Bits and Things

'Big Data, Open Data, Privacy Regulations, Intellectual Property and Competition Law in an Internet of Things World' by Bjorn Lundqvist comments

 The interface between the legal systems triggered by the creation, distribution and consumption of Data is difficult to grasp, and this paper therefore tries to dissect this interface by following information, i.e. ‘the data’ from its sources, to users and re-users and ultimately to its consumers in an ‘Internet of Things’, or Industrial Internet, setting. The paper starts with the attempt to identify what legal systems are applicable this process, with special focus on when competition law may be useful for accessing data. The paper conclude that general competition law may not be readily available for accessing generic (personal or non-personal) Data, except for the situation where the Data set is indispensable to access an industry or a relevant market; while sector specific regulations seem to emerge as a tool for accessing Data held by competitors and third parties. However, the main issue under general competition law in the Data industry, at its current stage of development, is to create a levelled playing field by trying to facilitate the implementation of Internet of Things.

'A Critical Axiology for Big Data Studies' by Saif Shahin in (2016) 19(4) Palabra Clave 972-996 comments

Big Data is having a huge impact on journalism and communication studies. At the same time, it has raised a plethora of social concerns ranging from mass surveillance to the legitimization of prejudices such as racism. This article develops an agenda for critical Big Data research. It discusses what the purpose of such research should be, what pitfalls it should guard against, and the possibility of adapting Big Data methods to conduct empirical research from a critical standpoint. Such a research program will not only enable critical scholarship to meaningfully challenge Big Data as a hegemonic tool, but will also make it possible for scholars to draw upon Big Data resources to address a range of social issues in previously impossible ways. Te article calls for methodological innovation in combining emerging Big Data techniques with critical/qualitative methods of research, such as ethnography and discourse analysis, in ways that allow them to complement each other. 

The techno-euphoria spurred by the advent of Big Data (e.g. Anderson, 2008) is slowly giving way to uneasiness about the social effects of enormous datasets and the algorithms used to compile and analyze them (boyd & Crawford, 2012; Crawford, Miltner, and Gray, 2014; Mahrt and Scharkow, 2013; Manovich, 2012; Shahin, 2016a). Reports of malpractices by major Big Data-enabled enterprises such as Facebook and Google that compromise user privacy (Dwyer, 2011; Rubenstein and Good, 2012), along with Edward Snowden’s revelation that the U.S. government was running surveillance programs on a global scale in collusion with technology companies (Bauman et al., 2014; Lyon, 2014), have made it plain that Big Data is not the panacea for all human problems that it is sometimes made out to be. Instead, Big Data may be reinforcing social divides and exacerbating a variety of social concerns. 

A ProPublica investigation revealed that a criminal risk assessment algorithm developed by a commercial enterprise, widely used by courts and law enforcement officials across the United States, “was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants” (Angwin et al., 2016, para. 16). A New York Times article highlighted a series of “mistakes” committed by commonly used Big Data technologies, including Google Photos tagging black people as “gorillas,” Nikon cameras asking Asians – who often have small eyes compared with Caucasians – if they were “blinking” (Crawford, 2016). Meanwhile, reports continue to emerge about social media companies becoming ever more intrusive, collecting increasing amounts of users’ personal data to serve advertisers and even running experiments manipulating user sentiments (Dewey, 2016). 

What do these concerns mean for journalism and communication research, a field in which Big Data is having a huge impact? Scholars in our field quickly took to Big Data studies: partly because much of Big Data is generated by media and communication technologies – mobile telephones, social media, and so on – and partly because Big Data started altering the economic and operational dynamics of established media institutions especially news organizations. The surge of interest in Big Data research, and awareness of its game-changing potential, is evident in the deluge of Big Data articles being published in communication journals; special is-sues on Big Data that several journals of note have come up with, including the Journal of Communication; Journalism and Mass Communication Quarterly; Journal of Broadcasting and Electronic Media; International Journal of Communication; and Media, Culture and Society; and the emergence of new journals devoted to Big Data research, such as Big Data and Society and Social Media + Society. 

This article provides an assessment of what Big Data research has come to mean in journalism and communication studies, identifying two expansive categories: research with Big Data and research on Big Data. Ten, drawing on Gitlin’s (1978) well-known critique of Katz and Lazarsfeld’s (1955) two-step flow theory as the “dominant paradigm” in media studies, the article examines the ideological underpinnings of Big Data research – now regarded as a “paradigm” in its own right (Burgess, Bruns, & Hjorth, 2013). Building on this critique, the article charts an agenda for critical Big Data research, discussing what the purpose of such research should be, what pitfalls it should guard against, and the possibility of adapting Big Data methods themselves to conduct critical research. It argues that a critical approach to Big Data is necessary not only because the problems posed by Big Data need to be explicitly examined in line with critical theory and methods, but also because developing such a research agenda can help critical scholarship in journalism and communication studies draw upon Big Data resources to address a broad range of social concerns in previously impossible ways.

Regulation Metrics

'Measuring the Temperature and Diversity of the U.S. Regulatory Ecosystem' by Michael James Bommarito II and Daniel Martin Katz comments

Over the last 23 years, the U.S. Securities and Exchange Commission has required over 34,000 companies to file over 165,000 annual reports. These reports, the so-called “Form 10-Ks,” contain a characterization of a company’s financial performance and its risks, including the regulatory environment in which a company operates. In this paper, we analyze over 4.5 million references to U.S. Federal Acts and Agencies contained within these reports to build a mean-field measurement of temperature and diversity in this regulatory ecosystem. While individuals across the political, economic, and academic world frequently refer to trends in this regulatory ecosystem, there has been far less attention paid to supporting such claims with large-scale, longitudinal data. 

In this paper, we document an increase in the regulatory energy per filing, i.e., a warming “temperature.” We also find that the diversity of the regulatory ecosystem has been increasing over the past two decades, as measured by the dimensionality of the regulatory space and distance between the “regulatory bitstrings” of companies. This measurement framework and its ongoing application contribute an important step towards improving academic and policy discussions around legal complexity and the regulation of large-scale human techno-social systems.

'The Economic Burden of Prescription Opioid Overdose, Abuse, and Dependence in the United States, 2013' by Curtis S Florence, Chao Zhou, Feijung Luo and Likang Xu in (2016) 54(10) Medical Care comments

It is important to understand the magnitude and distribution of the economic burden of prescription opioid overdose, abuse, and dependence to inform clinical practice, research, and other decision makers. Decision makers choosing approaches to address this epidemic need cost information to evaluate the cost effectiveness of their choices.

The authors sought to estimate the economic burden of prescription opioid overdose, abuse, and dependence from a societal perspective. They conclude that total economic burden of fatal overdose and abuse and dependence of prescription opioids is around US$78.5 billion, with over one third of due to increased health care and substance abuse treatment costs (U$28.9 billion) and approximately one quarter of the cost being borne by the public sector in health care, substance abuse treatment, and criminal justice costs.

Schmitt

‘Rational and Theocratic Authority in the Schmitt-Strauss Exchange’ by John P. McCormick in Poul F. Kjaer and Niklas Olsen (eds) Critical Theories of Crisis in Europe - From Weimar to the Euro (Rowman and Littlefield, 2016)

revisits scholarly investigations, conducted over twenty years ago, of the interwar writings of Carl Schmitt and Leo Strauss; writings in which ‘theology’ played a major role in Schmitt’s and Strauss’s criticisms of Weimar’s liberal democracy, and their respective critiques of Enlightenment politics, more generally. Two decades ago, many progressive scholars, myself included, feared that, in the wake of the Soviet Union’s collapse in 1989, a resurgent radical right in Europe might enlist religion as a crucial component in their authoritarian causes. But we never imagined that these authoritarian threats would themselves become— as they have to a remarkable extent—genuinely and thoroughly theocratic . I mention as just three examples: right-wing Christian movements in the US, politically active Orthodox Judaism in Israel, and radical forms of Islam in Europe and the Middle East. After more than twenty years’ reflection on the Schmitt-Strauss exchange, I believe that I now somewhat better understand the stakes that ‘political theology’ raises for the theocratic challenge to liberal democracy today. In this spirit, this chapter reflects a personal-political enlightenment that I hope is worth sharing with others. 

The conservative, and eventual National Socialist, jurist, Carl Schmitt, famously asserts, in The  Concept of the Political, that all genuine political philosophies are pessimistic concerning human nature. By relying extensively on Thomas Hobbes, a political thinker who strikingly illustrated the violent behaviour of man to man in the absence of authority, Schmitt clearly assumes that he has grounded his state theory on a sufficiently pessimistic conception of human beings. Indeed, what could be more pessimistic than a theory like Schmitt’s ‘friend/enemy thesis’, which insists on the centrality of enmity to political life? 

Yet, in his widely celebrated contemporary commentary on Schmitt’s 1932 book, the young Leo Strauss insists that Hobbes’s notion of man as dangerous but educable — a notion that Schmitt never fully rejects — is not sufficiently pessimistic to justify the kind of political philosophy that both Schmitt and Strauss seek as an alternative to liberalism. I will argue that Strauss, in the 1920s and early 1930s, sought a functional equivalent to traditional theocracy — a Biblical atheism, as it were—that might serve as a foundation of political authority in a simultaneously post-theistic and post-Enlightenment age. 4 Schmitt, as we know, sought an appropriately fascist (if not yet Nazi) solution to what he deemed to be liberal theory’s hopelessly contradictory principles, and liberal practice’s painfully obvious inability to resolve the near civil war circumstances of the late Weimar Republic. 

According to both Schmitt and Strauss, even though Hobbes deems man ‘dangerous’ in circumstances where authority is absent, the Malmesbury philosopher affords the subjects of his Leviathan state significant freedom of thought and action on the assumption that individuals, when governed by a sufficiently strong state, can be prudent, educable, and capable of rational, cost-benefit calculations that may prove conducive to public peace and stability. Schmitt thinks he can correct these flaws in the Hobbesian state by refounding it on collective—rather than individual— grounds. 

Strauss retorts that Schmitt’s reformulation still permits too much freedom of conscience and behaviour for state subjects. In relying on Hobbes, Schmitt may affirm the importance of ‘sovereignty’, but he eschews the necessity of, in Strauss’s word, ‘dominion’. If Schmitt were to understand human evil in terms of ‘moral baseness’ or ‘sinfulness’, then, Strauss suggests, Schmitt would elaborate a more comprehensive notion of ‘ruling’ than Hobbes countenanced or Schmitt himself articulates. Rather than correcting addressable flaws in Hobbes’ system, Schmitt, by not clarifying his own view of human nature, still allows essentially liberal freedoms to persist as dire threats to both the stability of his neo-Leviathan state, and to any substantive notion of the good life. 

Given the sinful, morally base character of human evil, Strauss insists that public order requires an authority more intrusive than the sovereign state—an authority that imposes a substantive vision of the good life that cannot be derived from modern sources, whether they be early-modern notions of natural right, or what he calls elsewhere ‘the execrable principles of 1789’. Strauss suspects that Schmitt, a renowned Roman Catholic critic of liberalism, fundamentally agrees with him; despite what he appears to say to the contrary, Schmitt must believe that human beings are inherently sinful. 

A perspective that understands sinfulness as moral baseness asserts that humans are driven to do wrong not by material deprivation or by the desire to satisfy bodily appetites, as liberals would have us believe. Rather, human beings take fiendish pleasure in doing precisely what they know to be wrong; they take supreme gratification by committing evil, as such. Statutory law associated with the modern Rechtsstaat cannot tame humanity’s inherent sinfulness; nor can it cultivate the natural human intuition of goodness that necessarily accompanies the base human de- sire to violate it. 

This chapter explores the place of educable versus sinful evil in the respective efforts of Schmitt and Strauss to develop genuinely ‘authoritarian’ alternatives to liberal state theory in interwar Germany. Specifically, it addresses several of Strauss’s readings of Schmitt on the moral cum theological status of the political: his assumptions concerning the extent to which Schmitt actually endorses a notion of human evil as sinfulness or moral baseness; his assertion that Schmitt deliberately hides the moral dimensions of the political; and his mischaracterization of what Schmitt deems to be the ultimate danger confronting the political in their age— that is, whether Schmitt fears that the political will disappear altogether or merely that it will be practiced ‘dishonestly’. 

Much more than his disciples claim, Strauss shared deep affinities with Schmitt’s agenda in The Concept of the Political. By affirming ‘the political’, Schmitt celebrated the return of enmity as a harbinger of the reassertion of authority, the prospect that, in the present moment, a new postliberal world order might arise afresh. Only a few years before, in 1929, Strauss had expressed similar exhilaration at the return of sharp distinctions among different groups of neighbours: the demise of the commitment to ‘love thy neighbour’ at the heart of Enlightenment philosophy, spelled, for Strauss, the return of moral affirmation and a revival of quasi-Biblical authority. However, rather than a self-critical, quasi- universal, Biblical tradition affiliated with the Hebrew prophets, Strauss exclaims, somewhat alarmingly, ‘we must ask ourselves seriously whether perhaps the kings were right’. Strauss turns to the Biblical legacy to reaffirm the harsh necessities of warfare and rule, rather than the universal morality philosophically developed by the assimilating liberals of the German-Jewish Enlightenment. 

Schmitt’s endorsement of National Socialism in 1933 makes clear the kind of authoritarianism he sought as a replacement of liberalism — again, a suitable, if not first choice, alternative for the conservative jurist.Strauss’ position, as conveyed by his writings of this era, is more elusive.I will therefore try to sketch out the kind of authoritarian alternative toliberalism, the kind of revived premodern, ‘regime as regimen’, thatStrauss was formulating in his writings before his emigration to the Unit-ed States.

Software-enabled consumer products and US copyright

he US Copyright Office last week released a report titled Software-Enabled Consumer Products: a report of the register of copyrights december 2016 responding to a request by Senators Grassley and Leahy that noted

the ubiquity of software and how it plays an ever- increasing role in our lives. ... the expanding presence of software embedded in everyday products requires careful evaluation of copyright's role in shaping interactions with the devices we own.

The report

details how copyright law applies to software-enabled consumer products and enables creative expression and innovation in the software industry. For many innovators, copyright's incentive system is the engine that drives creation and innovation. But the spread of copyrighted software also raises particular concerns about consumers' right to make legitimate use of those works-including resale, repair, and security research. ... 

the Office believes that the proper application of existing copyright doctrines to software embedded in everyday products should allow users to engage in these and other legitimate uses of works, while maintaining the strength and stability of the copyright system. The Office thus is not recommending any legislative changes at this time.

The Executive Summary states

U.S. copyright laws have protected computer software for many years, and today that regime of legal protection supports an industry that is a major engine of economic growth. In the last quarter century, the software industry has added millions of jobs and increased the U.S. gross domestic product by hundreds of billions of dollars. Software has transformed our way of life, paving the way for personal computers, video games, digital photography, the internet, music and movie streaming services, smartphones, the Internet of Things, cryptocurrencies, and self-driving cars. In the near future, software will be behind even more innovations, like artificial intelligence and advanced robotics. In short, as one software entrepreneur famously put it, “software is eating the world.”  One result of the spread of software is that consumers now routinely use software- enabled products for everything from adjusting the thermostats in their homes, to driving to work, to getting a midnight snack from the fridge. This near-ubiquity has led some to question whether current copyright laws provide adequate guidance regarding the sometimes complex copyright issues arising in relation to software embedded in consumer products. These concerns span a wide range of uses, including resale, repair, research, and beyond. For example, to the extent that repairing a software-enabled device requires copying or altering a copyrighted computer program, does the law limit consumers’ right to engage in such activity? How might consumers’ ability to sell or convey such a device be affected if the embedded software is subject to a licensing agreement?

In light of these and other concerns, in October 2015, Chairman Chuck Grassley and Ranking Member Patrick Leahy of the Senate Judiciary Committee (the “Committee”) requested that the Copyright Office provide its expert advice, in “an effort to better understand and evaluate how our copyright laws enable creative expression, foster innovative business models, and allow legitimate uses in this software-enabled environment.” Among other issues, the Committee requested that the Office study and report on:

(1) the provisions of the copyright law that are implicated by the ubiquity of copyrighted software in everyday products; 

(2) the law’s effect on the design, distribution, and legitimate uses of such products, as well as on innovative services related thereto; 

(3) the effects that statutory changes in this area could have on stakeholder interests and business models; and 

(4) the intersection of copyright provisions with other areas of law in this context.

The Committee also asked the Office to make appropriate legislative or other recommendations, if it believed changes were necessary.

The Committee’s request was limited to embedded software in everyday products. The Committee did not ask the Office to review copyright law as applied to software and computer programs generally. Accordingly, a foundational issue in this Report is how to define the specific subset of software that is the subject of this study. As discussed in Part II, the Office found a general consensus that it would be a mistake to statutorily distinguish between software in everyday products and other kinds of software. At the same time, there is no question that the spread of software in everyday products raises unique issues. These products share certain common characteristics, and since the Office’s focus is on products with these shared traits, the Office does not analyze software generally.

The Copyright Office endeavored to examine how existing copyright law doctrines might address the particular issues that arise with respect to these products. In Part III, the Report describes the relevant copyright law doctrines potentially operating in the context of software-enabled consumer products. In addition, the Report briefly identifies some of the complex issues outside of copyright—including privacy and cybersecurity—that have arisen in this context. These issues are being investigated by a number of other components of the federal government, including the Federal Trade Commission, the Department of Homeland Security, and the Department of Commerce. The Copyright Office’s analysis is thus limited to the copyright issues presented by the spread of software-enabled consumer products.

Part IV then addresses how software-enabled consumer products can be resold, repaired or improved, researched for security flaws, or made to interoperate with other products or software. In each case, the Office finds that faithful application of existing copyright law doctrines should provide no barrier to legitimate uses.

In short:

• The Office’s study did not reveal evidence that consumers have been prevented from reselling or otherwise disposing of their software-enabled consumer products. The Office does not see a current need for legislative change relating to resale, so long as courts properly apply the first-sale right embodied in section 109 of the Copyright Act. 

• The Office recognizes the value of allowing the public to freely repair defective consumer products and tinker with products to improve their function. But establishing a new statutory framework explicitly permitting repair and tinkering does not appear to be necessary at this time. Properly understood, existing copyright law doctrines—including the idea/expression dichotomy, fair use, merger, scènes à faire, and section 117—should continue to facilitate these types of activities. 

• Similarly, the Office recognizes the value of allowing the public to engage in good-faith security research of software-enabled consumer products. Again, however, statutory changes (at least outside the context of the anticircumvention provisions in section 1201) do not appear to be necessary at present. Existing copyright law doctrines should protect this legitimate activity. 

• The Office recognizes the significance of preserving the ability to develop products and services that can interoperate with software-enabled consumer products, and the related goal of preserving competition in the marketplace. While a new statutory framework might help reduce some uncertainty in this area, such action does not appear to be necessary at this time. Again, faithful application of existing copyright law doctrines can preserve the twin principles of interoperability and competition.

The Copyright Office also examined the reach and scope of licensing practices for embedded software, an issue that implicates several subsidiary issues, including: the relationship of the Copyright Act to state contract law; whether, and in what circumstances, violations of the terms of software licenses would constitute copyright infringement; and confusion among consumers regarding licensing terms for embedded software. The Office’s study found that, in certain circumstances, such as resale, there is only limited evidence regarding real-world restrictions. Accordingly, the Office believes that the question of ownership versus licensing, while very important, is one that can be resolved with the proper application of existing case law.

The Copyright Office acknowledges that relying on flexible doctrines like merger, scènes à faire, and fair use brings less certainty than bright-line legislative fixes would; in some cases, clarification may only come after litigation. But formal application of copyright law to software-enabled consumer products is still relatively recent. In the context of the technologically driven products at issue in this Report, legislation carries its own risks, including that it might address the technologies of today but may fail to anticipate the different technologies—and distinct concerns—of tomorrow. In that respect, established copyright doctrines benefit from the ability to adapt more deftly to specific situations. As this Report demonstrates, copyright doctrines such as fair use, merger, and scènes à faire have regularly been extended and applied to new technologies as they have developed. And the Office offers this Report as a roadmap of sorts for those seeking to make legitimate use of embedded software.

In sum, the Copyright Office believes that existing copyright law is, at least at this time, well-suited to handle this new age of embedded software, so that innovators can continue to improve our lives and revolutionize our world.

Deportation

Reading of the Returning Offenders (Management and Information) Act 2015 (NZ) noted in the preceding post was triggered by media coverage about the impending deportation of 'career criminal' Pio Steve, a New Zealand national who has lived in Australia most of his life.

The SMH reports

New Zealand's Labour Corrections spokesman Kelvin Davis said Steve was a "product" of Australia. 

"He went to school and was shaped in Australia. He's an Australian. It's unfair of them to dump him here, because it makes New Zealand less of a safe place," said Mr Davis. 

In Steve and Minister for Immigration and Border Protection (Migration) [2016] AATA 1054 the Minister's decision to cancel Steve's visa was affirmed.

The Tribunal stated

The applicant, Mr Pio Steve, is a 49 years old citizen of New Zealand who arrived in Australia on 6 May 1968.

On 1 September 1994, Mr Steve was granted an Absorbed Persons visa.

On 29 April 2016, Mr Steve’s Absorbed Persons visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) after he was sentenced to three years imprisonment on 22 May 2015.

On 21 May 2016, Mr Steve lodged a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A).

On 2 September 2016, the Minister’s delegate decided not to revoke the cancellation decision. Mr Steve subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.

The matter was heard in Sydney on 24 and 25 November 2016. Mr Steve attended the hearing in person and had legal representation.

Mr Steve was born in New Zealand in 1967 and came to Australia with his parents when he was 13 months old. He has never returned to New Zealand. His father was a New Zealand citizen. His mother was born in Poland; she came to Australia with her family after the Second World War and became an Australian citizen in 1964.

Mr Steve was the eldest of three siblings. There were some arguments in the family home during his childhood, which were attributable to his father’s behaviour. His father died when Mr Steve was in his late teenage years and his younger sister died when he was 20 years old. He described close continuing relationships with his mother and younger brother.

After completing his Year 10 School Certificate, Mr Steve trained as an apprentice chef and worked as a ‘chain man’ for Blacktown Council. Mr Steve was introduced to heroin by his then-girlfriend’s brother when he was 18 years old and he subsequently developed an addiction. Since his late teenage years, Mr Steve has been ‘in and out of jail’. He lived in Queensland for several years in the late 1990s; during this time, he was able to maintain drug abstinence and consistent employment. Mr Steve returned to Sydney in 2000 and relapsed into substance use. In 2008, Mr Steve was hit by a bus and sustained injuries to his left eye, nerve damage and impaired sensation on his left side and spinal damage in his lower back.

Criminal record

Mr Steve has an extensive criminal record dating from 1985 to 2015. Some of the criminal offences described in his National Police Certificate dated 22 March 2016 are set out below:

30 March 1990: conviction in Penrith District Court: ‘Accessory after the fact of break, enter and steal’ – minimum sentence of two years imprisonment; ‘Larceny motor vehicle’ – minimum sentence of two years imprisonment; and ‘Break, enter and steal’ – minimum sentence of two years imprisonment. 

30 October 2003: conviction in Penrith District Court: ‘Driving while disqualified from holding a licence’ – sentence of six months imprisonment; ‘Break and enter building and steal value <$15,000’ – sentence of two years imprisonment with a non-parole period of 18 months. 

25 June 2010: conviction in Parramatta Drug Court: ‘Break and enter building and steal value <$15,000’ – sentence of two years and six months imprisonment with a non-parole period of 12 months; ‘Break and enter building and steal value <$15,000’ – sentence of three years and six months imprisonment with a non-parole period of 15 months; ‘Shoplifting’ – sentence of three months imprisonment and ‘Possess prohibited drug’ – sentence of one month imprisonment. 

16 September 2010: conviction in Blacktown Local Court: ‘Affray’ – sentence of one month imprisonment; and ‘Common assault’ – sentence of three months concurrent imprisonment. 

12 August 2011: conviction in Mt Druitt Local Court: ‘Common assault’ – sentence of nine months imprisonment with a non-parole period of six months. 

21 August 2014: conviction in Mt Druitt Local Court: ‘Shoplifting value <$2,000’ – sentence of 12 months imprisonment with a non-parole period of six months. 

22 May 2015: conviction in the Parramatta District Court: ‘Aggravated break and enter and commit serious indictable offence in company’ – sentence of three years imprisonment including a non-parole period of two years; and ‘Goods suspected of being stolen in/on premises’ – sentence of three months imprisonment.

Mr Steve also has a substantial record of traffic offences including driving an unregistered and uninsured vehicle, speeding, and several offences of driving while disqualified.

The power to revoke a visa cancellation

Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.

Under s 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.

Mr Steve has a ‘substantial criminal record’ and so he does not pass the character test. Mr Steve does not dispute this. I must therefore consider whether there is another reason to revoke the original cancellation decision. When considering whether to revoke the cancellation decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.

The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. 

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. 

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia. 

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa. 

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. 

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia. 

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

NZ Returnees

From the 17 November 2015 Second Reading Speech regarding the Returning Offenders (Management and Information) Bill, passed as the Returning Offenders (Management and Information) Act 2015 (NZ) -

 In this slightly unusual situation, where we are having the second reading immediately following on from the first reading, I do not propose to do what I would normally do in a second reading debate and go through in some detail a number of the matters that I set out in my first reading contribution. Instead, what I want to do is take the time to expand further on some of the rationale for the structure of the bill and the way it will operate, to provide the House and anyone following this debate with a little bit more context around that. Then I do want to touch on some of the allegations that have been made around what is perceived as delay, and I can assure the House that there absolutely has not been.

So if we start with the operation of the bill, I said in my first reading contribution that the bill is about trying to replicate as closely as possible—and I do not pretend that it is an exact replication—the sort of supervision and management of offenders that they would likely have been subject to if they had served the same sentence in New Zealand. The reason it is not an exact fit, and the reason that it has been very complex to work through these policy matters, is that, of course, you are dealing with a regime that needs to apply in a blanket way and yet be very careful to not traverse unfairly on the rights and the provisions of natural justice and the rule of law in respect of the returning offenders; have the right sort of oversight in place; and also provide the flexibility to seek additional specific conditions when that is needed, in the absence of the mechanism that is normally used in New Zealand, which is the Parole Board.

So it is very easy, I think, at this stage, when all that work has been done, to look at the framework and say: “Well, you know, you could have banged that out sooner.” But the reality is that we were having to spend far too long—far too long, actually—negotiating with Australia to get the right information, so we could assess the type of people coming back; the risk profile; the sort of information that anyone who has been a Minister will understand you absolutely must have before you can work through any of the processes the Cabinet Manual requires around quantification of the impact of the changes you are proposing and the cost of them; making sure we had the budgetary provisions in the Cabinet paper to make sure it was adequately resourced; and getting all of the appropriate components that you have to be able to certify, as a Minister, when you are bringing proposals for a new policy to Cabinet and then to this House. To do all of that, as I say, it was a matter of working with corrections and with police, but they really could not even begin to do their work until Australia had stepped up and provided us with this information.

I have said publicly, and I will say here again in the House, that I am disappointed that we, as a close neighbour and for a long time a close friend of Australia, found ourselves in the position where the impact on New Zealand was brought to my attention first in February of this year. What that meant was that New Zealand found itself starting from a completely cold start once the law was already in operation. That is not ideal, that is not the way that we expect to deal with Australia, but that is the position we were in—that is the position I was in.

I think we responded in an absolutely timely way. My officials have confirmed that the first advice that ever came in front of me—it was certainly not mentioned in the briefing to the incoming Minister; it was not mentioned in any briefings at the time—was on 12 February. At that point I instructed them to begin work immediately on this framework. The suggestion that some members of this House have made that somehow that is all just a bit of precursor fluff and the work actually starts when you start drafting, I think reflects a lack of understanding of the process. Drafting is the end of the process.

I want to commend and pick up on the comments that my colleague Chris Bishop made when he commented on the section 7 New Zealand Bill of Rights Act report by the Attorney-General. I would say this, but I think he is absolutely right. These are issues that could so easily have gone one step too far in terms of the New Zealand Bill of Rights Act issues, or, equally, one step too light in terms of protection. We have ensured that we did everything we could to land it in an appropriate place. Yes, the bill has continued to evolve, particularly with the news that came through to us in the last few days around this large number of offenders who are on their way back, where Australia has not given us advance notice and has not given us a lot of lead time with the information. That information has been followed up on. Given that that is now a new development in the way these processes are flowing—and it was certainly not mentioned in any of the briefings—we have continued to make sure that that is as tightly provided for in the bill as we can.

I mentioned that the bill, effectively, replicates a parole framework. What that means is that if you have been—not you. If the offender—sorry, Mr Assistant Speaker; it certainly would not be you. If the offender has been released from custody in the overseas jurisdiction—and can I just get on record, very clearly, that although a lot of the debate is around Australia, and that is absolutely the source country for the vast majority of the people whom this bill will touch, it is not the only country. This bill applies to anyone deported to New Zealand, from any jurisdiction—we just have to bear that in mind. The framework applies when the offender is released within 6 months of their return and released from custody, and that definition of “in custody” very clearly also covers any time they spent in detention centres.

The reason for that is that what these conditions are about, whether they are applied in New Zealand or under this bill, is helping to oversee the highest-risk period for an offender, which is the time when they are first released from prison. The longer they have been in prison, the harder that reintegration is, and therefore the longer the monitoring tends to occur. It is not a punitive attack on the offender; it is about making sure that someone who has been in an institution and under very strict rules for a long period of time is carefully monitored and watched for offending behaviours and for the assistance they will require as they reintegrate. If someone has served an offence in Australia, for instance, and has been living and working and going about their business in Australia for some time, it would not be appropriate to then turn round and impose those sorts of oversight conditions. If, however, they have only recently been released, then we absolutely need to be tracking that sort of behaviour.

The bill then goes on to provide that there is recognition that, although we have an automatically applying framework, some offenders will require a more directive, more restrictive set of conditions. Their offending will justify that. In that case, the conclusions that I reached through that policy development process were that it would be quite inappropriate to try to provide for that in this legislation. The risk of getting it wrong, one way or the other, was simply insurmountable. So what the bill provides is that in that instance there are whole new powers to go to the District Court, and have the District Court act in lieu of a Parole Board to make the case by case assessment as to when those additional, more restrictive conditions are required.

The final piece is the collection of information. I want to pick up on the comments Metiria Turei was making in the first reading around the definition of “identifying particulars”. We did have a good discussion, for which I thank her, on this point. She had picked up a concern that I was also considering at that time, which was just saying—had that actually gone too far? Had the information that the police had asked us to provide for—was it too much, in that they did not need it? Actually, I felt that it was a fair point. We went back and looked at it, and agreed that actually narrowing that down to the definition in the Policing Act was appropriate. But let us not cast aside how critical it is that we have that information. There is every prospect that as offenders are returned to New Zealand, and we get their biometric details and the like, we might find some cold cases, unsolved in New Zealand, now resolved. We do not know that, but I would not be the slightest bit surprised if that is the case. It certainly means that that information will be held in the same way it would be if they had been serving sentences here.

The last point I want to make in this contribution is just really to inject a little bit of a calm note, I guess, into what has become at times—not in this House, where I think the debate has generally been reasonably constructive—but actually in some of the media commentary there has been a degree of almost hysteria. Let us remember that we release people from our prisons in New Zealand every single day. These are people, whether they have served their sentence in New Zealand or Australia, who have been sentenced and have served their sentence, and, actually, in our system of justice and in most systems of justice around the world, when you serve your sentence you return to the community. That is the reality.

So all this hysteria about “There’s murderers walking around. There’s rapists walking around.”—actually, every single day we release from New Zealand prisons people who have committed serious offences. These people are in the same category. So let us not overblow this. Let us not suggest that somehow the public should be battening down the hatches. It is actually still a relatively small number of people, compared with the New Zealand population, and the same sort of people, and the same sort of conditions that happen in New Zealand. Yes, it is important that we have a commensurate regime in place, but let us not suggest that somehow the bogeyman has landed and it is the beginning of the end. We need this legislation, but I think some of the hysteria from some quarters of the media has been unhelpful. With those words, I commend the bill at its second reading.

In response the Labour spokesperson stated

I want to respond to an issue that has come up across the House during the initial first reading of this bill. That question has been that we somehow, as a party, are not able to critique the speed of this legislation and the timeliness of it because we have had offenders from Australia deported into New Zealand under a Labour Government. We also had Australian offenders deported here to New Zealand under a National Government before that. No one has ever argued that we have not had a regime that allowed, legitimately, New Zealand citizens to be deported to New Zealand. What has changed under this Government, in recent times, is that an amendment was made to Australia’s immigration Act that has led to a significant increase in the number of people being deported here—significant. In fact, from what I have seen, it is up to five times per month the number of offenders than we have seen in the past. So the scale has changed significantly.

The second thing that has changed is that, finally, New Zealand was able to negotiate an information-sharing arrangement, which allowed a monitoring regime to be put in place—pretty critical if you are going to undertake this piece of work. Things are not the same as they were 7 long years ago, when Labour was in Government, so I think it is probably not necessarily the legitimate point of debate that members on the other side of the House would like it to be.

Like the Minister Amy Adams, I think this is an unusual second reading speech, given that it is immediately after the first reading. Usually at this time we would have a conversation about the changes that have been made at a select committee. I want to use this opportunity to just highlight, again, that it would have been useful if we had—as Metiria Turei and as David Parker have mentioned—a dual-track process that would allow this stopgap law to be put in place, but we allowed for parliamentary consideration and a new regime to replace this law in a year’s time. If you look at the regulatory impact statement—under external consultation, 3.6: “In the time available only New Zealand Police, the Department of Corrections, and Crown Law were consulted on drafts of this bill.” I know, given the short time frame—we were being consulted right up to this morning on some changes—that that consultation would have been relatively rushed. There was no Law Commission, no Law Society, no Parole Board, no PILLARS—groups that always bring to the table substantive and useful arguments and critiques of this kind of legislation. Again, I want to make that point: we still could have been debating a dual-track process, the public still could have had their say, and that would have been highly desirable.

I want to use my second reading speech, though, to highlight some of the issues that we are likely to spend a bit of time critiquing in the Committee stage, the first of which is the fact that we will keep making references to detention centres, despite the discussion between the member Kelvin Davis and the Deputy Speaker in the first reading where the Deputy Speaker requested that we stop referring to detention centres. I would like to point out to the Deputy Speaker that under clause 17(3) of the bill, there is reference explicitly to immigration facilities, because for the purposes of this bill they count as incarceration. And, as defined by the Minister, individuals who are released from prison and have 6 months outside of prison custody technically should not have elements of this bill apply to them, unless that 6 months includes a turn in a detention facility. And why? It is because you are not, therefore, mimicking someone who is reintegrating into a community, because you are still incarcerated. A detention facility is incarceration. Therefore, it has the dual act of meaning that your liberties are removed from you for longer, and the double whammy of meaning that you will be monitored for longer as a consequence. And yet you have absolutely no control over that period of incarceration. So it is a dual injustice, as it were, in terms of how this bill would then apply to you. So we think it is absolutely right that we are able to talk about incarceration in detention centres as part of this legislation, and what defines, of course, that incarceration, and what people are enduring in those facilities.

The second issue that we will be drawing on in the Committee stage is the appropriate application of the law as it relates to the gathering of offenders’ information. I want to thank other members who have raised instances, in the development of this bill, anywhere in the legislation where we have seen the law go beyond what we would consider to be reasonable. Our bar for what is reasonable is what we have already passed through due and thorough process in the New Zealand Parliament already. So if we are, for instance, putting in place a regime that is more stringent in terms of who is required to give a bodily sample that goes beyond our existing bodily samples legislation, then we would consider that to be unreasonable. If it asks for the police to gather more information than would currently be the case for someone who was being paroled, we would consider that to be unreasonable. And that is where we need to critique as well. The legislation sets out the time for which a person could be detained in order to hand over those samples and hand over that information. Again, we need to check that it mirrors exactly requirements in the current existing New Zealand law, because at least that law has gone through a thorough process.

It is probably right to point out that I am advised that where the New Zealand Bill of Rights Act vet falls down is around bodily samples, and that that is because of existing bodily samples legislation having failed that New Zealand Bill of Rights Act vet when it initially went through. But, again, that is something we will be looking at during our second reading.

The third point that we will be focusing on during the Committee stage is the dual regime that is set out in subpart 2 of the bill, because this is where the bill applies to both sets of categories of individuals—returning offenders and returning prisoners. Our concern is that between those two groups there is the potential for some gaps to emerge, and that those gaps, actually, could emerge at the higher end of offending rather than the lower end. And I want to just delve into that a little bit now. For instance, in the bill under clause 16, it defines who is a returning prisoner: “A returning prisoner is a person who has been determined by the Commissioner to be a returning prisoner in accordance with the criteria set out in section 17.” Clause 17 then goes on to define that “The Commissioner must determine that a person is a returning prisoner” if they have “(a) … been convicted in an overseas jurisdiction of an offence for conduct that constitutes an imprisonable offence in New Zealand; and (b) has, in respect of that conviction, been sentenced to (i) a term of imprisonment of more than 1 year;” or cumulatively more than 1 year, and “(c) is returning or has returned to New Zealand within 6 months after his or her release from custody during or at the end of the sentence.” Then it goes on, for the sake of clarity, to point out that custody does indeed include immigration facilities.

So we have here a default regime. Basically, if you are in prison for an offence of a certain period of time and you come out, you are immediately stuck in a detention centre, and then you are shipped to New Zealand, automatically you will have a monitoring regime applied to you. What if, however, you are released into the community for 6 months and then come out? You could have a life sentence and be in that category. Well, then we are reliant on the regime that applies to returning offenders. That regime requires the Department of Corrections to make an application within a specified period of time to the courts to have your parole conditions as they were in Australia—to apply to have a similar regime to apply to you here in New Zealand.

We are relying on the department to be quite spry under these circumstances, and it could well be that those whom we wish them to be spry about have committed a range of offences that we would consider to be high end. We know from the information that we have seen in the regulatory impact statement that, for instance, we have already had since 2013—15 percent have been offenders with rape or sexual assault offences, and 5 percent with murder and manslaughter. And, yet, how many extended supervision orders has the Department of Corrections applied for when for the last 2 years we have had people in those high categories—how many? Not one. So we will use the Committee stage to delve into whether or not a system that is relying on a department that is struggling will deliver the outcomes that New Zealanders desire.

Drones, Tort and Aviation Vetting

Earlier this month the national inister for Infrastructure and Transport announced that legislation had been introduced legislation into Parliament to 'strengthen security at Australia's major airports to guard against insider threats'.

 “Changes to the Aviation Transport Security Act 2004 will make airside areas of Australia's major airports more secure by paving the way for new and enhanced security screening,” Mr Chester said. 

“Specifically, airports will be able to randomly select people, together with their vehicles and belongings, for screening when they are working inside the secure airside area of an Australian airport to make sure they do not have prohibited weapons in their possession. 

“The changes are the first stage of the Government's plans to strengthen airside security by mitigating the insider threat. In addition to screening of airport workers, the Government will also introduce stronger access controls for airside areas and security awareness training for airport and airline staff.

The Government has also quietly released its Response to the 2014 Eyes in the Sky: Inquiry into drones and the regulation of air safety and privacy report by the Standing Committee on Social Policy and Legal Affairs.

That response states

On 14 July 2014, the Chair of the Standing Committee on Social Policy and Legal Affairs tabled the Committee’s report of its inquiry into the use of RPAS.

The Committee’s report, entitled “Eyes in the sky”, has made six recommendations in relation to safety and privacy aspects of RPAS operations in Australia. 

The Government agrees with Recommendations 1 and 2 of the report and has identified measures by which the recommendations can be put into action. 

The Government does not support Recommendation 3 and specifically the establishment of a separate tort on privacy. 

The Government notes Recommendations 4, 5 and 6 of the Committee’s report and will continue to monitor developments on the use of RPAS as they relate to the Commonwealth’s surveillance device legislative regime. 

The Civil Aviation Safety Authority (CASA) is responsible for implementing Recommendation 1 and the safety related aspects of Recommendation 6, as well as working with the Attorney-General’s Department to implement Recommendation 2. 

The Attorney-General’s Department is responsible for Recommendations 3, 4 and 5, the privacy related aspects of Recommendation 6, and for working with CASA in the implementation of Recommendation 2.

Specifics are

Recommendation 1 - The Committee recommends that the Australian Government, through the Civil Aviation Safety Authority (CASA), broaden future consultation processes it undertakes in relation to remotely piloted aircraft regulations so as to include industry and recreational users from a non-aviation background. Future consultation processes should identify and seek comment from peak bodies in industries where remotely piloted aircraft use is likely to expand such as real estate, photography, media, and agriculture, amongst others. 

Response - The Government agrees with this recommendation. CASA will be consulting with industry and the community on a future modernisation review of the RPAS regulations commencing early next year. This review will take into account work on RPAS by the International Civil Aviation Organization (ICAO), which is responsible for the development of international aviation safety standards and recommended practices, as well as the views of industry and community stakeholders. 

Recommendation 2 - The Committee recommends that the Australian Government, through the Civil Aviation Safety Authority (CASA), include information on Australia’s privacy laws with the safety pamphlet CASA currently distributes to vendors of remotely piloted aircraft. The pamphlet should highlight remotely piloted aircraft users’ responsibility not to monitor, record or disclose individuals’ private activities without their consent and provide links to further information on Australia’s privacy laws. 

Response - The Government agrees with this recommendation. CASA and the Office of the Australian Information Commissioner have collaborated to produce a plain English privacy statement which will be included on all future print runs of the Flying with control? brochure and the Don’t go there brochure which raises awareness of RPAS use near emergency situations. The wording will say “Respect personal privacy. Don’t record or photograph people without their consent – this may breach state laws”. Copies of relevant RPAS brochures are available on the CASA website. 

Recommendation 3 - The Committee recommends that the Australian Government consider introducing legislation by July 2015 which provides protection against privacy-invasive technologies (including remotely piloted aircraft), with particular emphasis on protecting against intrusions on a person’s seclusion or private affairs. The Committee recommends that in considering the type and extent of protection to be afforded, the Government consider giving effect to the Australian Law Reform Commission’s proposal for the creation of a tort of serious invasion of privacy, or include alternate measures to achieve similar outcomes, with respect to invasive technologies including remotely piloted aircraft. 

Response - The Government does not support a separate tort of privacy. Introducing a new cause of action would only add to the regulatory burden on business, which is contrary to the government’s commitment to reducing red tape. The common law already provides avenues for individuals to seek redress for the torts of trespass, nuisance, defamation and breach of confidence. The states and territories also have their own legislation. In circumstances where the Privacy Act applies to regulate some of the activities of an RPA (for example, where an RPA is being operated by an entity covered by the Privacy Act and in doing so collects personal information), an individual who considers their privacy has been breached may complain to the Office of the Australian Information Commissioner. 

Recommendation 4 - The Committee recommends that, at the late-2014 meeting of COAG’s Law, Crime and Community Safety Council, the Australian Government initiate action to simplify Australia’s privacy regime by introducing harmonised Australia-wide surveillance laws that cover the use of listening devices, optical surveillance devices, data surveillance devices, and tracking devices. The unified regime should contain technology neutral definitions of the kinds of surveillance devices, and should not provide fewer protections in any state or territory than presently exist. 

Recommendation 5 - The Committee recommends that the Australian Government consider the measures operating to regulate the use or potential use of RPAs by Commonwealth law enforcement agencies for surveillance purposes in circumstances where that use may give rise to issues regarding a person's seclusion or private affairs. This consideration should involve both assessment of the adequacy of presently existing internal practices and procedures of relevant Commonwealth law enforcement agencies, as well as the adequacy of relevant provisions of the Surveillance Devices Act 2004 (Cth) relating but not limited to warrant provisions. Further, the Committee recommends that the Australian Government initiate action at COAG’s Law, Crime and Community Safety Council to harmonise what may be determined to be an appropriate and approved use of RPAs by law enforcement agencies across jurisdictions. 

Response - The Government notes the Committee’s recommendations. Traditionally, the Commonwealth has had a limited role in the enforcement of state and territory criminal law. The Government considers it appropriate that states and territories continue to modify their own surveillance device laws, if necessary. At a federal level the Government considers that the Commonwealth Surveillance Devices Act 2004 (Cth) strikes an appropriate balance between the protection of privacy and the ability to investigate serious offences. The Act adequately regulates the use of drone borne optical and listening devices by law enforcement. The Act is technologically neutral with the result that surveillance through an RPAS is only lawful if conducted within the same legal parameters as traditional optical surveillance devices. The Government will continue to monitor developments in RPAS usage by the general public and law enforcement agencies to ensure that the Act continues to provide appropriate protections at the Commonwealth level. 

Recommendation 6 -  The Committee recommends that the Australian Government coordinate with the Civil Aviation Safety Authority and the Australian Privacy Commissioner to review the adequacy of the privacy and air safety regimes in relation to remotely piloted aircraft, highlighting any regulatory issues and future areas of action. This review should be publicly released by June 2016. 

Response - The Government notes the Committee’s recommendation. Issues of air safety and privacy are however regulated by separate means, through separate legislation and by separate Government agencies. It is appropriate then that reviews of the adequacy of the air safety and the privacy regimes are conducted by the agency with expertise and responsibility for each area: CASA for air safety and the Attorney-General’s Department, in consultation with the Office of the Australian Information Commissioner, for privacy matters. Each agency will, however, have appropriate regard for the findings of the other’s review in any matters where issues are identified that may affect both air safety and privacy. As indicated in response to Recommendation 1, CASA will be consulting with industry and the community on a future modernisation review of the RPAS regulations commencing early next year. This review will take into account work on RPAS by the International Civil Aviation Organization (ICAO), which is responsible for the development of international aviation safety standards and recommended practices, as well as the views of industry and community stakeholders. CASA will also issue a suite of advisory circulars to provide more guidance to the industry in areas such as RPAS training, licensing, safety management and maintenance over the remainder of the current financial year. The Attorney-General’s Department will continue to liaise with CASA as required, in consultation with the Office of the Australian Information Commissioner, on issues regarding privacy and air safety in relation to RPAS, with a view to addressing particular regulatory issues and any emerging areas of action.