. 

The offensive language offence in section 4A Summary Offences Act 1988, provides that, “[A] person must not use offensive language in or near, or within hearing from, a public place or school”. 

The narrow definition of “use” in this context promotes the purpose of the legislation, to restrict the uttering or speaking of offensive language in public places. The requirement that the offensive language must be used within the hearing of a public place or school supports this interpretation. 

The wider definition of “use” of offensive language, such as where it is written, is covered by the offence of offensive conduct. That interpretation is consistent with the limiting employment of the word “merely” in section 4(2). 

For these reasons, the word “using” in section 4(2) means speaking or uttering offensive language and the appellant has not made out this contention. 

Did the appellant have a reasonable excuse for his conduct? 

The Magistrate accepted the only evidence before her that the appellant made and wore the sandwich board for the purpose of making a political comment. 

If I am wrong in the conclusion that the appellant’s conduct was offensive, then it is open to balance the right of freedom of political communication with the offensiveness of the appellant’s conduct, to determine if the appellant had a reasonable excuse for his actions. 

In the present case, the appellant did not unequivocally use the impugned word. The front of the sandwich board presented a depiction of the word “can’t” that could be read as “cunt”, but it was not the only logical conclusion to draw. The language used was clearly a play on words. If the appellant’s conduct was offensive, contrary to my view, in my view it was only marginally so. 

The Magistrate accepted the appellant’s evidence that he did not intend to be offensive by using the words that he did. In my view this is also a relevant consideration. 

I am satisfied on the balance of probabilities that in the circumstances of this case that the appellant has demonstrated a reasonable excuse for his actions that in the course of expressing a political comment he published a play on words that was capable of being construed as offensive.

MacKinnon

'The Initial Test of Constitutional Validity: Identifying the Legislative Objectives of Canada's New Prostitution Laws' by Debra M. Haak in (2017) 50(3) University of British Columbia Law Review 657-696 comments 

The criminal law applicable to the commercial exchange of sex in Canada has shifted dramatically. Prior to 2013, buying and selling sexual acts was not illegal, but certain activities related to the conduct of prostitution were subject to criminal sanction. In 2013, the Supreme Court of Canada declared three offences applicable to adult prostitution inconsistent with the Charter and therefore void. The Supreme Court suspended the declaration of invalidity for a period of one year, returning the question of how to deal with prostitution to Parliament. In 2014, Parliament enacted the Protection of Communities and Exploited Persons Act. It is now a criminal offence to obtain sexual services for compensation in Canada. The constitutionality of the PCEPA has been questioned. Identifying the legislative objectives of the PCEPA will be a key step in assessing whether the criminal sanctions created by it accord with the principles of fundamental justice and may be demonstrably justified in a free and democratic society. In a recent article, Hamish Stewart suggested that the PCEPA may be unconstitutional on the basis that it has incompatible purposes of denouncing and deterring sex work while also seeking to improve sex workers’ safety. This paper examines how courts identify legislative objectives and identifies the legislative objectives of the PCEPA as reflected in the legislative record. The overall objective of the PCEPA is denouncing and deterring prostitution. This paper concludes that it is not an objective of the PCEPA or the criminal prohibitions created by it to make sex work safer for sex workers.

Constitutional Change, Judicial Transparency and Indigenous Recognition

'The Constitutional Duty to Give Reasons for Judicial Decisions' by Luke Beck (2017) 40(3) University of New South Wales Law Journal comments

There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error.

This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.

Beck argues

The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader 'culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed. This article contributes to that developing literature by arguing that in Australia there is an absolute constitutional duty to provide reasons for judicial decisions and by examining whether the general practice of the New South Wales Court of Appeal and the High Court complies with that duty when deciding applications f or leave or special leave to appeal.

There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is th at it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error. This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.

The article is structured as follows. Part II examines the existing authorities concerning the duty to give reasons for judicial decisions. Relying on the underlying principles of the authorities considered in Part II, Part III develops the argument that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. Part IV furthers the analysis in Part III by explaining what amounts to adequate reasons in order to comply with the constitutional duty to provide reasons for judicial decisions.

In Part V, the article examines the consequences of a failure to comply with the constitutional duty to provide reasons for judicial decision. Part V argues that a failure to comply with the duty is not simply an error of law, as existing authorities hold, but is in fact a jurisdictional error. The jurisdictional error arises because a failure to comply with the duty impairs the institutional integrity of the court and, possibly also, because a failure to comply amounts to a denial of procedural fairness. Part VI examines the content of the duty to give reasons in respect of applications for leave or special leave to appeal. Part VI explains the scope of the constitutional duty in the context of leave and special leave to appeal applications and undertakes an empirical analysis of decisions of the High Court and the New South Wales Court of Appeal to see whether practice is consistent with principle. Part VI also discusses the implications of the High Court’s regular failure to comply with the constitutional duty. Part VII offers some concluding comments.

The Final Report of the Referendum Council meanwhile has called for constitutional recognition of Australia's First Nations peoples.

The report states

The Council recommends: 

That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum. 

In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament. 

In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society. 

The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention. 

The Council further recommends: 

That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians. 

A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation. 

In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.

Exceptions

'The Jargon of Exception—On Schmitt, Agamben and the Absence of Political Society' by Jef Huysmans in (2008) 2(2) International Political Sociology 165–183 comments

The idiom of exception is again central to the politics of insecurity in Europe, the United States, and Australia. Its resurgence applies to a range of developments. Among the most visible are the “return of the camps” (for example, Andrijasevic Forthcoming; Cultures et Conflits 1996; Guild 2003; Le Cour Grandmaison, Lhuilier, and Valluy 2007; Neal 2006), counter-terrorism legislation and policy (for example, EU Network of Independent Experts in Fundamental Rights (CFR-CDF) 2003; Steyn 2003; Talbot 2002; The Center for Constitutional Rights 2002; van Munster 2004), increased focus on border controls (for example, Lynn Doty 2007; Salter 2007), and military interventions legitimated by humanitarian ethics and/or international law (for example, Reisman 1990, 1999). This article focuses on conceptions of exceptionalism, that is, the concepts of the political that are invested in the idiom of exception. It draws out how exceptionalist readings of sociopolitical developments frame political problems and solutions in a particular way, excluding the political significance of societal practice.

Fleur Johns observed in her analysis of Guantanamo Bay that events taking on the affect of exceptionalism soak up critical energies with considerable effect in liberal societies. “[I]t is the exception that rings liberal alarm bells” (Johns 2005). The liberal critique of current policy developments tends to define stakes and solutions in terms of exceptionalism, that is, a conflict between rule of law and executive, arbitrary government and/or the direct exercise of governing power over biologically, in contrast to politically, defined life. Johns is uneasy about such a development but does not develop why we should take exception to exceptionalism.

This article introduces one of the main reasons for sending out a distress signal about the rise in the idiom of exception. When exceptionalism soaks up critical energies in liberal societies, it risks suppressing a political reading of the societal. By reading the concept of exception through two of the most “popular” political theorists of the exception, Schmitt and Agamben, the article shows that structuring politics around exceptionalist readings of political power tends to politically neutralize the societal as a realm of multi-faceted, historically structured political mediations and mobilizations. Or, in other words, deploying the exception as a diagram of the political marginalizes the societal as a political realm. In doing so, it eliminates one of the constituting categories of modern politics (Balibar 1997; Dyzenhaus 1997), hence producing an impoverished and ultimately illusionary understanding of the processes of political contestation and domination (Neal 2006; Neocleous 2006).

Huysmans concludes

Working through Schmitt’s and Agamben’s conceptions of politics two related but different idioms of exception emerged. The Schmittian idiom works largely within a legal-constitutional framing of politics and arranges political stakes and dynamics through a specter of dictatorship. Its main characteristics are (1) a dialectic between law and politics, (2) a sovereign guarding the dialectic by deciding on legal transgressions as well as on conditions in which the institutionalized normative processes have become inoperable and demand a decision on a new constitutional order, (3) the structuration of a politics of fear by making enemy/friend distinctions the organizing principle of politics, and (4) the erasure of the “people” as a political multiplicity by a conception of nationalist politics that amalgamates the people into a unity produced by the leadership.

The other idiom, that Agamben unpacks, works with the total collapse of the dialectic between anomie and law and a biopolitical conception that organizes political stakes and dynamics through a specter of life. Its main characteristics are that (1) the exception has become the rule as there is no relation between law and anomie, law and politics—both exist in completely separate spheres, (2) life is no longer mediated by objective forms such as law and becomes naked biological being, (3) biopolitical power renders and acts directly upon naked life with no legal or other mediation—the concentration camps are the matrix of modern politics, (4) naked, anomic life displaces societal categories of life, such as class, legally mediated interests, and property relations, turning biopolitics into a struggle between the direct enactment of power upon this life and the anomic excesses of life that “resist” the sovereign biopolitical governance.

When Fleur Johns observes how exceptionalism soaks up critical energies with considerable effectiveness in liberal societies, she seems to lament the loss of something else, of some other form of critical energies (Johns 2005:629). This main thrust of this article has been to show that the idioms of exception indeed produce a categorical absence. They delete from the political the category that is a placeholder for various histories and sites of politically oriented societal practice as structured by objectified mediations. Paraphrasing Adorno, the idiom of exception has been called a jargon precisely because it marginalizes, and in the more radical cases, erases the societal as a realm of multi-faceted, historically structured political mediations and mobilizations. The article has deliberately introduced conceptions of the societal—such as liberal pluralism, Marxist class analysis, Foucaultian analysis of technologies of governance, etc.—only in very general terms, to keep the focus on the more “formal” thrust of the analysis, that is, identifying a “blind spot” and its consequences for how one interprets certain practices such as balancing liberty and security, democracy, and camps.

The main reason here for pointing out this absence has not been the sociological argument that Schmittean and Agambean concepts miss crucial elements of how current governmental practice work (Bigo 2007). Or, that they grant “little purchase on how these exceptions are in fact made, how they come to seem legitimate, and how they manage to destroy the liberties they are supposed to secure (…) [on] how those limits in turn generate identities, agencies, and institutions that work through practices of self-limitation, and transgression” (Walker 2006:78–79). The more central reason has been that reading the current political and security predicaments as a question of exceptionalism risks to reproduce a “jargon” that produces concepts of the political that at best marginalize and at worst eliminate from view the category that in modern political thought and history has been an essential component of democratic political practice.

NBN Governance

The first report of the Parliamentary Joint Committee on the National Broadband Network notes governance concerns and features the following recommendations.

R 1  that the  Government direct and enable nbn to complete as much as possible of the remaining fixed line network using FTTC at a minimum (or FTTP), and require nbn to produce a costed plan and timetable under which that would be achieved.

R 2 in light of recent results and developments, that the Australian Government commission an independent audit and assessment of the long-term assumptions underpinning nbn's financial projections and business case as set out in the Corporate Plan 2018-21.

R 3  that the  Government direct nbn to establish a regional and remote reference group to support the rollout of the NBN in rural and remote Australia. The reference group would include consumer advocate groups and departmental representation from the Department of Communications and the Arts and the Department of Infrastructure and Regional Development. Business decisions that fundamentally change the nbn experience for the end user in regional and remote communities should be referred to the reference group for consideration and analysis as to whether the decision will result in nbn not meeting its responsibilities as outlined in the Statement of Expectations.

R 4 that the Government ensure by appropriate regulation that end users are informed of, or can easily access and are directed to, clear information about the maximum attainable layer 2 speed of their NBN infrastructure/service on a per premise basis.

R 5 that nbn develop and implement a framework that ensures best-practice installation as part of an 'active handover' model, with reference to the approach of Chorus NZ, so that each premise is assured of network capability at the point it is ready-for-service, and repeat visits and remedial costs are avoided.

R 6   that nbn review and provide advice to the committee on how it:

• takes into consideration the added complexity and time requirements of installations to Service Class 0 and Service Class 10 premises, or equivalent areas, when calculating its progress towards completion goals; and 

• prioritises connections to areas that currently have no access to internet.

R 7  that the Australian Government require nbn to identify and disclose all areas that are currently designated to be served by a satellite connection that previously were set to receive the NBN by FTTN or fixed wireless, and explain why the change has occurred.

R 8 that the Australian Government require nbn to develop a plan that would provide access to nbn's fixed wireless towers for the provision of mobile telephony.

R 9 that the Australian Government ask nbn to consider providing the capacity for separate business and residential Sky Muster plans to be made available at the same location when business grade plans are introduced in 2018.

R 10 that the  Government set a benchmark for reasonable data allowance on Sky Muster plans, by reference to average data use across the fixed line network.

R 11  that the  Government ask nbn to establish a rural and regional reference group (see recommendation 3) and that nbn consult on Sky Muster services and changes to policy and rollout plans.

R 12   that the regulation of broadband wholesale services be overhauled to establish clear rights and protections for suppliers and end users of NBN broadband services. This framework should include: service connection and fault repair timeframes; minimum network performance and reliability; and compensation arrangements when these standards are not met. The committee requests that the Department brief the committee on progress in developing these protections by December 2017.

R 13  that nbn and RSPs develop business grade products specifically designed for the small business market which provide service guarantees and remedies. The committee requests that nbn and the Communications Alliance report back to the committee on progress in developing these products by December 2017.

R 14  that the Telecommunications Consumer Protection Code be amended to require that customers lodging a complaint with their retail service provider are specifically made aware of external dispute resolution options including the Telcommunications Industry Ombudsman at the time they initially lodge the complaint.

R 15  that the Telecommunications Industry Ombudsman be empowered to compel any relevant parties to a complaint to meet together or otherwise cooperate in order to facilitate the resolution of that complaint within a set reasonable timeframe.

R 16 that the  Government direct nbn to clearly identify the complaint handling process for consumers, including: complaint resolution processes and timeframes, and internal and external complaint escalation processes. This information must be provided by nbn in a way that meets Australian Government accessibility guidelines.

R 17  that the  Communications and Media Authority develop and introduce an updated Telecommunications Consumer Protections Code that specifically addresses issues raised in relation to customer experiences with NBN services. This should include mandatory, enforceable standards to regulate the marketing of broadband speeds, in line with the recent principles and industry guidance released by the Australian Competition and Consumer Commission. The updated instrument must ensure that end users have rights and accessible procedures to enforce those rights.

R 18 that the ACMA consider introducing an updated statutory determination, applicable to all NBN technology types, to require retail service providers to inform customers of any critical service issues and line impairments to ensure the customer has understood these issues, prior to a service commencing.

R 19  that nbn publish prominently on its website, monthly information relating to its end user satisfaction metrics, including:

• its overall net promoter score as measured each month; 

• the overall net promoter score for each technology type as measured each month; 

• relevant disaggregated information about end user satisfaction metrics in relation to each RSP; and 

• any relevant disaggregated information about end user satisfaction metrics in specific geographic areas, such as: 

• data broken down by state and territory; and 

• data relating to each fixed-line area in the rollout footprint, as areas are designated Ready for Service.

R 20 that the scope, function, and operation of the Telecommunications Industry Ombudsman (TIO) be expanded so that, among other improvements determined through the current review process, the TIO should keep data according to technology type, and should record and report multiple issues as separate items, especially where nbn and an RSP are both involved.

R 21 that the Department of Communications and the Arts publish the data it receives from nbn as part of its monthly reporting regime, including data relating to:

• network fault restoration; 

• service fault restoration; 

• connection performance, such as right first time activations; and 

• activities undertaken in accordance with service level agreement.

R 22 that nbn review and provide advice to the committee on its processes and conduct with regard to the engagement, training, coordination and dispute resolution with subcontractors, in accordance with global best-practice.

R 23  that the  Government ensure that digital inclusion is measured and reported. It has been suggested that the Productivity Commission assess and report on income and wealth inequality in Australia, and it may be worth including the measurement and reporting of digital inequality, as the two areas are likely to be increasingly related.