Socrates

'A Heretical View of Teaching: A Contrarian Looks At Teaching, The Carnegie Report and Best Practices' by Gary Shaw in (2012) 28(4) Touro Law Review argues that

Once again, law school pedagogy is the subject of close scrutiny and intense criticism. In 2007, two reports, the Carnegie Foundation for the Advancement of Teaching Report, Educating Lawyers  and Best Practices For Legal Education were published. Both of these publications have triggered extensive re-evaluation of the pedagogy in law schools. As Robert MacCrate states in the Foreword to Best Practices, the Carnegie Report and Best Practices share a central message. That message has three components. Law schools   should:

1. broaden the range of lessons they teach, reducing doctrinal instruction that uses the Socratic dialogue and the case method; 

2.  integrate the teaching of knowledge, skills and values, and not treat them as separate subjects addressed in separate courses;  and 

3.  give much greater attention to instruction in professionalism.

Both reports recommend that these changes be implemented throughout the entire curriculum, with the result that if their recommendations were followed substantial changes in the first year curriculum would occur. Indeed, the Carnegie Report states that "[a]lthough our discussion ranges considerably beyond the first-year experience, because that experience is so significant in shaping the whole of legal education, it is our emphasis". Best Practices concludes that in the first year, "[t]he Socratic dialogue and casebook method should be used sparingly. Context-based instruction, especially discussion of problems should be the prevalent method of instruction. "

The two reports differ to some extent in the deficiencies they find in the Socratic dialogue and their emphases on these deficiencies. The Carnegie Report states that the pedagogy absent in Socratic dialogue—what it terms the shadow pedagogy—has two components: experience with clients and concern that the legal profession lacks ethical substance. The Report also argues that law schools‘ overemphasis on legal analysis can color or even undermine their attempt to teach professionalism and ethics to such an extent that later attempts by law schools to inculcate these perspectives and skills may inevitably fail. 

Best Practices, on the other hand, not only shares the concerns of the Carnegie Report that Socratic dialogue has "significant defects as an instructional tool" and that it teaches "only a small part of the skills and knowledge needed to practice law effectively and responsibly", but goes on to state that the "most important reason to limit the use of Socratic dialogue is because too many law school professors abuse the method with the result that students‘ sense of "self-worth, security, authenticity, and competence" are unnecessarily undermined. 

Although the reports have much to recommend them, I believe that their position with respect to the first year curriculum is in error, and perhaps into part of the second year as well. In essence, their argument is two-fold. First, that Socratic dialogue intrinsically results in the problems mentioned and second, that experiential learning will teach analytical and synthesis skills, as well as fostering professionalism, better than Socratic dialogue. This article will address both these points. First, I argue that Socratic dialogue does not intrinsically cause the harms claimed above. This argument has two components. First, much of the harm attributed to Socratic dialogue is misguided and is in fact a critique of bad teaching technique rather than any flaw intrinsic in Socratic dialogue. Second, to the extent that some of the observations regarding the nature of Socratic dialogue are accurate, they should not be considered as flaws but rather as strengths with respect to the pedagogy that Socratic dialogue fosters. 

My second point, that in the first year, experiential learning does not teach analytical and synthesis skills better than Socratic dialogue, nor does it do a better job of fostering professionalism, also has two components. First, analysis and synthesis are foundational skills that are more effectively taught by focusing primarily on these skills by use of Socratic dialogue. Second, I argue that the inculcation of professionalism is not a function of method of instruction but rather a function of the entire culture created by the law school environment rather than the specific curriculum. Thus, within the first year curriculum, experiential learning is not intrinsically superior to Socratic dialogue for the purpose of inculcating professionalism. Rather, again, problems with respect to inculcating professionalism are a function of the quality of teaching rather than the curriculum. 

Finally, I argue that the failure of the Carnegie Report and Best Practices to recognize that many of the problems they are trying to address are due to poor teaching rather than the Socratic dialogue means those reports‘ recommendations cannot achieve the results hoped for. Current law school hiring practices do not select for good teachers. Instead, they select for qualities that are not predictive of quality teaching. Until law schools start selecting for teaching skills, the quality of law school faculty teaching is not likely to improve. And if the true problem is the ability of law school faculty to teach, then changing the curriculum without improving the quality of the teachers is unlikely to improve the law school educational experience.

Animalia

Three articles on animals, rights and identity in (2013) 1 Law, Ethics & Philosphy …

'Zoopolis, Intervention, and the State of Nature' by Oscar Horta comments that

In Zoopolis, Donaldson and Kymlicka argue that intervention in nature to aid animals is sometimes permissible, and in some cases obligatory, to save them from the harms they commonly face. But they claim these interventions must have some limits, since they could otherwise disrupt the structure of the communities wild animals form, which should be respected as sovereign ones. These claims are based on the widespread assumption that ecosystemic processes ensure that animals have good lives in nature. However, this assumption is, unfortunately, totally unrealistic. Most animals are r-strategists who die in pain shortly after coming into existence, and those who make it to maturity commonly suffer terrible harms too. In addition, most animals do not form the political communities Zoopolis describes. The situation of animals in the wild can therefore be considered analogous to one of humanitarian catastrophe, or to that of irretrievably failed states. It matches closely what a Hobbesian state of nature would be like. This means that intervention in nature to aid nonhuman animals should not be limited as Donaldson and Kymlicka argue.

Horta continues

Zoopolis: A Political Theory of Animal Rights is a novel, brilliantly argued and very instructive book. It addresses some of the most important topics in animal ethics in a fresh and original way, and opens new lines of inquiry. This paper focuses on what I consider the most significant problem Zoopolis tackles: whether and to what extent we should aid animals living in the wild. This controversial problem has received some recent attention (Sapontzis 1984; Ng 1995; Bonnardel 1996; Kirkwood and Sinsbury 1996; Bovenkerk et al. 2003; Clement 2003; Cowen 2003; Fink 2005; Clarke and Ng 2006; Nussbaum 2006: ch. 6; Dawrst 2009; Simmons 2009; Horta 2010a; McMahan 2010a, 2010b; Palmer 2010; Cunha 2011; Torres Aldave 2011) but remains relatively neglected. In fact, some may be surprised by my choice of focus here, but no other human practice affects a larger number of individuals than our decision regarding what we owe to animals in nature. 

Zoopolis claims that nonhuman animals living in the wild should be recognized as forming sovereign communities of their own, analogous to human sovereign political communities, which should be respected. Accordingly, like in the case of aiding other human societies, aiding animals in nature is sometimes permissible, and sometimes obligatory. But Zoopolis claims intervention must not disrupt the very structure of the assisted communities, and should not be rejected by the animals involved. Also, the aim of such assistance should be to bring the animal community back to a state in which it may self-regulate without external help. In practice, this means supporting many forms of intervention in nature to help animals, but it rules out some forms of substantial intervention. So, for instance, whilst Donaldson and Kymlicka would support vaccinating an animal population to save its members from a lethal epidemic, they would oppose altering trophic chains to avoid mass starvation, even if this could be done harmlessly (e. g., by supplying both food and contraceptives so that the additional food does not result in future starvation). 

Many will find that Zoopolis overestimates our duties towards animals in the wild. In fact, most assume that we have no reason to aid them because (a) we have no such moral obligations or (b) such animals do not really need our help. I agree with Zoopolis’ refutation of (a) (see ch. 2, especially 24, 29, 35), but with regards to (b) I will argue that animals in nature are in a far worse situation that Zoopolis assumes. Therefore, I will advocate more extensive intervention. 

Zoopolis claims that nonhuman animals living in the wild should be treated as members of sovereign communities. The authors write:

"What sort of competence is needed for sovereignty? We would argue that for wild animals — as indeed for humans — what matters for sovereignty is the ability to respond to the challenges that a community faces, and to provide a social context in which its individual members can grow and flourish (175)." 

These two conditions are not specified in detail. The authors do not, for example, indicate the extent to which the relevant challenges must be successfully met by animals in nature or what kinds of social context animal communities have to form. The first half of this paper discusses the first condition, the second the latter condition.

'Cosmozoopolis: The Case against Group-Differentiated Animal Rights' by Alasdair Cochrane argues that

relational position and group-based distinctions are less important in determining the rights of animals than Zoopolis concludes. In particular, it argues that the theory of animal rights developed in Zoopolis is vulnerable to some of the critiques that are made against theories which differentiate the rights of humans on the basis of group-based distinctions. For example, in the human context, group-differentiated theories of rights have been criticised on a number of important grounds: for failing to extend to non-associates rights that ought to be so extended; for granting too much weight to the rights of associates over non-associates; for wrongly treating groups as homogenous entities; and for also assuming that these groups necessarily have value as they exist presently. This paper outlines how modified versions of these critiques can be levelled at the theory of animal rights defended in Zoopolis. 

'A Defense of Animal Citizens and Sovereigns' by Sue Donaldson and Will Kymlicka responds that

In their commentaries on Zoopolis, Alasdair Cochrane and Oscar Horta raise several challenges to our argument for a "political theory of animal rights ", and to the specific models of animal citizenship and animal sovereignty we offer. In this reply, we focus on three key issues: 1) the need for a group-differentiated theory of animal rights that takes seriously ideas of membership in bounded communities, as against more "cosmopolitan" or "cosmozoopolis" alternatives that minimize the moral significance of boundaries and membership; 2) the challenge of defining the nature and scope of wild animal sovereignty; and 3) the problem of policing nature and humanitarian intervention to reduce suffering in the wild.

A pointer to Donaldson and Kymlicka's 'Unruly Beasts: Animal Citizens and the Threat of Tyranny' and Kymlicka's 2013 Hart Lecture is here.

Corruption

'A New Human Right to Freedom from Corruption' (Sydney Law School Research Paper No. 14/12) by David Kinley comments that

In the long battle against corruption, the last 20 years or so has yielded a number of international legal and institutional initiatives -- most notably, the OECD Bribery Convention and the UN Convention Against Corruption; regional anti-corruption conventions (in both Africa and the Americas); and the Financial Action Task Force; as well as a swathe of political responses, from G8 and G20 statements and UN resolutions, to civil society campaigns and organizations such as Transparency International and the World Economic Forum’s Partnering Against Corruption Initiative. In terms specifically of human rights, however, the response has not progressed far beyond baseline analyses of the negative human rights impacts of corruption and calls for that much to be recognized in efforts designed to combat corruption. What, in particular, is missing is any concerted effort to assess what precisely international human rights law could do to promote those efforts and what tangible added value a human rights approach might offer. The proposal advanced in this paper is intended to fill that gap. While it takes the form of an international human rights law instrument, it is nevertheless meant to supplement these other responses, not to replace or oppose them. What I am suggesting is that there ought to be recognized a specific, free-standing human right combatting corruption -- that is a "right to freedom from corruption" (RFFC) -- at the level of international law. As such, and like all international human rights laws, it would demand implementation in domestic jurisdictions, while providing normative guidance and supervision at the international level. This paper outlines (i) why we need such a new right, (ii) what form it should take and (iii) whether it would work in practice.

Dead Souls

As someone with an interest in population registers and identity crime I find it difficult to know what to make of tonight's claim by Clive Palmer - if I correctly understand the colourful millionaire, MP and conspiracist - that the Australian Electoral Commission (AEC) has failed to remove dead people from the electoral roll, a failure exploited by sundry unidentified identity offenders. Palmer's opponents (which judging by his past references to the CIA funding the Greens include the forces of darkness on a hellish crusade) are channeling Gogol's Dead Souls?

Palmer has claimed that "All our divisional returning officers are ex-military officers in the Australian armed forces", a claim that he hasn't substantiated and that is at odds with the Commission's comment that

AEC staff come from a variety of work backgrounds. Many have served as professional public servants throughout their careers, others have come to AEC from a range other specialist career streams including IT (information technology) and HR (human resources).

and reminder that "All AEC employees, as well as temporarily employed polling officials, must sign a declaration of political neutrality".

The AEC indicates that -

Death Deletions 

The State Registrar of Births, Deaths and Marriages advises the AEC of any recently deceased persons. The AEC then removes these people from the electoral roll. Each year over 100 000 death deletions are made to the roll, and in the period immediately prior to elections this activity is carried out on a daily basis.

It also indicates that

 Removing names from the roll 

When the AEC receives information that a person is no longer living at their enrolled address, a notice is sent to the elector advising that their name will be removed if a satisfactory reply is not received. Each year approximately 2% of all electors are removed by this process. Other grounds for removing names from the roll are that the elector is not entitled on citizenship grounds. Any elector may lodge a 'private objection' if they consider that another elector is not entitled to enrolment. Information on the private objection process can be obtained from any AEC office.

What would Gogol say, in mocking identity arbitrage?

"How long is it," inquired the guest, "since you last rendered a census return?" 

"Oh, a long, long time. In fact, I cannot remember when it was." 

"And since then have many of your serfs died?" 

"I do not know. To ascertain that I should need to ask my bailiff. Footman, go and call the bailiff. I think he will be at home to-day." 

Before long the bailiff made his appearance. He was a man of under forty, clean-shaven, clad in a smock, and evidently used to a quiet life, seeing that his face was of that puffy fullness, and the skin encircling his slit-like eyes was of that sallow tint, which shows that the owner of those features is well acquainted with a feather bed. In a trice it could be seen that he had played his part in life as all such bailiffs do — that, originally a young serf of elementary education, he had married some Agashka of a housekeeper or a mistress's favourite, and then himself become housekeeper, and, subsequently, bailiff; after which he had proceeded according to the rules of his tribe — that is to say, he had consorted with and stood in with the more well-to-do serfs on the estate, and added the poorer ones to the list of forced payers of obrok, while himself leaving his bed at nine o'clock in the morning, and, when the samovar had been brought, drinking his tea at leisure. 

"Look here, my good man," said Manilov. "How many of our serfs have died since the last census revision?" 

"How many of them have died? Why, a great many." The bailiff hiccoughed, and slapped his mouth lightly after doing so. 

"Yes, I imagined that to be the case," corroborated Manilov. "In fact, a VERY great many serfs have died." He turned to Chichikov and repeated the words. 

"How many, for instance?" asked Chichikov. 

"Yes; how many?" re-echoed Manilov. 

"HOW many?" re-echoed the bailiff. "Well, no one knows the exact number, for no one has kept any account." 

"Quite so," remarked Manilov. "I supposed the death-rate to have been high, but was ignorant of its precise extent." 

"Then would you be so good as to have it computed for me?" said Chichikov. "And also to have a detailed list of the deaths made out?" 

"Yes, I will—a detailed list," agreed Manilov. 

"Very well." 

The bailiff departed. 

"For what purpose do you want it?" inquired Manilov when the bailiff had gone. 

The question seemed to embarrass the guest, for in Chichikov's face there dawned a sort of tense expression, and it reddened as though its owner were striving to express something not easy to put into words. True enough, Manilov was now destined to hear such strange and unexpected things as never before had greeted human ears. 

"You ask me," said Chichikov, "for what purpose I want the list. Well, my purpose in wanting it is this—that I desire to purchase a few peasants." And he broke off in a gulp. 

"But may I ask HOW you desire to purchase those peasants?" asked Manilov. "With land, or merely as souls for transferment —that is to say, by themselves, and without any land?" 

"I want the peasants themselves only," replied Chichikov. "And I want dead ones at that." 

"What?—Excuse me, but I am a trifle deaf. Really, your words sound most strange!" 

"All that I am proposing to do," replied Chichikov, "is to purchase the dead peasants who, at the last census, were returned by you as alive." 

Manilov dropped his pipe on the floor, and sat gaping. Yes, the two friends who had just been discussing the joys of camaraderie sat staring at one another like the portraits which, of old, used to hang on opposite sides of a mirror. At length Manilov picked up his pipe, and, while doing so, glanced covertly at Chichikov to see whether there was any trace of a smile to be detected on his lips—whether, in short, he was joking. But nothing of the sort could be discerned. On the contrary, Chichikov's face looked graver than usual. Next, Manilov wondered whether, for some unknown reason, his guest had lost his wits; wherefore he spent some time in gazing at him with anxious intentness. But the guest's eyes seemed clear—they contained no spark of the wild, restless fire which is apt to wander in the eyes of madmen. All was as it should be. Consequently, in spite of Manilov's cogitations, he could think of nothing better to do than to sit letting a stream of tobacco smoke escape from his mouth. 

"So," continued Chichikov, "what I desire to know is whether you are willing to hand over to me—to resign—these actually non-living, but legally living, peasants; or whether you have any better proposal to make?" 

Manilov felt too confused and confounded to do aught but continue staring at his interlocutor. 

"I think that you are disturbing yourself unnecessarily," was Chichikov's next remark. 

"I? Oh no! Not at all!" stammered Manilov. "Only—pardon me—I do not quite comprehend you. You see, never has it fallen to my lot to acquire the brilliant polish which is, so to speak, manifest in your every movement. Nor have I ever been able to attain the art of expressing myself well. Consequently, although there is a possibility that in the—er—utterances which have just fallen from your lips there may lie something else concealed, it may equally be that—er—you have been pleased so to express yourself for the sake of the beauty of the terms wherein that expression found shape?" 

"Oh, no," asserted Chichikov. "I mean what I say and no more. My reference to such of your pleasant souls as are dead was intended to be taken literally." 

Manilov still felt at a loss—though he was conscious that he MUST do something, he MUST propound some question. But what question? The devil alone knew! In the end he merely expelled some more tobacco smoke—this time from his nostrils as well as from his mouth. 

"So," went on Chichikov, "if no obstacle stands in the way, we might as well proceed to the completion of the purchase." "What? Of the purchase of the dead souls?" 

"Of the 'dead' souls? Oh dear no! Let us write them down as LIVING ones, seeing that that is how they figure in the census returns. Never do I permit myself to step outside the civil law, great though has been the harm which that rule has wrought me in my career. In my eyes an obligation is a sacred thing. In the presence of the law I am dumb."

God's Army

What's striking about the Papua New Guinea Defence White Paper 2013 is the invocation of the almighty.

The introductory Address By The Prime Minister (p 6) states that

The PNGDF is expected to build to a manning level of 5,000 personnel by 2017 which will require it to almost double in size over the next four years. This will necessitate an increase of Defence’s current 1.45 % share of the GDP to a new level of 3 % by 2017.

As our nation is a ‘land of a thousand tribes’, the PNGDF must be representative of a truly national organisation. Our people want to hold the PNGDF in the highest of esteem. Hence the conduct and appearance of PNGDF personnel as well as the tidiness and cleanliness of Defence installations will have a profound effect on the morale of the wider public. The PNGDF must re-establish its basic routine and maintain the highest standards of discipline at all times. The tidiness and cleanliness of all Defence establishments must be a showcase for all publicly owned and maintained infrastructure and facilities.

Finally, the key to our success lies with good and ethical leadership and our relationship with God. We must build the mental, physical and spiritual strength of our servicemen and women and reinforce our relationship with God.

May God Bless Papua New Guinea and may He Bless our Defence Organisation.

The Foreword By The Minister For Defence concludes (p8) -

May God Bless PNG and may He Bless the development of our Defence Organisation.

The Introduction And Acknowledgements By The Chief Secretary by reads (p9) -

In developing this White Paper, I thank God for His Guidance and I wish to thank the Prime Minister Honourable Peter O’Neill CMG, MP; the Minister for Defence Honourable Dr. Fabian Pok, MEc, PhD, MP; and members of the O’Neill-Dion government for their vision and foresight.

The Executive Summary states (p 13) -

Developing our Spiritual Strength 

Fundamental to its development, the PNGDO [PNG Defence Organisation] must first address the spiritual welfare of its personnel with the aim of strengthening its relationship with God. Every PNGDO establishment must have a chapel and the Chaplaincy element must be adequately structured and resourced in order to nurture spiritual strength and bring the organisation closer to God.

The PNG Defence Organisation Values (p 23) "that shape its ethos, vision and mission" are 

• Service to God, Queen and Country; 
• Courage; 
• Integrity; 
• Honesty; 
• Commitment; 
• Compassion; and 
• Respect. 

The PNG Defence Organisation Ethos (p24) -

fundamentally binds the spirit of the Organisation together. It is written in Tok Pisin and translated into English as follows -

• Papa God igo pas - Put God first; 
• Bungwantaim – Mateship; 
• Painim rot – Initiative; 
• Go Tasol - Courage, determination; and 
• Kumul karim - We belong to PNG. 

 Chapter 9 - Developing Our Spiritual Strength - reads (p 32) thus -

At the heart of the PNGDO’s existence is the spiritual welfare of its personnel and their families. In an ever changing world of complex challenges that affect the family unit, the PNGDO must strengthen its relationship with God. 

The PNG Constitution fundamentally upholds our Christian values and on the 26th of August 2007, our nation signed a Covenant to remain true to God. We must bring the PNGDO close to God, remain true to the Covenant, and apply the Leadership example of Service that our Saviour Jesus Christ has bequeathed to us. 

The PNGDO is to promote the development of its spiritual strength through the following:

• The Directorate of Chaplaincy is to be created under the Personnel Branch; 

• The Directorate of Chaplaincy is to be allocated its own funding vote; 

• The PNGDO is to increase the recruitment of Chaplains and ensure that there is a full complement of Chaplains in all Units. Each of them is to be allocated the resources they need to effectively conduct their pastoral duties; and 

• PNGDF Chaplains must be able to provide pastoral services to all servicemen and women, regardless of their denomination or religious background. Chapels are to be built or allocated space in all current Defence establishments that do not have a Chapel (Kiki Barracks, HMPNGS Basilisk, FOB Kiunga, FOB Vanimo and FOB Kerowil) as well as in all future Defence establishments.

The Supporting Statement by the Commander PNGDF reads (p 63) -

God Bless Papua New Guinea, and may He Bless our Defence White Paper 2013. 

And in case you missed the message the Closing Statement By The Secretary For Defence (p 65) concludes -

God bless our Defence White Paper 2013 and may He bless Papua New Guinea.

Pending the coming military coup I trust that the Almighty is listening.

Barbaro

In Pasquale Barbaro v The Queen; Saverio Zirilli v The Queen [2014] HCA 2 the High Court has rejected argument by convicted drug traffickers Barbaro and Zirilli that they suffered unfairness at their sentencing hearing because the sentencing judge refused to receive any submission from the prosecution about what range of sentences could be imposed on each applicant.

The High Court has held, by majority, that the practice in Victoria of permitting or requiring counsel for the prosecution, in certain circumstances, to make a submission as to the available range of sentences for an offence is wrong in principle. That practice should cease.

In DPP (Cth) v Barbaro & Zirilli [2012] VSC 47 Barbaro and Zirilli each pleaded guilty in the Supreme Court of Victoria to conspiring to traffic a commercial quantity of MDMA ($10m plus), trafficking a commercial quantity of that drug, money laundering ($5.6m) and attempting to possess a commercial quantity of cocaine ($40m).

They agreed to enter pleas of guilty in relation to those offences following discussions between their lawyers and the prosecution. During those discussions the prosecution expressed its view as to the range of sentences that might be imposed on each applicant, i.e. the soft end of 'plea bargaining'. Investigation (Operation Inca, Zanella, Cardinia and Bootham-Moko) had resulted in litigation involving 31 defendants, over 600 witnesses and many thousands of telephone intercepts, and seizure of 4.4 tonnes of Ecstasy tablets (with an estimated wholesale value of $122m) concealed in a shipment of tinned tomatoes.

The Court of Appeal of the Supreme Court of Victoria had held in R v MacNeil-Brown (2008) 20 VR 677 that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender.

At the applicants' sentencing hearing, the sentencing judge made it plain that she did not intend to ask any party for submissions about sentencing range. The prosecution accordingly made no submission about what range of sentences could be imposed. Barbaro was sentenced to life imprisonment with a non-parole period of 30 years. Zirilli was sentenced to 26 years' imprisonment with a non-parole period of 18 years.

The applicants sought to challenge their sentences in the Court of Appeal on the basis (among others) that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the applicants and the prosecution. In Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288 the Court of Appeal rejected this challenge to the sentences. By special leave, the applicants appealed to the High Court, which has now dismissed the appeals.

It held that the prosecution has neither the role nor duty  to proffer some statement of the bounds within which a sentence may be imposed. The sentencing judge alone decides what sentence will be imposed.

Practice which resulted from MacNeil-Brown was accordingly wrong in principle and should cease.

The Court held that because the prosecution's submission as to an available sentencing range is no more than a statement of opinion, it was not unfair for the sentencing judge to have refused to receive such a submission. The Court also held that this refusal did not amount to a failure to take into account a relevant consideration in sentencing the applicants.

It commented [at 47] -

To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or “settlement” of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed. 

The applicants’ allegations of unfairness depended upon giving the plea agreements and the prosecution’s expression of opinion about sentencing range relevance and importance that is not consistent with these principles. The prosecution decided what charges would be preferred against the applicants. The applicants decided whether to plead guilty to those charges. They did so in light of whatever advice they had from their own advisers and whatever weight they chose to give to the prosecution’s opinions. But they necessarily did so knowing that it was for the judge, alone, to decide what sentence would be passed upon them

Faces

'Facebook and Face Recognition: Kinda Cool, Kinda Creepy' by Anna Bunn in (2013) 25(1) Bond Law Review 35 comments

 Facebook has recently been subject to scrutiny by privacy regulators in Europe, as well as by the US Federal Trade Commission, in relation to the introduction of its 'tag suggest' feature. This feature uses face recognition technology to create a biometric template of users' faces, and has been introduced to Facebook users as a default (opt-out) setting. One outcome of the recent scrutiny has been the temporary deactivation of the tag suggest feature. However, there is every indication that Facebook intends to re-introduce the feature in the not too distant future. This article canvasses some of the privacy implications of face recognition technology, particularly as it is used by Facebook, and in the private sector generally. Legal implications of Facebook's use of biometric templates and the generation and use of biometric information are considered by reference to the Privacy Act 1988 (Cth) as recently amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth). In particular, the threshold issue of the application of Australia's federal information privacy laws to overseas organisations that have no presence in Australia and do not have servers in the country is considered.

The Age has meanwhile announced that "Yes, Big Brother is watching … He's looking at you from billboards and he knows your age, sex and a lot more too".

Any fears you might have that Big Brother is watching you can now be officially confirmed. Come March, he will be. 

Next month the advertising industry will be employing new technology known as Anonymous Biometric and Objects Data Sensors (ABODS). Put simply, sensor cameras are placed behind or close to the screen frame of a digital billboard, biometrically sizing you up as you walk past. 

ABODS can tell age, gender and colour and also the number of people in front of a digital screen. This is advertising gold. 

It will be able to tell your age range, sex and the colour of your clothes. Armed with this information, it will throw the ads at you that best fit your demographic. 

If an advertiser wants to target a 20-something female, the first suitable passer-by will be served up an appropriately aligned ad. ABODS has already been trialled in a Melbourne shopping centre and deemed a success. ... 

ABODS can tell age, gender and colour and also the number of people in front of a digital screen. It can pinpoint the range of ages present at a certain time of day, where those ages tend to congregate, which shops they favour and whether most of the people in that age group prefer a particular colour. This is advertising gold. 

Muir hastens to add: “What we do is totally anonymous – we take no record of any personal info – the sensors are very broad and can only capture age range and gender, but no personal information.

“There's no way we can recall the data of any personal connection to anyone and a person's image is never recorded.” ... 

Despite the high-brow technology it is not hard to see some weaknesses in the methodology. If, say, a 70-year-old woman approaches the screen at the same time as a 15-year-old male – what ad is thrown up? Muir admits this was one of the most important difficulties the AdBidx team encountered. 

“We worked out that this would be done on a system of priority,” he says. “It might not target the elderly lady because it is looking for the right person for which to showcase a particular ad.”