The other DV

Two snippets provoked by a student's comment on parental disciplining of children, ie the traditional defence of reasonable chastisement in relation to assault.

The Tasmanian Commissioner for Children, in the September 2010 Position Statement - Physical Punishment of Children in the Home [PDF], notes that -

In Bresnehan v R (1992) 1 TasR 234 only one of the following chastisements was held to be "unreasonable": whipped for smoking and forced to smoke and eat cigars; horsewhipping on the hand; forced to hold face over open mug of gunpowder while it was ignited; electric cattle-prod; chained in dog shed and belted for not feeding dog; hitting with dog lead, stick whip, hearth brush, shearing belt, piece of wood, fibreglass stake; forced to ingest pepper.

'Parental rights to reasonable chastisement and the European court of human rights' by Ghandhi & James in 3(3) International Journal of Human Rights (1999) 97-119 notes R v Hopley (1860) 2 F. & F. 202. The accused, a schoolmaster, had beaten a young teenage pupil with a thick stick and skipping rope for two and a half hours. At the end, the boy died of exhaustion. Hopley was convicted of manslaughter.

Cockburn CJ directed the jury in Hopley that -

by the law of England, a parent or a schoolmaster (who for the
purpose represents the parent and has the parental authority delegated to him), may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate or excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law and if death ensues it will be manslaughter.

The Tasmanian Law Reform Commission, in a 2003 report on Physical Punishment of Children, commented on arguments about proposals for the abolition of physical punishment in terms of six questions -

1. Is physical punishment morally acceptable?

It is argued that physical punishment is not morally acceptable because first, it denies children the same right to physical integrity that adults enjoy, and secondly, because it violates anti-discrimination laws. And thirdly, it violates international human rights laws. On the other hand, the wide use of physical punishment indicates it is morally acceptable to the majority of Australians. There are also cultural and religious beliefs in a moral duty to use corporal punishment (when necessary) in order to properly raise children.

2. Is physical punishment effective?

It is argued that physical punishment is an ineffective discipline technique because it achieves only short-term compliance (sometimes) and does not help internalise moral values. On the other hand physical punishment is seen by many as effective and in some situations invaluable.

3. Is physical punishment necessary?

Physical punishment is said to be necessary to discipline children effectively in situations where other discipline techniques are less or not effective or are too difficult to apply. The contrary view is that discipline can be firm and effective without the use of physical punishment. This is achieved on a daily basis by teachers, foster parents, child-carers and many parents.

4. Is physical punishment harmful?

Against the use of physical punishment it is argued that its use makes a wide range of negative effects more likely at both an individual and societal level such as physical injuries and abuse, anti-social behaviour, aggressive behaviour and involvement with crime. On the other hand it is argued that there is no compelling evidence to support these assertions, and that common experience refutes them.

5. Would prohibiting physical punishment be an unjustified intrusion into the privacy of the family and parental rights?

It is argued that banning physical punishment would prevent parents and families from managing their own affairs as they see fit and that parents have the right to raise their children in the way that they think is best. On the other hand it is pointed out that the physical punishment of children is already regulated (it must be 'reasonable') and that while parents need to be able to raise and discipline their children the way they think best, they do not have and should not have an absolute legal right to do this.

6. Would prohibiting physical punishment be effective?

It is argued that banning physical punishment would not be effective due to a lack of public support and difficulty in enforcing the law. However, public support may be higher than asserted, particularly if people are assured that trivial smacks will not be prosecuted, and that education rather than enforcement would be the aim of a change in the law.

Imps of Satan

Would we relish (and reward) educational institutions that discriminate against - indeed expel - students who fail to repent because they have red hair, freckles, 'non-Aryan' parents or tend to drop the ball when playing cricket?

I was struck by David Marr's article in today's SMH, noting that NSW law "allows private schools to expel gay students simply for being gay", in actuality for being out and for not "repenting" when put on the spot in DADT environments.

The law is the Anti-Discrimination Act 1977 (NSW), the subject of unsuccessful reform bids such as the Anti-Discrimination Amendment (Equality in Education and Employment) Bill 2005 (NSW). That Bill sought to removes certain exemptions in the 1977 Act, so as to prohibit private educational authorities from discrimination in education on the grounds of sex, transgender status, marital status, disability, homosexuality or age. It also sought to prohibit private educational authorities from discrimination in employment against certain applicants and employees on the ground of sex, transgender status, marital status, disability and homosexuality and to provide that an existing exemption in relation to the provision by religious
bodies of social, charitable or welfare services to the public, or to the provision of primary, secondary or tertiary education by religious bodies. Such bodies enjoy tax advantages and often receive very substantial funding from Commonwealth and state/territory governments.

NSW Attorney-General, John Hatzistergos, perhaps conscious of the coming election, reportedly characterises the statute as necessary "to maintain a sometimes delicate balance between protecting individuals from unlawful discrimination while allowing people to practise their own beliefs". Wrap one's belief in a cope & cassock, invoke the Koran or other sacred text, and the discrimination is, of course, no longer "unlawful".

NSW law exempts private schools from any obligation to enrol or deal fairly with LGBTQI students, with expulsion requiring neither disruption, harassment nor what the SMH dubs "the flaunting of sexuality", as "being homosexual is enough".

Being - or merely being perceived as - LGBTQI can result in children and young people experiencing a very tangible hell at the hands of their peers, teachers and guardians, with last year's third Writing Themselves In report [PDF] on the Sexuality, Health and Well-Being of Same-Sex Attracted Young People noting pervasive vilification and physical violence. That cruelty is implicitly endorsed by institutions that quarantine minors from rights that are recognised elsewhere.

Marr quotes then attorney-general Paul Landa as explaining "The facts of political life require acceptance of the claim of churches to conduct autonomous educational institutions with a special character and faith commitment". We certaintly can't let mere human rights get in the way of the sacredness of the facts of political life and religious dogma.

Marr goes on to quote ACON chief executive Nicolas Parkhill as condemning the law as -

deeply offensive, patently unethical and damaging to our society on multiple levels. Recent research shows that young same-sex-attracted people are up to 14 times more likely to attempt suicide than their heterosexual peers and that 80 per cent of the verbal or physical abuse they experience occurs in schools.

Allowing religious schools to reinforce this negative experience by giving them the right to expel the victims of homophobic attitudes is incomprehensible.

Greens MP David Shoebridge is elsewhere quoted as commenting that there is no place in the 21st century for any school expelling young students because of their sexuality -

It is remarkable that the Labor attorney-general will stand up to defend the right of a private school to sack a teacher for becoming a single mother, but stays silent when young people are being actively discriminated against for being honest and open about their sexual identity.

NSW deserves more from its leaders than silence and fear in the face of the well-connected and well-resourced religious lobby.

It is the job of governments to protect the vulnerable, not bow to the powerful.

Without indulging in religious hatred one can question the cruelty or lack of compassion evident in clerical resistance to human rights within the sphere of education.

Frères humains qui apres nous vivez
N'ayez les cœurs contre nous endurciz,
Car, se pitié de nous povres avez,
Dieu en aura plus tost de vous merci.
Vous nous voyez ci-attachez cinq, six
Quant de la chair, que trop avons nourrie,
Elle est pieça devoree et pourrie,
Et nous les os, devenons cendre et pouldre.
De nostre mal personne ne s'en rie:
Mais priez Dieu que tous nous vueille absouldre!

Dr Lynne Hillier, in asking whether tackling homophobia in schools is "in the too hard basket", acutely commented that -

1. Historically there has been broad institutional backing for homophobic beliefs through the church, psychiatry, psychology and the law. Despite many of the institutions later reneging on those beliefs, they remain pervasive today and are behind homophobic bullying at school and in the community.

2. It is harder for those working with young people to challenge homophobic abuse than other bullying, such as that based on race or gender. This is because teachers and others are fearful of a backlash from parents and the community. They are fearful of losing their jobs or of being accused of encouraging that lifestyle or of being homosexual themselves. Young people often complain that the abuse is ignored.

3. It is more difficult for young people to access help. To get help young people have to disclose their sexuality. This is often too great a risk to take and so they bear the abuse in silence with no support. This is when they are most at risk of self-harm and suicide.

4. The alienation from homophobic bullying is likely to be more absolute. It is enacted systematically against a person on the basis of suspected membership of a group, however, unlike members of other minority groups who often share their minority status with their families and are therefore supported by them, parents of same sex attracted young people are in most cases heterosexual and expect their children to be heterosexual as well.

We might make a small but useful start in freeing some kids from hell by removing anti-discrimination exception and by refusing, as society, to reward homophobic institutions with gifts from the state.

Miracles and white poison

A week after giving a lecture on mental health law ("it was sheer bedlam", complete with snaps of the Bethlehem Hospital for the cognitively divergent) I have been reading Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49, in which the ACCC obtained orders against Darryl Peter Jones. The case is a nice example of health regulation in the 'age of the internet', with the national consumer protection agency using federal law in requiring changes to the site maintained by Jones.

The judgment notes that the Court -

made declarations and orders including injunctions in relation to representations about the prevention and treatment of cancer made by Mr Darryl Jones through The Darryl Jones Health Resolution Centre.

The proceedings were instituted by the Australian Competition and Consumer Commission (ACCC) in relation to claims made on a website at http://www.darryljoneshealth.com.au and in an electronic book titled The Truth About Overcoming Cancer, sold through that website.

[C]ertain representations made by Mr Jones were false, misleading or deceptive under the then sections 52 and 53(c) of the Trade Practices Act 1974 (Cth). (The Trade Practices Act 1974 is now known as the Competition and Consumer Act 2010 and the equivalent provisions are Schedule 2, sections 18 and 29(g)).

The injunctions permanently restrain Mr Jones from making, or being involved in others making, or encouraging others to make, any claim concerning means of treating or preventing cancer or any medical condition unless Mr Jones has first obtained written medical or scientific advice to support the claim.

As background to that statement the Court notes that -

The respondent, Darryl Peter Jones has been a full time, professional personal trainer and body builder for some twenty years. In following that vocation over that period he has owned a fitness centre and a gym at various times. These he describes as having been highly successful. Some thirty years ago, he commenced theological studies in New South Wales graduating in 1984 from the Assemblies of God College at Katoomba with a Diploma of Ministry. Since then he has always maintained involvement in part time and voluntary aspects of Christian churches and fellowships both in New South Wales and in Queensland.

Over time, a combination of Mr Jones' experience in the field of personal training and body building, his particular interest in natural body building, ie the development of the human body to the optimum strength and muscular presentation without the use of steroids or performance enhancing drugs and his theological studies and religious beliefs led more recently to his establishing a business known as the Darryl Jones Health Resolution Centre (the Centre).

Aspects of Mr Jones’ conduct in the course of his carrying on business at the Centre excited the interest of the Australian Competition and Consumer Commission (the Commission). The Commission came to institute proceedings in this Court against Mr Jones alleging contraventions on his part of s 52 and s 53(c) of what was known at the time as the Trade Practices 1974 (Cth) (the Act). On the basis of these alleged contraventions the Commission claims against Mr Jones declaratory, injunctive and ancillary relief.

Jones' book had featured delightful statements such as -

Darryl Jones from the Darryl Jones Health Resolution Centre says the simple secret is a strict regime of diet and exercise which has been proven to bring even the worst cancers under control.

In fact, Darryl helps clients gain success in even terminal cases – cancer patients whose doctors have told them there is nothing more that traditional healthcare medicine can do.

Additionally, he had claimed that -

laetrile (aka amygdalin and 'vitamin' B17) "was effective in the treatment or prevention of cancer; had been proven to bring even the worst cancers under control; and was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs radium therapy, surgery and chemotherapy; and that he had reasonable grounds to make the representation.

The Court, unsurprisingly, was unimpressed with the latest manifestation of a century of claims that apricot pips and the avoidance of sugar will prevent or eliminate cancer.

It was also unpersuaded by the 'religion card', commenting -

Mr Jones did not confine the foundation for his claim to reasonable grounds just to the experience of these clients. Nor did he so confine his case as to the truth of representations not qualified by this expression. In each instance, in accordance with the excerpt from his affidavit which I have quoted, he pointed to faith. He made particular reference to Chapter 15, verse 26 in the Book of Exodus in the Bible. As found in The Bible for Today – Contemporary English Version (The Bible Society in Australia Inc), that verse is in these terms, "Then he [the Lord] said, 'I am the Lord your God and I cure your diseases. If you obey me by doing right and by following my laws and teachings, I won’t punish you with the diseases I sent to the Egyptians.'"

This case is not to be determined by any extensive theological discourse as to what is meant by this verse. The verse does though admit of an interpretation that the Lord may cure a disease by providing an individual with the occasion and inspiration for a scientific breakthrough. What some might call coincidence, a Christian might very well call an Act of God. Perhaps, for example, the serendipitous sequence of events that saw the great 20th century Scottish biologist and pharmacologist, Sir Alexander Fleming, come to receive medical training, pursue a career in research, witness first hand as an Army medical officer in World War One the deaths from sepsis of wounded soldiers, be thereby inspired during and after that war to direct his research to the subject of how such infections might be cured and then observe and test why a laboratory culture of staphylococci accidentally contaminated by fungus showed signs of bacterial destruction, leading to the discovery of penicillin might be so explained. An additional interpretation of part of the verse might also be that one does not “do right” by engaging in conduct that is misleading or deceptive of one’s fellow man or likely to be so, irrespective of whether there is an Act of Parliament which so provides.

However this may be, faith, Christian or otherwise, does not provide a basis by which, objectively, the truth or otherwise of the admitted representations is to be judged any more than, where a statement as to the possession of reasonable grounds forms an element of the representation, it constitutes a fact sufficient to induce in the mind of a reasonable person a sufficient basis for making that representation. Objectively, to return to the example which I have given, the destruction of staphylococci is attributable to penicillin, not faith.

Neither the ACCC nor this post explicitly stated or implied that Jones engaged in fraud. Logan J commented that -

I observed Mr Jones closely in the course of the trial. That observation, together with my reading of the website and the e-book, the administrative undertaking which he gave to the Commission and the conclusions which I have reached concerning the admitted representations persuades me that he is something of a zealot. I do not mean any disrespect by that description, only that he is full of zeal in respect of the admitted representations. I consider that these proceedings have themselves had an educative effect for him in relation to his compliance responsibilities in respect of statutory consumer protection provisions. It is not a want of understanding of the prohibition of misleading or deceptive conduct on his part that is lacking but rather a want of understanding on his part about cancer and its treatment which is evident to me.

The declaratory relief obtained by the ACCC was that Jones had

• engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth) (TPA); and

• represented that his goods or services have uses or benefits they do not have in contravention of section 53(c) of the TPA.

Specifically, in trade or commerce, and in relation to the supply or possible supply or promotion of the supply of goods and services he had made representations that -

• the reduction or elimination of glucose from the diet was effective in the treatment or prevention of cancer, had been proven to bring even the worst cancers under control; and was, together with an exercise program recommended by him, more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;

• taking laetrile was effective in the treatment or prevention of cancer, had been proven to bring even the worst cancers under control, and was (together with an exercise program recommended by Jones) more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy.

As part of that declaratory relief the Court did not find that there were reasonable grounds to make those representations.

It similarly did not find that there was a reliable and current scientific or medical basis to make the representations. Instead

• the reduction or elimination of glucose from the diet was not effective in the treatment of cancer, had not been proven to bring even the worst cancers under control, and was not, together with an exercise program recommended by [Jones], more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;

• the taking of laetrile was not effective in the treatment or prevention of cancer, had not been proven to bring even the worst cancers under control, and was not, together with an exercise program recommended by [Jones], more effective in treating cancer than pharmaceutical drugs, radium therapy, surgery and chemotherapy;

There were no reasonable grounds for making any of the representations and there were no reliable, current scientific or medical bases for any of the representations.

Fervent belief does not mean that one can appropriate scientific or medical authority.

The injunctive relief obtained by the ACCC included that Jones is -

restrained permanently, whether by himself or his servants or agents or otherwise howsoever:

• in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; and

• in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast;

from making any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the Jones first has obtained: from a person then registered with a medical practitioners board to practice medicine in Australia; or from a professor, associate professor, reader, senior lecturer, or lecturer then teaching or researching in medicine at an Australian university; written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe; and at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications and position of the person providing the said advice; and retains a copy of the said advice and provides a copy of the same to the applicant within 7 days of him receiving the certificate.

Jones as respondent is permanently restrained, whether by himself or his servants or agents or otherwise howsoever, from

knowingly being involved with, consenting to or encouraging the making of, by: any person or unincorporated entity: in the course of trade or commerce between Australia and places outside Australia, among the States, within a Territory, between a State and a Territory or between two Territories; or in trade or commerce involving the use of internet, postal, telegraphic or telephonic services or taking place in a radio or television broadcast; or any corporation, in trade or commerce; any representation to the effect that the occurrence or growth of cancer or any medical condition can be prevented or successfully treated by any means whatsoever unless the respondent: first has obtained: from a person then registered with a medical practitioners board to practice medicine in Australia; or from a professor, associate professor, reader, senior lecturer, or lecturer then teaching or researching in medicine at an Australian university; written advice certifying that the proposed treatment is in the opinion of that person supported by reliable scientific evidence or expert medical opinion and is believed to be effective and safe; and at the time of making the representation, prominently discloses details of the said advice, including the name, qualifications and position of the person providing the said advice; and retains a copy of the said advice and provides a copy of the same to the applicant within 7 days of him receiving the certificate.

Credit Referencing

The preceding post noted that reestablishing a credit profile after identity theft may take some time. That is because of the plethora of credit rating and credit providing entities. It is also of poor practice by some of those agencies. Finally, it is also because of the weakness - and arguably the reluctance - of government and industry regulatory bodies in enforcing community expectations regarding good practice. Some concerns were highlighted by the Australian Law Reform Commission in part g [PDF] of its Review of Australian Privacy Law (report 72) and in a range of other studies, some of which have severely criticised industry practice.

Divisions among commercial interests and incomprehension or merely exasperation among government agencies were apparent at yesterday's National Roundtable on Credit Reporting, held at Parliament House in Canberra and foreshadowed recently in this blog.

In opening the event Minister for Privacy Brendan O'Connor announced that "peace had broken out among participants".

Mr O'Connor was shortly thereafter called away to parliamentary proceedings and accordingly missed exchanges that indicated peace is most definitely not at hand.

The event - I was delightfully described in the list of participants as an "academic" (much to the amusement of a colleague who suggested that "bear" would be more appropriate) - involved discussion regarding "development of a proposed new Code of Conduct for the Credit Reporting industry".

The Minister's media release accordingly announced that -

Consumer and privacy advocates and representatives of the financial sector will attend the meeting at Parliament House in Canberra today.

Under proposed changes to the Privacy Act, credit reporting agencies and credit providers will be required to protect consumers' private information, including details they use to assess a customers' eligibility for banking products.

"A new binding Code of Conduct will be an integral part of the new credit reporting regime, helping to provide greater protection for consumers and clearer guidance for business," Mr O'Connor said.

The Code will include more specific rules on access to clients' personal information, data accuracy and complaint handling than is possible to include in legislation.

"Today's Roundtable will provide a forum for stakeholders to discuss the development of the industry-led Code of Conduct and raise any matters arising from the draft legislation."

The Roundtable follows the referral of draft comprehensive credit reporting provisions to the Senate Finance & Public Administration Committee for review. The draft legislation implements part of the Government's response to the Australian Law Reform Commission report For Your Information: Australian Privacy Law and Practice.

"This is a valuable opportunity for interested parties to express their views on credit reporting and make progress toward an industry-led Credit Reporting Code of Conduct," he said.

The reality was somewhat more sombre, and an ursine observer might well be forgiven for commenting that meaningful consultation involves more than gathering some actors within a tent and watching them spit at each other.

Telecommunications sector representatives vigorously disavowed activity by the Australasian Retail Credit Association, emphasising that they have a code that is in place and that is founded on telecommunications legislation. The retailers outlined their work towards a code, criticised by some industry sectors as having occurred on an insufficiently consultative basis. The credit reference industry, notably Veda Advantage and Dun & Bradstreet, presented its positions. The banking and insurance sectors commented on code development possibilities and initiatives.

All expressed concern, no doubt heartfelt, for consumers, including people experiencing difficulty because of the WA bushfires and floods in Victoria and Queensland. A handful of consumer advocates, outnumbered by the corporate suits, managed to offer some incisive criticisms regarding practice and remind the government representatives of the significance of consumers. Some industry sectors, such as the utilities, were no-shows.

The outcome of the event is unclear. Pending the Senate Committee consideration of the legislation it is unclear whether the telcos will be looked after through a carving out of their code from a broader national consumer credit reporting code or whether divergent and intractable positions by different industry sectors will be addressed through a single code that accommodates discrete sectoral codes in an 'agreement to disagree'. A more effective regime - not least because it would be intelligible by all consumers - would be founded on function (in essence data collection, processing, access and correction) rather than on sector. The desirability of numerous sectoral credit referencing systems and associated credit referencing regulatory regimes is unclear.

A reforming government might stand back from inter-industry squabbles, question the sacredness of a co-regulatory regime that enshrines official incapacity and drive a coherent national consumer credit referencing scheme that serves the national interest rather than preserves the dominance of a handful of dominant actors that appear to be reluctant to update their operations to ensure timely responses in situations of dispute and include flags that clearly identify 'default' information that is contested or attributed to genuine hardship.

Identity Crime

The Minister for Home Affairs & Justice, Brendan O'Connor, has noted the passage of the Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 (Cth), legislation to "better tackle identity theft and help victims to re-establish their lives".

O'Connor commented that -

Identity theft is a terrible crime that is not only frustrating and time-consuming to remedy, but can lead to serious damage to a person's credit history and reputation for many years

Unfortunately, no-one is immune to identity crime.

For example, in recent weeks identity thieves have posed as leading staff of some of our major law enforcement agencies, such as the Australian Crime Commission and Customs & Border Protection.

A person's identity can be used falsely to obtain citizenship, Centrelink payments, medical services, gain professional qualifications or for criminal purposes, among other things.

The new legislation creates three new offences -

Up to five years jail for making, supplying or using identification information with the intention of committing a Commonwealth indictable offence

Up to three years jail for possessing identification information with the intention of committing identity crime

Up to three years jail for possessing equipment to make identification documentation with the intention of committing identity crime.

Given the resonance of 'identity theft' in popular culture O'Connor went on to -

thank my fellow parliamentarians for their recognition of the distressing nature of this invasive offence and their willingness to join the Gillard Government in taking action.

He indicated that the legislative changes are technology-neutral and designed to take account of evolving types of identity crime such as phishing and the use of malicious software.

Coupled with existing State and Federal offences for theft, forgery, fraud and credit card skimming these new penalties provide a serious deterrent to would-be identity thieves.

The new laws also help to address the needs of the victims of identity crime to re-establish their identities more easily.

Victims of identity crime can now apply to a Magistrate for a certificate stating that their identity information has been misused

This will help victims to re-establish their credit rating and help exonerate them of offences committed under their name.

Reestablishment of the credit rating may take some time.

Public judgement on sentencing

The Australian Institute of Criminology has released a brief report on use of jurors in real trials to gauge public opinion about sentences and sentencing.

'Public judgement on sentencing: Final results from the Tasmanian Jury Sentencing Study' (Trends & issues in crime and criminal justice no.407) [PDF] by Kate Warner, Julia Davis, Maggie Walter, Rebecca Bradfield & Rachel Vermey indicates that over 50% of jurors surveyed from 138 trials suggested a more lenient sentence than that imposed by the trial judge. When informed of the actual sentence, in the second stage of a two-stage survey process, 90% said that the judge’s sentence was very appropriate or fairly appropriate.

One conclusion is that "portrayals of a punitive public are misleading and calls for harsher punishment largely uninformed".

The authors comment that implications from the research include -

The myth of the punitive public

The fact that 52% of jurors chose a more lenient sentence than the judge and only 44% were more severe than the judge shows that informed members of the public are not as punitive as many representative surveys have suggested. This finding mirrors previous vignette studies that also reported that when views of members of the public on a specific case are compared with those of judges, the judges’ sentences tend to be as severe or more severe than those of the public ... When informed of the sentence at Stage 2, 90% of jurors thought the sentence was very or fairly appropriate and only around a third thought that the judge should have imposed a more severe sentence.

Leniency, punitivity and malleability

Those who had selected a more lenient sentence than the judge at Stage 1 were significantly more likely to agree with the judge’s sentence at Stage 2 and more likely to say it was very appropriate than those who had selected a more severe sentence than the judge at Stage 1. In other words, jurors who were more punitive were less tolerant of the judge’s sentence and less malleable in their views than the more lenient jurors, as measured by their Stage 1 sentence choice.

Public opinion is multidimensional

Public opinion is not one dimensional; rather, it is multidimensional and contingent on particular circumstances. The jury survey methodology, which covers all trials over a lengthy period and therefore picks up a realistic assortment of sex, violence, drug and property cases, is better able to reveal broad differences in attitudes to particular offence types than the standard vignette methodology. The results showed a striking disparity in attitudes to different types of offences. For property offences, jurors were more than twice as likely to be less severe than the judge than more severe. For sex, violence and drug offences, the split between less and more severe was much more even. This difference in offence types was borne out in Stage 2. When asked how appropriate the judge’s sentence was, jurors were most satisfied with property offence sentences (57% very appropriate) and least satisfied with drug and sex offence sentences (around 35% very appropriate). Comparing the judge’s sentence with the juror’s preferred sentence at Stage 2 showed that jurors were least likely to have preferred a more severe sentence for property offences (28%) and most likely to have preferred a more severe sentence for sex and drug offences (46%).

The perception gap

There was a distinct contrast between jurors’ responses to the stimulus of a particular trial and responses to an abstract question about sentencing levels. While the view that sentencing levels are too lenient moderated somewhat after jurors had received more information in Stage 2, a clear dichotomy remained between their responses to the sentence imposed on the offender in the trial they deliberated on and their responses to the question about general sentencing levels in sex, violence and property offences, but not in drug cases. This dichotomy persisted when the general views of respondents were separated so that general attitudes for offence types were limited to jurors who had deliberated in a case of that offence type. The analysis showed that the perception gap remained in the case of sex offences, diminished but remained in violent offence cases and all but disappeared in property cases.

This jury study ... is the first to look at the impact of increased information on this dichotomy and the first to find that extra information and increased exposure to a real trial and a real sentence on an individual offender has a differential impact depending on offence type.

Attitudes towards judges

Just as 90 percent of jurors thought that the sentence imposed by the judge was appropriate, a substantial majority of 83 percent also thought that judges were in touch with public opinion. In contrast with representative surveys that have found that only 18–20 percent of respondents thought that judges were in touch with the public, jurors in this study who all had first-hand contact with judges were much less likely to say that judges were out of touch.

Impact of information

While jurors were shown to be as poorly informed about crime and sentencing trends as other members of the public, the results suggest that modest improvements in knowledge levels can be gained by providing better information directly to those who come into contact with the criminal justice system. Participants thought that other jurors would be interested in receiving such information and the results suggest that providing jurors in all trials with a crime and sentencing booklet and the reasons for the judge’s sentence has the potential to change attitudes. Moreover, because a majority of jurors discuss the sentencing outcome of their case with others, jurors also have the potential to act as conduits of information to the rest of the community. However, given that jury service touches only a minority in the community and that the provision of more information does not always lead to attitude changes, it seems that it is not a complete solution to the problem of misperceptions in the wider community. For some people, the belief that sentences are too lenient is difficult to shift.

ETA II

The Government has introduced the Electronic Transactions Amendment Bill 2011 (Cth) into the House of Representatives.

It is envisaged that the statute will update the Electronic Transactions Act 1999 (Cth) to "reflect internationally recognised standards on electronic commerce and bring Australia's electronic transactions legislation into the 21st century".

The Bill is based on a Model Electronic Transactions Amendment Bill developed by the Standing Committee of Attorneys-General last year.

In introducing the Bill the Attorney-General, Mr McClelland, commented that -

These reforms will provide increased legal certainty in trade by electronic means, and will encourage the continual growth of electronic contracting both domestically and internationally.

The amendments will align Australia's uniform Electronic Transactions Acts with the United Nations Convention on the Use of Electronic Communications in International Contracts 2005.

The Electronic Transactions Act 1999 (Cth) implemented the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce 1996 (aka the Model Law). The UNCITRAL Model Law provides internationally accepted rules to remove legal obstacles and provide a more secure environment for electronic commerce. The Australian States and Territories passed Electronic Transactions Acts consistent with the Commonwealth Act to achieve national uniformity.

The 1999 Act - often dubbed the ETA - implements three key aspects of the UNCITRAL Model Law: the legal validity of electronic transactions, non-discriminatory treatment of different electronic methods, and party autonomy to agree to alternative terms and conditions.

In essence, the Act aims to remove impediments to use of electronic communications in transactions with government, business or consumers. It provides that transactions taking place under a law of the jurisdiction will not be invalid simply because they are completed electronically. It allows business and government to meet in electronic form requirements such as providing a handwritten signature, giving information in writing, producing a document in material form, and recording or retaining information.(The Electronic Transactions Regulations 2000 exclude certain documents and transactions from the application of the Act.)

The new Bill was developed after consideration of the proposal to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts 2005. That Convention was adopted by the UN General Assembly in November 2005, building on the Model Law by "offering practical solutions for issues arising out of the use of electronic communications in the formation or performance of contracts between parties located in different countries". The Convention fills in gaps identified since the Model Law was developed ("a greater knowledge of the internet and the use of electronic communications"), enhancing certainty rather than superseding national contract law. The Convention does not require significant changes to Australia's electronic transactions regime.

The Convention provides default rules for determining the time of dispatch and receipt of an electronic communication in connection with formation and performance of a contract. The Bill applies those default rules in determining the time of dispatch and receipt in relation to all electronic communications, including recognition of automated message systems, clarification of an invitation to treat, rules to determine the location of the parties, updating electronic signature provisions and default rules for time and place of dispatch and receipt. The amendments do not represent major changes to settled contract law. The Bill reflects statutory protection in Australia for consumers through for example the Competition and Consumer Act 2010 (Cth), going beyond the weaker protection in the Convention regarding personal, family and household contracts.

The Model Law and Convention feature a formula to determine the time of dispatch of an electronic communication which involves the notion of a communication leaving the control of the originator’s information system. The Model Law is directed at the time an electronic communication enters the information system of an addressee. In contrast,the Convention is directed at the time the communication leaves the information system of the originator. In practice there will often be little difference but network instability and spamming means that email may be lost or delayed by security measures such as filters.

The Bill seeks to amend the ETA, adopting the Convention rule that dispatch occurs at the time an electronic communication leaves the information system of the originator (broadly consistent with the traditional 'postal acceptance rule' under common law, with acceptance of a contract offer effective immediately after a properly pre-paid and addressed letter is posted rather than when it is received). It provides that where an electronic communication does not leave the information system of the originator, the time of dispatch is deemed to be when the communication is received by the addressee. (That provision anticipates exchange of electronic communications within the same information system.) It does not distinguish between an information system that is, or is not, under the control of the user such as where the parties are using web-mail or Software as a Service (SAAS) models. The proposed changes to the ETA confirm that the default rules for determining the time of dispatch are not affected if the information system supporting an electronic address is in a different location from where the electronic communication is sent, which could be in a different location or jurisdiction.

Overreaching

Someone in the US Air Force seems to have an attack of the Atkinsons, with egregious overreaching regarding Wikileaks.

The excellent FAS Project on Government Secrecy (Vol 2011, Issue No. 13) of 7 February notes problematical claims that accessing Wikileaks violates the Espionage Act.

Many government agencies have instructed their employees not to download classified materials from the WikiLeaks web site onto unclassified computer systems. The government's position is that although the material is in the public domain, its classification status is unaffected. Therefore, to preserve the integrity of unclassified systems, the leaked classified information should not be accessed on such systems. If it is accessed, it should be deleted.

But on February 3, Air Force Materiel Command (AFMC) at Wright-Patterson Air Force Base issued startling new guidance stating that the leaked documents are protected by the Espionage Act and that accessing them under any circumstances is against the law, not simply a violation of government computer security policy.

"According to AFMC's legal office, Air Force members -- military or civilian -- may not legally access WikiLeaks at home on their personal, non-governmental computers, either. To do so would not only violate the SECAF [Secretary of the Air Force] guidance on this issue,... it would also subject the violator to prosecution for violation of espionage under the Espionage Act," the AFMC legal office said.

Then, in an astounding interpretive leap, the AFMC went on to say that similar prohibitions apply to the relatives of Air Force employees.

"If a family member of an Air Force employee accesses WikiLeaks on a home computer, the family member may be subject to prosecution for espionage under U.S. Code Title 18 Section 793."

As Steve Aftergood of the FAS notes, that is a "breathtaking claim that goes far beyond any previous reading of the espionage statutes" ... and arguably an absurdist claim. He comments that -

If taken seriously for a moment, the AFMC guidance raises a host of follow-on questions. What if a family member accessed WikiLeaks on a computer outside the home? What if a non-family member accessed WikiLeaks on the home computer? What if one learns that a neighbor has accessed WikiLeaks in the neighbor's home? Is the Air Force employee obliged to intervene or to report the violation to authorities? And how could any of this possibly be constitutional?

Since the AFMC guidance is not based in existing case law or past practice, these questions have no immediate answers.

Last December, a Department of Homeland Security official complained to Secrecy News that government policy on WikiLeaks produced the incongruous result that "my grandmother would be allowed to access the cables but not me." But if the new Air Force guidance can be believed, this is incorrect because the official's grandmother would be subject to prosecution under the Espionage Act.

In reality, there does not seem to be even a remote possibility that anyone's grandmother would be prosecuted in this way.

Instead, ironically enough, the real significance of the new AFMC guidance could lie in its potential use as evidence for the defense in one of the pending leak prosecutions under the Espionage Act. Defendants might argue that if the Espionage Act can be seriously construed by Air Force legal professionals to render a sizable fraction of the American public culpable of espionage, then the Act truly is impermissibly broad, vague and unconstitutional

The prospect of criminalising all US readers of the New York Times and Guardian is, of course, delightful. Mr Assange must be delighted, particularly as he faces increasing criticism of his proprietorial stance on information provided by Wikileaks to selected newspapers.

US Air Force Headquarters subsequently disclaimed the AFMC guidance, with a representative commenting -

"Air Force Materiel Command (AFMC) recently published an internal news story that discussed the implications of downloading presumed classified information from WikiLeaks. The release was not previously coordinated with Headquarters Air Force and has been removed from the AFMC website. The Air Force has provided guidance to military members and employees to avoid downloading what could be classified information into Air Force unclassified networks and reminded them that publication of information does not itself constitute declassification of such information. The Air Force guidance did not address family members who are not Air Force members or employees. The Air Force defers to the Department of Justice in all non-military matters related to WikiLeaks.

Nicely illustrative of attitudes in the field.

St Martin

I have been reminded of Thomas Bernhard's rant about Heidegger in Old Masters (1985) -

Heidegger ... that ridiculous Nazi philistine in plus-fours. Just as Stifter has totally and in the most shameless manner kitschified great literature, so Heidegger, the Black Forest philosopher Heidegger, has kitschified philosophy, Heidegger and Stifter, each one for himself and in his own way, have hopelessly kitschified philosophy and literature. Heidegger, after whom the war-time and post-war generations have been chasing, showering him with revolting and stupid doctoral theses even in his lifetime. I always visualize him sitting on his wooden bench outside his Black Forest house, alongside his wife who, with her perverse knitting enthusiasm, ceaselessly knits winter socks for him from the wool she has shorn from their own Heidegger sheep. I cannot visualize Heidegger other than sitting on the bench outside his Black Forest house, alongside his wife, who all her life totally dominated him and who knitted all his socks and crocheted all his caps and baked all his bread and wove all his bedlinen and who even cobbled up his sandals for him. Heidegger was a kitschy brain, Reger said, just as Stifter, but actually a lot more ridiculous than Stifter who in fact was a tragic figure unlike Heidegger, who was always merely comical, just as petit-bourgeois as Stifter, just as disastrously megalomaniac, a feeble thinker from the Alpine foothills, as I believe, and just about right for the German philosophical hot-pot. For decades they ravenously spooned up that man Heidegger, more than anybody else, and overloaded their stomachs with his stuff. Heidegger had a common face, not a spiritual one, Reger said, he was through and through an unspiritual person, devoid of all fantasy, devoid of all sensibility, a genuine German philosophical ruminant, a ceaselessly gravid German philosophical cow, Reger said, which grazed upon German philosophy and thereupon for decades let its smart little cow-pats drop on it ...

Heidegger is the petit-bourgeois of German philosophy, the man who has placed on German philosophy his kitschy nightcaps, that kitschy black night-cap which Heidegger always wore, on all occasions. Heidegger is the carpet-slipper and night-cap philosopher of the Germans, nothing else. Heidegger has always been repulsive to me, not only the night-cap on his head and his homespun winter long-johns above the stove which he himself had lit at Todtnauberg, not only his Black Forest walking stick which he himself had whittled, in fact his entire hand-whittled Black Forest philosophy, everything about that tragicomical man has always been repulsive to me, has always profoundly repulsed me whenever I even thought of it; I only had to know a single line of Heidegger to feel repulsed, let alone when reading Heidegger, Reger said; I have always thought of Heidegger as a charlatan who merely utilized everything around him and who, during that utilization, sunned himself on his bench at Todtnauberg ... His nothing without reason is the most ludicrous thing ever, Reger said. But the Germans are impressed by posturing, Reger said, the Germans have an interest in posturing, that is one of their most striking characteristics. And as for the Austrians, they are a lot worse still in all these respects. I have seen a series of photographs which a supremely talented woman photographer made of Heidegger, who in all of them looked like a retired bloated staff officer, Reger said; in these photographs Heidegger is just climbing out of bed, or Heidegger is climbing into bed, or Heidegger is sleeping, or waking up, putting on his underpants, pulling on his socks, taking a nip of grapejuice, stepping out of his log cabin and looking towards the horizon, whittling away at his stick, putting on his cap, taking off his cap, holding his cap in his hands, opening out his legs, raising his head, lowering his head, putting his right hand in his wife’s left hand while his wife is putting her left hand into his right hand, walking in front of his house, walking at the back of his house, walking towards his house, walking away from his house, reading, eating, spooning his soup, cutting a slice of bread (baked by himself), opening a book (written by himself), closing a book (written by himself), bending down, straightening up, and so on, Reger said. Enough to make you throw up.

Cant and carbs

I confess to disquiet regarding the Dinner With Julian site, identified with the 'dinnerforfreespeech' URL and promoting "A fund raising dinner for Wikileaks and Julian Assange" with "no secret ingredients. No additives".

The site indicates that -

On Wednesday the 9th of February 2011 from 6.30pm GMT people from all around the world will commence dining with their friends in a unified effort to raise awareness of the importance of freedom of speech.

Visitors to the site are exhorted to -

Pledge and receive a dinner speech By Julian Assange

By pledging a donation on this day, no matter how large or small, you can help support Julian's defence fund, and/or contribute to WikiLeaks. WikiLeaks empowers sources to leak information (that would otherwise be silenced) to journalists.

They are of course not exhorted to contribute to a Bradley Manning Defence Fund.

More importantly - and much more sadly - they are not exhorted to donate to Human Rights Watch or a plethora of other organisations that have made a substantive contribution to free speech and other human rights, organisations that don't confuse the front man with those rights.

The site helpfully suggests -

Make sure you get info from your guests on any special dietary requirements. Try to balance your menu…e.g. not too much heavy carbs or cream in every course! Food that is easy to cook and serve will ensure that you are relaxed for your guests and that everyone will have a good time leaving you with plenty of time to talk.

Quite so - watch out for the carbs and the cant, including cant about free speech and the persecution of St Julian. I am bemused by the site's claim of "no secret ingredients. No additives". Wikileaks, as I note in an article out this month, hasn't been transparent. Its finances are opaque. Its processes for selecting information for release are unclear. It is proudly unaccountable to anyone other than Mr Assange, a person who arguably considers that he is above the law of a liberal democratic state (ie Sweden) when that suits him.

I would be more receptive to the site's suggestion -

Preview Julian's speech before your guests arrive if you like. The speech will be available at the on this page. You can share this with your guests when everyone is seated for dinner. Help your guests join in with the interactive part of this dinner by providing a laptop at the table and allow guests to text, email and tweet between mouthfuls!

if that speech was free (rather than tied to a donation), if there was a recognition of alternative views and if there was encouragement for dinner guests to engage with civil society organisations such as Amnesty International or Human Rights Watch. Clickocracy - in which engagement is no more rigorous than a tweet to fellow true-believers and provision of a credit card number - is antithetical to free speech and to broader development of human rights in Australia and overseas.

I suggest that people eschew donations to the Julian Defence Fund and instead send money to more worthy causes ... women who are facing lapidation because of alleged proximity to a man, people facing a death sentence or long-term imprisonment for heresy, people in serious trouble because they've upset the kleptocrats in Beijing or Moscow, people in Uganda and similar regimes under threat of death because of their sexual affinity, people in Burma who disagree with the junta, people in Iran and Iraq and Egypt who are members of religious minorities ...

The Independent meanwhile reports that Assange is threatening to sue The Guardian for defamation after claims in a book published by the newspaper about its collaboration with him. He -

is believed to be upset at a claim that he initially refused to remove the names of informants mentioned in Afghan war documents, allegedly saying they would "deserve it" if they were killed as a result of the leaks.

No nice dinners for them, apparently, nor adulation by the online crowd.

The Independent account continues -

Last week, the WikiLeaks Twitter account, which is understood to be written by Mr Assange, posted a message which read: "The Guardian book serialisation contains malicious libels. We will be taking action."

Guardian News & Media, the publisher of The Guardian, said it had not received any official notification of action against it by Mr Assange. A spokeswoman added: "The irony of an organisation dedicated to the free and open flow of information threatening to sue a newspaper will be lost on no one."

David Green in the New Statesman was more biting, commenting that -

The wording of the Tweet is worth considering carefully:

The Guardian book serialization contains malicious libels. We will be taking action.

First, the use of "we" suggests that the (presumably legal) "action" is threatened by WikiLeaks as an entity, rather than by any particular individual such as its founder Julian Assange. This suggestion is supported by the fact it was sent on the official Wikileaks Twitter feed. If this is the case, then WikiLeaks may be following the unhappy example of the British Chiropractic Association (BCA) and other organizations in making libel threats in respect of unwelcome scrutiny and comment. And, as with the BCA, such a course of action can quickly be seen as illiberal and misconceived.

Second, the alleged libels are not just your normal libels but "malicious" libels. This may be careless verbiage, but presumably this tweet was checked by a legal adviser before publication. If the invocation of "malice" was deliberate, this would be a serious (indeed defamatory) accusation against the Guardian: not only is the serialization defaming Wikileaks, it is doing so with the wrongful motive of doing damage to WikiLeaks. However, WikiLeaks has presented no evidence of such malice.

Furthermore, WikiLeaks has not even specified the alleged libels. It has instead made a bare and vague threat, the very sort of corporate attempt to deter public scrutiny which has led many to support the libel reform campaign.

But, as the founder of WikiLeaks himself recently signed the Libel Reform petition, there is the question as to whether there is a lack of consistency with this threat to bring a libel claim against the Guardian.

In any event, the use of a libel threat makes it clear that although WikiLeaks promotes transparency and openness for others, it does not really enjoy being scrutinized itself.

This basic lack of intellectual and legal consistency can be seen elsewhere. For example, it is reported that Assange believes WikiLeaks has some form of legal ownership in the confidential and secret information which it proposes to publish. This is an astonishing and legally incorrect view, especially when a great deal of that information was provided in breach of civil and criminal law. Assange even threatened to sue the Guardian on this remarkable basis.

Meanwhile former Assange associate Daniel Domscheit-Berg has reportedly claimed that Assange played mindgames with Domscheit-Berg's cat -

Julian was constantly battling for dominance, even with my tomcat Herr Schmitt.

Ever since Julian lived with me in Wiesbaden he (the cat) has suffered from psychosis. Julian would constantly attack the animal. He would spread out his fingers like a fork and grab the cat's throat. ...

It must have been a nightmare for the tomcat.

Herr Schmitt supposedly sometimes managed to "dispatch Julian with a quick swipe of the paw". Nothing like the cat's eye view of history.

Capacity

In D Borough Council v AB (Rev 1) [2011] EWHC 101 (COP) a UK High Court judge acting as the Court of Protection under the Mental Capacity Act 2005 has banned a man with a "moderate learning disability" (IQ of 48) from having sex, with an order making him subject to "close supervision" by the borough council. Mostyn J commented that the case was "legally, intellectually and morally" complex, with an expectation that the court must "tread especially carefully" when the state tries to curtail what is "one of the most basic human functions".

41 year-old 'Alan', described as having a "vigorous sex drive", had been in a relationship with a man who shared the same accommodation. (It is unclear whether the man was employed as a carer, was exploitative and had a learning disability.) Alan told officials that "it would make me feel happy" for that relationship - which appears to have inolved non-coerced activity - to continue. In 2009 the council sought and gained a declaration that Alan lacked capacity to consent. The council also gained an order authorising restriction of contact between Alan and the man (and between Alan and another person) so as to prevent further relations, on the basis that Alan did not understand what he was doing.

The judge has now endorsed the interim declaration and order, agreeing that Alan should not be allowed to become intimate with anyone, on the grounds that he lacked the mental capacity to understand the health risks associated with his actions. (Alan for example appears to explained that babies were found under bushes after delivery by storks and that coitus could give you measles. So much for Dorothy Parker's dictum that "a little coitus | never hoitus".) The order does not restrict activity in the absence of another person.

Mostyn J noted with approval the Australian judgment in R v Morgan [1970] VR 337 and three UK cases - Re E (an Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] Fam 326, [2005] 1 FLR 965, X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968 and Local Authority X v MM and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 - albeit with the comment that "the law is in a state of confusion".

He emphasised that the court cannot prevent people from merely making "unwise" decisions; instead a simple test can be used to see if the person is capable of consenting based on the act itself rather than the proposed partner. That test has three elements: an understanding and awareness of the "mechanics of the act", a recognition "that there are health risks involved", and awareness that activity involving a man and a woman may lead to pregnancy. Alan failed the second and third elements, thus lacking the requisite capacity.

The judgment does not definitively condemn Alan to the pursuit that so threatened Dr Samuel-Auguste Tissot (1728–1797), William Acton (1813–1875),  John Harvey Kellogg (1852-1943) and local guru William James Chidley (1860-1916).

Mostyn J noted that a psychiatrist involved in the case tried to prevent Alan receiving sex education, on the basis that it would leave him "confused". However, the council was ordered to provide Alan with sex education "in the hope that he thereby gains that capacity".

There is no indication that his former companion (or carer) has been charged with an offence.

Profiling, privacy and breaches

It appears from media reports that the UK Vetting & Barring Scheme (VBS), established in 2009 and administered under the Safeguarding Vulnerable Groups Act 2006 by the Independent Safeguarding Authority (ISA) (a specialised equivalent of Australia's CrimTrac), is to be wound back.

The scheme involves centralised vetting of people who work with minors (and vulnerable adults) and who come into contact with children once a month or more. Such people include volunteers who coach sports teams or who visit schools for reading aloud. The scheme features criminal record checks covering a potential nine million adults.

Following a review led by Sunita Mason, the national government's Independent Adviser for Criminality Information Management, those criminal record checks will be notionally restricted to people who have "intensive contact" with the minors, around half the existing number of people meant to be vetted. As importantly, the emphasis will be shifted to employers ensuring that "the right staff" are screened. The results of the criminal record checks are to be sent to individuals before the data is provided to potential employers, allowing affected people to challenge any inaccuracies.

The current scheme attracted criticism from incoming Home Secretary Theresa May as "draconian" - an echo of the tag used in damning the National Identity Card scheme - and claims that over 12,000 innocent people had been incorrectly labelled as thieves, violent criminals and paedophiles. There appears to have been some hyperbole in reports that local councils banned parents from playgrounds on the basis that only vetted "play rangers" were acceptable in those places.

The Independent Adviser previously undertook an Independent Review of Policy on Retaining and Disclosing Records held on the Police National Computer (PNC). That review was to include recommendation of proposals

that will deliver a clear, principled approach that is fair and proportionate and balances the needs of the individual and protecting the public.

'Records' in the review are defined as records of convictions and of any other penalties (such as cautions, warnings, reprimands and penalty notices for disorder) which are or may be recorded on the PNC.

It was expected that the Adviser would consider -

• whether records should be subject to deletion and what criteria should be applied to that process;

• whether there should be arrangements for limiting access to records and what criteria should be applied to that process;

• what information regarding deletion/limitation of access should be provided to the subjects of records by the police and at what stages;

• how any suggested arrangements might be applied and monitored including, where possible, an indication of any additional cost.

• whether records should be subject to deletion and what criteria should be applied to that process;

• whether there should be arrangements for limiting access to records and what criteria should be applied to that process

• the relationship between retention arrangements and national systems supporting employment vetting, especially the CRB process (including the provisions contained in Part V of the Police Act 1997) and the Vetting & Barring Scheme;

• the arrangements for the retention of such records in other jurisdictions within the UK and in those overseas countries she thinks it helpful to consider;

• the arrangements for retaining DNA and other biometric data such as fingerprints, together with the research and evidence base supporting the current development of new proposals in this area;

• the need to strike a proportionate balance between public protection and personal privacy;

• the impact of retention arrangements on the roles and responsibilities of other criminal justice agencies such as the courts and the Crown Prosecution Service.

Forecasts that the VBS will be restricted on a "common sense" basis coincide with reports that the Education Bill to be debated in the Commons next week will allow English schools to search pupils for mobile phones and to delete data from those devices without consent in combatting cyber-bullying. Schools are currently able to confiscate mobiles but are not legally allowed to search for them without pupil consent.

The Bill, if passed, will authorise schools to search for alcohol, drugs, weapons, pornography, stolen goods and other banned items if they -

reasonably suspect [the item] has been or is likely to be, used to commit an offence, or to cause personal injury to, or damage to the property of any person.

In Australia the NSW Privacy Commissioner is reported to be investigating a long term data breach at the University of Sydney. It has been claimed that records of thousands of current and past students have been readily accessible online, with the University supposedly being told about illicit access in February 2007 but failed to secure the information. The data supposedly include a student's full name, residential address, email address, the courses and how much the course cost.

In the time-honoured tradition the Vice-chancellor is reported as stating that he was "appalled to be notified that some records could be accessed in this manner", the breach was an "anomaly" and the University would of course act immediately. The Commissioner is reported as indicating that the University appeared to have breached s12(c) of the Privacy and Personal Information Protection Act 1998 (NSW) and that he would investigate the matter if it was formally reported to him.

The Vice-Chancellor subsequently emailed students, stating that -

I am sorry to confirm that the story in this morning's Sydney Morning Herald is correct in identifying a security flaw in our student records system which would allow a computer-literate person to access some private information from student records using a student ID, and without using a login or password. This flaw was immediately identified and rectified. It is important to note that such information could only be viewed and could not in that way have been changed.

It is also true, as reported in the Herald, that the University was advised of such a flaw in our security in 2007. At that time the matter was swiftly rectified as it has been today. Regrettably some time later as a result of a software update, the security patch was inadvertently removed without anyone becoming aware of its function in protecting the security of student records.

This is, of course, a most serious lapse in the standards which we should be able to expect of our ICT services, for which I can only apologise. I am somewhat relieved to note that since 2007 we have substantially upgraded our ICT processes generally and specifically around the implementation and “penetration” testing of new or updated software.

There is no indication of whether the students are somewhat unimpressed.

Miaow

Having written a LexisNexis National Constitutional Law Moot question based on bad puns and the legality of mephedrone possession I was interested to see the brief report by Bruno Raimondo & Allison Matthews of the National Drug & Alcohol Research Centre on Mephedrone use among regular ecstasy consumers in Australia [PDF].

The authors find that use of mephedrone (aka Meow Meow, M-Cat, plant food and 4-MMC) has increased, particularly in Australia and Europe. 'Miaow' is a synthetic stimulant that is chemically similar to the cathinone found in khat (Catha edulis). It purportedly has stimulant and hallucinogenic/euphoriant properties, being likened to cocaine, MDMA and amphetamines.

A driver of increased mephedrone use has been its legal status -

In the recent past, mephedrone (and other synthetic cathinones) have not been controlled substances in many countries and have been freely available for purchase as 'research chemicals' or 'plant food' either online or in shops which sell 'legal highs'. However, given the recent increase in the use of mephedrone, many countries have recently classified the drug and its analogues as illegal. For example, mephedrone was classified as a controlled drug in the UK in April, 2010. In Australia it is a border controlled drug, due to its chemical similarity to methcathinone which is scheduled in the Criminal Code Act 1995, but possession laws may differ in some Australian jurisdictions

Key findings are that -

• One-fifth (21%) of the 2010 national regular ecstasy user sample [693 people] reported lifetime use of mephedrone and 17% reported use of mephedrone in the six months preceding the interview.

• Mephedrone was typically swallowed or snorted on a median frequency of 3 days or approximately once every two months.

• Use of mephedrone was most common in particular jurisdictions such as Tasmania (47%) and Victoria (28%) followed by Western Australia (16%) and Queensland (13%).

• There were no differences between those who had or had not used mephedrone on a range of variables. However, regular ecstasy users who reported recent use of mephedrone were typically younger and were more likely to report recent use of hallucinogens, ketamine and amyl nitrate/nitrous oxide than those who had not used mephedrone. They were also more likely to report frequent and extended use of stimulants in the last six months. In terms of risk behaviours they were more likely to report recent unprotected sex with a casual partner and were more likely to report committing a crime in the last month.

• Given the recent increase in the use and availability of mephedrone in Australia, it is important that health workers in this area to be familiar with this drug and its effects and that users of the drug receive credible and timely harm reduction messages.

That advice would reflect the authors' findings that -

It is also important that users of the drug receive credible and timely harm reduction messages. In a recent review it was suggested that people with underlying cardiac, neurological, and psychiatric conditions, especially those on medication, are likely to be at greatest risk of serious adverse events. In addition use of mephedrone in combination with other stimulant drugs or alcohol may also contribute to an increased risk of adverse effects. Other harm reduction messages include advice to avoid regular use to reduce the risk of dependence and avoiding dehydration and overheating and intravenous use. In addition, intra-nasal use may result in greater physical harms and risk of dependence and the present research suggests an increased incidence of unsafe sex among users of the drug.

Unsurprisingly, given the tendency of Australian government to adopt easy solutions by cutting funding, the authors note that -

The present research highlights the utility of the EDRS [Ecstasy & Related Drugs Reporting System] in identifying and monitoring emerging trends in illicit drug markets and its role as an early warning system.