Legal warming

I confess to being underwhelmed by the 104 page Breaking The Frozen Sea: The case for reforming legal education at the Australian National University report [PDF] regarding law teaching at the ANU, one of those documents that - as yet - seems to have been discussed more often than it has actually been read.

Melanie Poole, the lead author, comments that -

Kafka wrote that 'a book must be an axe to break the frozen sea of our soul'. I hope that this report can remind us, as a law school community, of how powerful and transformative the law can be. Even the firm hand of stare decisis cannot enclose the human minds and human souls that create, defend, contest and interpret the law. As we study the rules, we should also reflect on our own role in shaping them. As we learn how to 'think like lawyers', let's also cultivate our capacity to think like human beings. As we confront the frozen sea of legal education, let's raise our axes high.

One immediate response might be that 'thinking like a lawyer' and 'thinking like human beings' are not antithetical. Thinking like a lawyer - it's somewhat unclear what that involves - may be useful in protecting and improving the lot of human beings, and indeed of non-human beings. Another response might be to ask whether legal teaching - or 'the law' - is a frozen sea, and whether the cold is determined by the legal profession and Australian society rather than by the Law Dean, the Vice-Chancellor and the academics. The report doesn’t go very far in addressing "how powerful and transformative the law can be": students in search of a reminder about power and transformation would be better off reading Brown's recent biography of Michael Kirby.

Ms Poole argues that -

Law schools are places where many of the world's smartest, most privileged, most powerful (or about-to-be-powerful) people accumulate. But instead of focusing on the things that really matter, instead of developing our capacities as problem solvers, peacemakers, activists or great leaders, we are taught a narrow set of technical, commercially oriented skills. Instead of learning to collaborate with others - that it is amazing what can get done when it doesn't matter who gets the credit - we learn that we should compete, fiercely self-promote and reproduce hierarchy. And instead of opening the door to the wide world of opportunities that awaits us, law schools foster the misleading conception that the 'real world' of law is found only in corporate practice.

That is hardly an original lament. More importantly, it elides questions about student responsibility, about the appropriateness of student expectations and about the role of the legal profession.

The report refers to "a remarkable level of dissatisfaction and cynicism amongst law students and young lawyers across Australia and the English speaking world". Remarkable? Remarkable relative to what? More remarkable than in the past? More remarkable than other professions? Or of blue-collar trades? How much of the dissatisfaction is attributable to what the report expresses as -

While some students cite the prestige and earning capacity of a law degree, other students voiced a desire to use their knowledge and skills to change society. Importantly, students acknowledged that their motivations for pursuing a law degree were not clearly defined. Many students took up the degree to test it out, or because they understood law to be a versatile degree, or – in a remarkable number of cases – 'because they got the grade for it'.

A remarkable number? Perhaps law teaching should be at the postgrad level only, with entry after a humanities degree or several years in the workforce as an adult. A smaller cohort of self-involved, naive and and aimless princesses might reduce the collective angst.

The authors comment that -

Students felt that a lack of meaningful assessment feedback reduced their ability to learn and to improve themselves. Students said they sacrificed their personal lives to study harder, and that when this failed to produce results, they felt inadequate, insecure and frustrated. ... Students found problems with the highly individualist and often adversarial nature of law school assessment practices. While it should be acknowledged that some students 'thrive' on healthy competition, many students stated that student isolation was bolstered by a focus on individual assessment instead of collaborative forms of assessment. Students stated that the banded grading system reinforces this unhealthy competition by ensuring that a few people are 'winners' and most others are 'losers'.

Regrettably there is no acknowledgement of challenges regarding "collaborative forms of assessment". The proposed solution seems to be -

the use of 'democratic learning'. Democratic learning is student-centred and student-contextualised education in which staff and students work together to create the learning environment environment. Staff and students would be equal members in a community of shared educational purpose. ... [and] student-facilitated learning. In this method, later-year students facilitate newer students’ education, encouraging peer-to-peer learning

Fortunately the P2P reference isn't accompanied by other education 2.0 buzzwords.

The report calls on ANU Law to

1. Recognise that the purpose of legal education is as multifaceted and diverse as its stakeholders.

2. Foster this diversity within legal education by:

2.1 Embedding critical perspectives into the curriculum;
2.2 Providing students with meaningful opportunities to reflect on their reasons for attending law school;
2.3 Ensuring that staff and student deliberation on the purpose of legal education is systematically fostered.

3. Provide diverse learning opportunities by:

3.1 Increasing opportunities for clinical placements;
3.2 Encouraging opportunities for civic and workplace involvement (ie volunteer work and work experience);
3.3 Moving extra-curricular activities such as mooting, negotiations and client interviews into the core curriculum;
3.4 Including activities such as submission writing, negotiation and advocacy in assessment.

4. Foster more engaging tutorials by:

4.1 Rearranging tutorial rooms so that students are facing each other [!];
4.2 Providing tutors with guidance on facilitation techniques and methods to engage students in discussion;
4.3 Appointing tutors based on their teaching ability in addition to their expertise in substantive law;
4.4 Allocating marks for tutorial participation where it is clearly tied to learning outcomes and provides an opportunity for genuine, interactive and intellectually engaging participation.

5. Reduce lecture sizes by any means (ie through lecture streams in large compulsory courses).

6. Ensure consistent and high quality teaching through a teaching evaluation process that places increased emphasis on student feedback.

7. Enable students to assess how they have met their own learning goals rather than simply assessing the quality of 'service delivery'.

8. Restructure the curriculum to achieve a greater balance between doctrinal material, diverse learning environments and activities and the study of law in a social, political, historical and cultural context.

9. Adopt a holistic, whole of degree, approach to assessment to provide students with the full range of competencies and skills identified in the ANU College of Law's Graduate Attributes document.

10. Increase the variety of assessment that students are required to complete (ie to include group work, oral assessment and clinical placements).

11. Increase the variety of written assessment that students are required to complete (ie to include case notes, written submissions, policy documents, reports and reflections).

12. Ensure standardised and transparent assessment processes by:

12.1 Providing clear and thorough information on assessment requirements, including the criteria on which an assignment will be assessed;
12.2 Providing constructive feedback, with reference to the assessment criteria, which indicates to students how they can improve their performance.

13. Abolish banded grading and replace it with an alternative grading system (ie a pass/fail system). The ANU College of Law should conduct an additional thorough review of its grading policy.

14. Create a dedicated course to develop legal reading, writing and reasoning skills.

15. Improve student access to teaching staff and encourage increased mentoring by staff.

16. Instigate a mentor program with professionals outside the spheres of academic and corporate law.

17. Enable students to learn and improve through assessment by:

17.1 Ensuring routine and standardised transparency and feedback on assessment;
17.2 Providing model answers to assessment tasks;
17.3 Reducing emphasis on highly weighted individual exams;
17.4 Increasing use of smaller, continuous and collaborative assessment tasks.

18. Augment teaching of critical thinking, from the beginning of the law degree by:

18.1 Making critical perspectives part of assessment;
18.2 Making some critical courses mandatory;
18.3 Communicating the value of trans-disciplinary perspectives to students.

Smashing and framing

From an interview with James Simpson regarding his Under The Hammer: Iconoclasm in the Anglo-American Tradition (Oxford University Press, 2011) -

Enlightenment reception of the image is iconoclastic in two ways.

In the first place, the Enlightenment museum neutralizes and commodifies images so as to render them safe. The Enlightenment theory of aesthetics permitted Northern Europeans to look at religious images without having to break them: admire the beauty of form, aesthetics tells us; ignore the religious content.

A second form of metaphorical Enlightenment iconoclasm applies to the much larger field of the human sciences. Different Enlightenment traditions exercise a philosophical iconoclasm, by describing ideology as false consciousness, an idol that enthralls the naive and that must be broken.

Even as the Enlightenment attempted to master Reformation religion, it borrowed the methods of Calvinist religion. Even as it protected the image itself, that is, it drew on the structure of evangelical critique of idolatry. It then applied that critique to a vast field of knowledge. It practiced historiography by detecting enthrallment, superstition and error; the entire past became a museum of error, a museum of artifacts now observed with cool condescension.

Therefore, Under the Hammer also embraces the genesis of the picture gallery in Northern Europe, born as it was out of fierce iconoclasm. The neutralization of the sacred image in the museum is, of course, only the beginning of other stories, and in particular the resacralization of the image in the museum.

Databuse

'Databuse: Digital Privacy and the Mosaic', a 24 page paper [PDF] by Benjamin Wittes of the Brookings Insitution, suggests that the proliferation of personal data in the hands of third parties has resulted in "a conceptually outmoded debate" founded on a concept of privacy that is no longer useful. He proposes "a different vocabulary for that debate", offering an ostensibly new concept characterised as "databuse". Neither the dismissal of traditional debate nor the new vocuabulary strike me as particularly persuasive.

Wittes notes that -

The question of privacy lies at, or just beneath, the surface of a huge range of contemporary policy disputes. It binds together the American debates over such disparate issues as counter-terrorism and surveillance, online pornography, abortion, and targeted advertising. It captures something deep that a free society necessarily values in our individual relations with the state, with companies, and with one another. And yet we see a strange frustration emerging in our debates over privacy, one in which we fret simultaneously that we have too much of it and too little. This tendency is most pronounced in the counter-terrorism arena, where we routinely both demand — with no apparent irony — both that authorities do a better job of “connecting the dots” and worry about the privacy impact of data-mining and collection programs designed to connect those dots. The New Republic on its cover recently declared 2010 'The Year We Were Exposed' and published an article by Jeffrey Rosen subtitled 'Why Privacy Always Loses'. By contrast, in a book published earlier in 2010, former Department of Homeland Security policy chief Stewart Baker described privacy concerns as debilitating counter-terrorism efforts across a range of areas:

even after 9/11, privacy campaigners tried to rebuild the wall [between intelligence and law enforcement] and to keep DHS from using [airline] reservation data effectively. They failed; too much blood had been spilled. But in the fields where disaster has not yet struck — computer security and biotechnology — privacy groups have blocked the government from taking even modest steps to head off danger.

Both of these theses cannot be true. Privacy cannot at once be always losing — a value so at risk that it requires, for so Rosen contends, "a genuinely independent [government] institution" dedicated to its protection — and be simultaneously impeding the government from taking even "modest steps" to prevent catastrophes.

Unless, that is, our concept of privacy is so muddled, so situational, and so in flux, that we are not quite sure any more what it is or how much of it we really want.

In this paper, I explore the possibility that technology’s advance and the proliferation of personal data in the hands of third parties has left us with a conceptually outmoded debate, whose reliance on the concept of privacy does not usefully guide the public policy questions we face. And I propose a different vocabulary for that debate — a concept I call "databuse". When I say here that privacy has become obsolete, to be clear, I do not mean this in the crude sense that we have as a society abandoned privacy in the way that, say, we have abandoned once-held moral anxieties about lending money for interest. Nor do I mean that we have moved beyond privacy in the sense that we moved beyond the need for a constitutional protection against the peacetime quartering of soldiers in private houses without the owner’s consent. Privacy still represents a deep value in our society and in any society committed to liberalism.

Rather, I mean to propose something more precise, and more subtle: that the concept of privacy as we have traditionally understood it in law no longer describes well or completely the actual value at stake in the set of issues we continue to argue in privacy’s name. The notion of privacy was always vague and hard to pin down as an operational matter in law. But this problem has grown dramatically worse as a result of the proliferation of data about all of us and the ability to analyze and cross-reference that data systematically and instantly. To put the matter bluntly, the concept of privacy will no longer bear the weight we are placing upon it. And because the term covers such a huge range of ground, its imprecision with respect to these new problems creates great indeterminacy as to what the value we are trying to protect really is, whether it is gaining or losing ground, and whether that is a good thing or a bad.

Wittes concludes that -

We debate mosaic issues in the language of privacy because privacy is the only word we've got. It is not, however, the value we are implementing in fact as a society or the value that we really expect as individuals from the companies and governments with which we interact. That value is something else — something that lacks a name in common parlance but amounts to an expectation against hostile, deceptive, or negligent use and handling of data we entrust to third parties. It is an expectation that our data will work for us, not against us, and that while our interests won't always be congruent with those who hold the tiles of our mosaics, the custodians of our tiles owe us consideration—at least to do us no harm.

This is not privacy. It is something else. The sooner we accept that in discussing these issues, we are not operating inside of Brandeis's privacy framework but, rather, engaging in the very project he undertook — that is, imagining new legal categories for new surveillance challenges wrought by technology — the sooner we will confront them effectively and in a fashion that satisfies the many competing interests at stake in the mosaic.

Virtual economies

Knowledge Map of the Virtual Economy: Converting The Virtual Economy Into Development Potential, a 75 page report by Vili Lehdonvirta & Mirko Ernkvist for the World Bank regarding virtual economies [PDF] has been promoted by that organisation under the heading ''3 Billion Virtual Economy Provides Jobs in Developing Countries". The Bank proclaims that -

A new study by the World Bank Group’s infoDev program shows that virtual online currencies and digital work now provide real income opportunities to poor and unskilled workers in developing countries.

infoDev is a global technology and innovation-led development finance program of the World Bank and IFC. The new study, Knowledge Map of the Virtual Economy, finds that more than 100,000 people in countries such as China and India earn a living through online games and websites disseminating micro-tasks.

Jobs in the virtual economy include micro-tasks like categorizing products in online shops, moderating content posted to social media sites, or even playing online games on behalf of wealthier players who are too busy to tend to their characters themselves. The study estimates that the market for such gaming-for-hire services was worth $3 billion in 2009, and it suggests that with suitable mobile technologies even the least-developed countries could benefit from this emerging virtual economy.

Goldfarming for bored Manhattan sophisticates and geeks at ANU is better than starving but we might wonder about the ultimate usefulness of proxy 'micro-tasking' for economic development.

The Bank claims that

Some of the poorest people in the world are already connected to digital networks through their mobile phones. The study shows that there are real earning opportunities in the virtual economy that will become accessible as mobile technology develops. This could significantly boost local economies and support further development of digital infrastructure in regions such as Africa and southeast Asia.

It does acknowledge some disquiet, stating that -

While the virtual economy unlocks a plethora of business opportunities, it should be noted that not all these activities are viewed positively. According to the infoDev study, certain business ventures and services offered may actually detract from the experience of other Internet users. For example, harvesting and selling online gaming currencies or mass clicking "Like" on corporate Facebook pages can create an unfair environment where legitimate game play and user opinion loses value and is represented inaccurately.

Its response is an exhortation to be good -

“Entrepreneurs should focus on digital micro-work that benefits society. Examples include transcribing books, translating documents, and improving search-engine results,” said Dr. Vili Lehdonvirta

Quite. In practice the binary peasants - for peasants many of them will be, rather than members of a politically engaged, self-conscious and vigorous binary proletariat - are more likely to be engaged in "unethical" practices such as "cherry-blossoming" in social network services, on search engines and presumably via spam. The toxic blossom is a neologism derived from the Japanese term for paid fans or spectators -

Since cherry blossoming involves users recommending brands or products for money, it decreases the information value of recommendation engines and rating systems. It may not be illegal, but it certainly goes against the intentions of the designers of the systems, and provides no added value to any of the other users. Thus, although cherry blossoming is in many ways similar to microwork, the crucial difference is that it is directed towards overcoming artificial as opposed to natural scarcities.

Legal Bodies

In its annual report on solicitors in England and Wales the Law Society has indicated that there are 118,000 people with current practising certificates, out of some 150,000 people on the Society's database (ie inc retired lawyers and those no longer following a legal career), up from 38,000 practising solicitors in 1980.

Women comprise around 50% of all practising solicitors (58% gained first or upper second class degrees in law courses against 54.2% of men). 11.1% of practising solicitors were from minority ethnic backgrounds. Around 75% of solicitors are in private practice, of which 20,245 are in the financial sector in the City. Gender disparities were evident in promotion: the Society reports that 48.1% of all male solicitors in private practice were partners in law firms, in contrast to 21.1.% of women.

The Law Council of Australia reported in September 2009 [PDF] that the Australian legal services sector as of mid-2008 employed 99,696 people comprising 5,154 people who were either barristers or employed by barristers, 5,108 people were employed in community legal services (including legal aid commissions, Aboriginal legal services and community legal centres), 84,921 (85.2%) worked in “other” legal services including private law firms, and 4,514 (4.5 per cent) worked in the offices of government solicitors or public prosecutors.

TransTasman Patent Law Harmonisation

IP Australia and the New Zealand Ministry of Economic Development have jointly released a 47 page discussion paper [PDF] regarding a trans-Tasman regulatory framework covering patent attorneys. The proposal is part of the Single Economic Market (SEM) outcomes framework that "aims to accelerate and deepen trans-Tasman regulatory integration and make the IP system work more efficiently for innovators and businesses".

The paper describes a single trans-Tasman governance body that would have responsibility for patent attorney education, training and disciplinary standards. At the moment some 500 patent attorneys reside in Australia or New Zealand and are registered in both countries (around 59% of Australian and New Zealand patent attorneys, excluding those residing in other countries). In Australia the patent attorney profession is regulated by the Professional Standards Board for Patent & Trade Marks Attorneys (PSB) (concerned with education and discipline) - analogous to Law Society regulation of solicitors - with registration being the function of the Director General of IP Australia as Designated Manager under s 227A of the Patents Act 1990 (Cth). The paper notes that New Zealand currently does not have a statutory professional standards board. The New Zealand Patent Attorneys Bill 2008 (the “New Zealand Bill”), currently before the NZ legislature, provides for establishment of the Patent Attorneys’ Standards Board of New Zealand with a similar role and functions to that of Australia’s PSB.

Becoming a registered patent attorney under the New Zealand Patents Act 1953 involves meeting criteria such as passing the New Zealand Patent Attorney Examinations conducted by the Commissioner of Patents in conjunction with the New Zealand Institute of Patent Attorneys (NZIPA). Candidates must also satisfy certain other criteria, such as three years work experience with a registered patent attorney or in the Intellectual Property Office of New Zealand (IPONZ).

The paper notes that -

The trans-Tasman Mutual Recognition Arrangement ... in effect since 1998, allows reciprocal registration in each country, but there remain a number of administrative inefficiencies and inconsistencies. For example, a person has to complete registration formalities and meet registration requirements in one jurisdiction to be entitled to seek reciprocal registration in the other jurisdiction. This leads to a duplication of both fees (added expense) and documentation. While the registration regimes are broadly similar, there are also a number of significant differences between the two regimes. The New Zealand Bill would not address all these differences.

Harmonisation would involve -

establishment of a single trans-Tasman Governance Body or board with responsibility for – Education, Discipline and Registration. It is proposed that the respective roles and functions of the PSB (at least in respect of its responsibilities to the patent attorney profession), the proposed Patent Attorneys Standards Board of New Zealand, the Australian Designated Manager (the Director General of IP Australia), and the New Zealand Commissioner of Patents (Group Manager of IPONZ) would be merged into a new body. Underpinning this arrangement would be a -

• single definition of the functions and services which can only be performed by a registered patent attorney or legal practitioner;

• single patent attorney code of conduct;

• single disciplinary regime;

• consistent attorney qualification/continuing education requirements;

• single registration process and register;

• single fees regime; and

• single secretariat support unit.

The claimed rationale for the new regime is that -

The majority of Australian and New Zealand patent attorneys are registered in both countries. A single governance body will provide economies of scale, saving time money and effort for the profession as a whole.

The mooted benefits for innovators are -

• Better access to patent attorneys in both countries will encourage competition.

• Uniform accreditation of attorneys will support continued high levels of service on both sides of the Tasman.

The claimed benefits for patent attorneys are -

• Less red tape - patent attorneys will only need to register with one organisation.

• Increased business opportunities for attorneys not currently registered in both countries.

The paper covers -

1. A Single Governance Body for Patent Attorneys

2. Consistent Qualification Requirements for Registrationas a Patent Attorney

3. A Single Registrar of Patent Attorneys

4. A Single Code of Conduct

5. A Single Disciplinary Regime

A Joint Working Group of officials from both countries has independently developed this paper, in order to elicit comments from the profession and the public. Unusually, Australia's Professional Standards Board for Patent and Trade Mark Attorneys has not yet been involved.

IP Australia has sought written responses to the discussion paper by 16 May 2011.

Tobacco Marks

The Australian Government has released a 96 page Exposure draft Tobacco Plain Packaging Bill 2011 [PDF] and associated Plain packaging of tobacco products consultation paper [PDF] as the basis of a 60 day public consultation regarding restrictions on cigarette packaging. Those restrictions regulate packaging - and by extension use of trade marks held by tobacco companies - rather than confiscating intellectual property.

The proposal, noted in earlier posts of this blog (eg here and here), is of interest in relation to trade mark law, public health policy, constitutional powers and regulation.

In releasing the two documents Health Minister Nicola Roxon commented that "Australia is the first signatory and the first country in the world to commit to implementing these recommendations on plain packaging and we’re proud of it".

She also said that "the chilling facts are that smoking kills 15,000 Australians a year and costs our society $31.5 billion each year. This plain packaging legislation sends a clear message that the glamour is gone - cigarette packs will now only show the death and disease that can come from smoking".

The Consultation Paper indicates that the proposed statutory restrictions on cigarette packaging (including use of trade marks) aims to prevent tobacco advertising and/or promotion on tobacco product packaging in order to -

• reduce the attractiveness and appeal of tobacco products to consumers, particularly young people;

• increase the noticeability and effectiveness of mandated health warnings;

• reduce the ability of the tobacco product packaging to mislead consumers about the harms of smoking; and

• through the achievement of these objectives in the long term, as part of a comprehensive suite of tobacco control measures, contribute to efforts to reduce smoking rates

The Paper outlines the approach to implementing plain packaging, design testing and targeted consultations, and an explanation of the key provisions of the exposure draft.

Submissions must be received by the Department of Health & Ageing by 5.00pm on 6 June 2011.

Incapacitation

From Jack Goldsmith's 2011/1 Hoover Digest piece on fixing the "abundant dysfunctions in our system for incapacitating terrorists" -

There is no silver bullet for this mess, but a few pragmatic steps can bring progress toward resolution.

First, give up on closing the Guantánamo Bay facility. ... the substitute for detention without trial at the island prison is detention without trial inside the United States, with little if any change in legal rights. The main reason to close the facility is to fulfill a first-week presidential pledge that now, under different circumstances, is too costly.

Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system. ... The main legal foundation for targeting and detention in places such as Pakistan, Somalia, and Yemen is the September 2001 congressional authorization to deal with the 9/11 attacks. But as dangerous terrorists have ever-dimmer connections to September 11, the government is bumping up against the limits of what this authorization permits.

Third, stop using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice. Military detention and civilian trials provide adequate legal bases for terrorist incapacitation.

Fourth, separate the legitimacy of civilian trials from the security of such trials. Much of the opposition to trying Muhammad in a New York civilian court was the potential for massive disruption in securing the downtown venue. Objections to civilian trials diminish if they are moved to more-remote places in the New York and Virginia districts where the crimes occurred.

Fifth, do not seek the death penalty at trial. Many alleged terrorists plead guilty. Most of the hard legal and political problems in trials—including the use of classified information and coerced confessions—arise in the penalty phase, when defendants can seek and introduce any conceivably probative evidence. Many problems with terrorist trials go away if we simply deny terrorists their sought-after martyrdom

'The Kafka-esque Case of Sheikh Mansour Leghaei: The Denial of the International Human Right to a Fair Hearing in National Security Assessments and Migration Proceedings in Australia' (Sydney Law School Research Paper No. 10/111) by Ben Saul - forthcoming in the UNSW Law Journal -

examines the near-total denial of fair hearing rights under Australian law to non-permanent resident, non-citizens whom the national authorities suspect are national security risks to Australia, closely analysing of the case of Dr Sheikh Mansour Leghaei, an Iranian national expelled from Australia in June 2010. It argues, first, that the statutory elimination of procedural fairness rights violates the international human right to a fair hearing in the expulsion of aliens under the International Covenant on Civil & Political Rights (ICCPR). Affected persons and their legal representatives are denied any effective opportunity to see and test the essential allegations and evidence grounding an adverse security assessment. Administrative review tribunals and federal courts are also precluded from any substantive role in testing the reliability of evidence. Whether the person is indeed a risk to national security cannot be rationally determined. Secondly, this article concludes that denying fair hearing rights to non-permanent resident, non-citizens amounts to unjustifiable discrimination on the basis of 'national origin' or 'other status' (temporary migrant status), breaching the ICCPR's non-discrimination and equal protection guarantees. Thirdly, it finds that an affected person's expulsion from Australia without a fair hearing may violate family rights under the ICCPR and children's rights under the Convention on the Rights of the Child 1989.

Saul comments that -

The article firstly concludes that the statutory elimination of procedural fairness rights under Australian security and migration laws (specifically, under the Australian Security Intelligence Organisation Act 1979 (Cth) and the Migration Act 1958 (Cth) violates the international human right to a fair hearing in the expulsion of aliens under article 13 of the International Covenant on Civil & Political Rights 1966. Specifically, fair hearing rights are violated because an affected person is unable to enjoy any effective opportunity to see and test the essential allegations and evidence upon which an adverse security assessment is based. Further, unlike in Britain or Canada, no special procedures exist to enable an affected person's legal representatives to access or test the allegations or evidence, while administrative review tribunals and the federal courts are also precluded from any substantive role in testing the reliability of evidence on the merits.

Where an affected person is thus deprived of equality of arms in legal proceedings, it also cannot be rationally determined whether the person is indeed a risk to national security, or whether such decision is arbitrary or based on unreliable or inaccurate information. There is, in sum, a near-complete denial of the international right to a fair hearing, which puts Australian practice at odds with the more nuanced approach to balancing individual rights and security imperatives in comparable liberal democracies such as Britain and in Europe.

This article secondly concludes that the denial of fair hearing rights to non-permanent resident, non-citizens, in contrast to the fuller rights accorded to citizens or permanent residents in the security assessment process, amounts to unjustifiable discrimination on the basis of "national origin" or "other status" (that is, temporary migrant status), contrary to the non-discrimination and equal protection guarantees in articles 2 and 26 of the ICCPR. Australia has not adequately justified such differentiation in fair hearing rights, since national origin or migration status is not a characteristic that is materially relevant to the security risk posed by a person.

Where an affected person is expelled from Australia on the basis of an adverse security assessment process which does not accord a fair hearing, in individual cases there may also result violations of protected family rights under articles 14, 23 and 24 of the ICCPR and of children‟s rights under the Convention on the Rights of the Child 1989. The case of Dr Leghaei, for example, involved the forcible separation of family members where it remained unknown whether Dr Leghaei was, in fact, a security risk, and therefore it could not be established whether the separation of family members could be justified on national security grounds.

Privacy in the cloud

'The Problem of 'Personal Data' in Cloud Computing - What Information is Regulated?' (Queen Mary University of London, School of Law Legal Studies Research Paper No. 75/2011) by W Kuan Hon, Christopher Millard & Ian Walden argues that -

Cloud computing service providers, even those based outside Europe, may become subject to the EU Data Protection Directive's extensive and complex regime purely through their customers' choices, of which they may have no knowledge or control. We consider the definition and application of the EU 'personal data' concept in the context of anonymisation / pseudonymisation, encryption and data fragmentation in cloud computing, arguing that the definition should be based on the realistic risk of identification, and that the applicability of data protection rules should be based on the risk of harm and its likely severity. In particular, the status of encryption and anonymisation / pseudonymisation procedures should be clarified to promote their use as privacy-enhancing techniques; data encrypted and secured to recognised standards should not be considered 'personal data' in the hands of those without access to the decryption key, such as many cloud computing providers; and finally, unlike, for example, social networking sites, Infrastructure as a Service and Platform as a Service providers (and certain Software as a Service providers) offer no more than utility infrastructure services, and may not even know if information processed using their services is 'personal data' (hence, the 'cloud of unknowing'), so it seems inappropriate for such cloud infrastructure providers to become arbitrarily subject to EU data protection regulation due to their customers' choices.

The authors conclude -

We have advanced proposals which we suggest would enable data protection laws to cater for cloud computing and other technological developments in a clearer and more balanced way.

An accountability approach to data protection responsibilities should be taken by raising the threshold inherent in the 'personal data' definition, basing it instead on the realistic risk of identification and considering a continuum or spectrum of parties (depending on the circumstances) who may be processing personal data, each having varying degrees of obligations and liabilities under data protection law, with the risk of identification and risk of harm (and its likely severity) being the key factors. Such an approach should result in lighter, or even no, data protection regulation of passive utility infrastructure cloud providers, while reinforcing the obligation of cloud providers who knowingly and actively process personal data to handle such data appropriately.

More specifically, it is important to clarify the status of encrypted data and anonymised data to ensure that securely-encrypted data are not treated as 'personal data'. The legal status of the encryption or anonymisation procedure, i.e. converting personal data into an encrypted or anonymised state, also needs consideration and clarification.

As for the industry, cloud computing providers, especially infrastructure providers, may wish to consider developing and putting into place measures to minimise the likelihood of their cloud service being regulated inappropriately by EU data protection laws, such as encryption at the user end by default. They may also benefit from providing more transparency on their sharding and other operational procedures, and from continuing work on developing industry standards, such as on encryption of data to be stored in the cloud, including various elements of privacy by design. Such an emphasis on standards, while facilitating a more flexible and pragmatic approach to the regulation of the various actors in the cloud ecosystem, should also help to shift regulatory focus back to protecting the interests of individuals.

Parliamentary entitlements

Identity can be constructed through legal entitlements, for example through access to privileges or rewards that are unavailable to people who do not share that identity. One example in Australia is entitlements provided to Australian Government mibnisters, members of the national legislature, ministerial staff and families of political representatives.

The Committee for the Review of Parliamentary Entitlements, a body under the auspices of the Australian Department of Finance & Deregulation, has released a 147 page report [PDF] on investigation over the past year. The report, which follows criticism by the Australian National Audit Office, proposes changes "to improve the parliamentary entitlements framework.

The report comments that the existing arrangements are "an extraordinarily complex plethora of entitlements containing myriad ambiguities". The arrangements encompass at least 11 statutes, three sets of regulations, six Remuneration Tribunal determinations and reports, 21 determinations made by the Special Minister of State under the Members of Parliament (Staff) Act 1984 (Cth) and nine formal procedural rules and sets of guidelines made by the minister to give effect to Remuneration Tribunal determinations.

The Committee states that -

This mix of primary legislation, regulations, determinations, procedural rules, executive decisions, accepted conventions and administrative practices has resulted over the years in inconsistency, ambiguity, duplication, overlap, redundancy and gaps in the framework. To illustrate with just one example: telephone services for senators and members are provided through seven overlapping entitlements under four heads of authority.

It goes on to call for greater simplicity and transparency, commenting that -

No-one should be required to work within such a complex system; neither senators and members nor those required to administer the entitlements. [Our] recommendations aim to ensure that senators and members are given relevant and adequate resources to do their jobs within a simplified, transparent and accountable framework that has regard to contemporary community standards. In making its recommendations, the committee has endeavoured to strike a balance between the needs of parliamentarians and public confidence in the appropriateness of the level of support provided to elected representatives.

The system of entitlements derives from sources that over time have become less transparent as the number and diversity of benefits provided to senators and members have increased. The Committee suggests that it is important to "separate remuneration from the tools of trade or means by which senators and members carry out their roles (for example, office facilities and transport)", with the former being determined by the Remuneration Tribunal and the latter covered by a single piece of legislation (administered by the Special Minister of State). In a brave recommendation it argues that the Remuneration Tribunal - currently with only an advisory role regarding the base salary of MPs - should be given back the power to determine parliamentary salaries directly, with removal of the legislature’s right of disallowance by means of a majority resolution in either house. The 'tools of trade matters' would appropriately be determined by the Minister, drawing on advice from an independent advisory committee. All salary matters should be determined independently by the Remuneration Tribunal following a work value assessment, with all entitlements providing a personal benefit (such as the electorate allowance, initially intended to cover items such as additional accommodation expenses, donations and subscriptions to associations) being considered a part of the salary and taxed accordingly.

The Committee also noted "strong public sentiment that publicly funded post-retirement travel ... is a benefit not in keeping with community standards" and should be abolished. It noted the lack of workers’ compensation insurance for MPs, "a gap in the existing framework that is out of step with community standards".

In discussing governance the report endorses the recent decision to publish details of all expenditure on parliamentary entitlements administered by Department of Finance & Deregulation, publication that should be underpinned with a legislative basis. MPs should be required to provide a link on their official parliamentary website to individual expenditure reports.
Noting dissiculty in the articulation and application of statutory definitions of 'parliamentarians’ business' - - ie activities in relation to their responsibilities as members of the legislature - the committee suggested that -

the government identify activities that, regardless of the category of business in which they might fall, would be publicly funded (for example participating in public debate, attending meetings and representing the interests of constituents), or would not (for example producing and distributing how-to-vote material). Activities that were not identified would not be publicly funded.

Restrictions would be placed on some entitlements during election campaigns, with for example access to the printing and communications entitlement ceasing on announcement of the election date and restrictions on payment of travelling allowance to personal staff working at a political party headquarters in the lead-up to elections.

MPs should given an option to take an allowance in lieu of a private-plated vehicle and receive a broad transport budget allocation to cover all other forms of car transport (eg taxis and hire cars) rather than "the current set of individual, rigid entitlements". The overseas travel entitlement for the Leader and Deputy Leader of the Opposition should be increased (updated to the equivalent of one round-the-world business class trip each year while in office), with "the provision of modest information resources at Parliament House" and consideration of additional remuneration for shadow ministers. Employment of family members by MPs should be made more transparent.

Given introduction in 2008 of a code of conduct for ministerial staff, the Committee recommends a requirement for non-ministerial MOP(S) Act employees to declare in writing the nature of any secondary employment so that the employing senators and members can judge if there are conflicts of interest. A more useful requirement would involve publication of those interests.

Accessible Transport

The Victorian Council of Social Service (VCOSS) has published a brief report [PDF] on its December 2010 Free To Move: VCOSS Accessible Transport Forum, which brought together 80 people from accessibility advocacy entities, transport users with disabilities, community service organisations, local government representatives, transport service providers and government for a discussion regarding continuing concerns regarding access to public transport in the years after the VCOSS Accessible Transport Watch Project report in 2008.

VCOSS noted that -

Everyone should be able to get to where they need to be, whether it's to work, shop, attend doctors or other services, visit friends or enjoy a day out. Being able to 'get there' is a basic requirement for a good life. We all need good transport choices so we can participate in and contribute to our communities.

But these choices aren’t available to many people in Victoria today. Not everyone can drive a car, or afford to have one. Not everyone can rely on family and friends for lifts, or afford to pay for taxis when they need them – even if they get subsidised fares. And many are unable to use public transport, which should be accessible to all who live in the community.

Accessible transport options are needed for people as they get older and become frail, if they have impaired mobility, use a trolley to get their shopping home, or use pushers and prams for their children. With an ageing population and a rising rate of disability, these options are becoming increasingly important.

Key findings from the Forum are -

Accessibility Planning Processes

1 The Disability Standards for Access to Public Transport should be one mechanism among many to improve the useability of the transport system, and should not be the only consideration in achieving greater accessibility

2 Accessibility should be incorporated into planning processes systematically, with a long-term vision for the future accessibility of the system

3 Transport infrastructure planning requires a conceptually coherent framework for understanding and integrating the needs of transport users

Accessibility Improvements in Public Transport

1 There are continuing barriers to using wheelchairs and scooters on public transport vehicles, including ensuring stability, ensuring access to designated spaces, provision of information on the use of mobility aids and issues regarding the use of aids that do not meet current public transport standards

2 Providing level access boarding on public transport vehicles remains a key challenge for the system

3 There continue to be concerns about the accessibility of public transport passenger infrastructure, including ramps and lifts, toilets, TGSIs , and connecting pedestrian pathways

4 There are suggestions for improvements in interactions between staff and transport users with disabilities, and problems with vehicle queuing, late services and managing cancellations.

5 There remains additional work to ensure everyone can navigate the transport system

6 Timetables and scheduling should indicate the availability of accessible services, and be provided in useable formats

Governance and Community Engagement

1 The proposed Public Transport Development Authority (PTDA) needs an appropriate level of commitment, political support and funding in order to prioritise accessibility improvements and co-ordinate accessible services across the transport system

2 The PTDA needs to be accountable, and transparency would be improved by a regular program of accessibility audits whose findings are made public

3 Transport Agencies require improved communication, consultation and complaints handling procedures to improve their knowledge of accessibility concerns

Community Capacity and Advocacy Strategies

1 There is fragmented capacity among accessibility advocacy communities, and addressing this lack of communication should be a priority in the community response to accessibility issues

2 There is a role for VCOSS in facilitating advocacy co-ordination for accessible transport

3 Public advocacy should be included as a mechanism to ensure accessibility issues are prioritised

Those findings reflected the VCOSS 'Top Ten Problems with Transport Access in Victoria' -

1. Funding improvements

The previous Government promised $150 million for accessible public transport, but didn’t allocate funds in the State Budget. The new Government has not yet committed funding for upgrades.

2. Meeting the access standard

The previous Government failed to reach the legal targets for accessible transport in 2007, and would not commit to meeting them in 2012. The Coalition Government should make this a priority.

3. Knowing when and where to travel

It is often hard to find out when and where accessible services are available. The Metlink website is difficult to navigate, and it can be difficult to track where level-access tram stops are, or when low-floor trams will be scheduled. It is even harder for people who don’t use the internet. Timetables at bus and tram stops can be too small to read, and don’t indicate accessible services. Many people struggle to find out if they will be able to move between the train station and the bus stop they need.

4. Finding services

Knowing where to go to catch a train, particularly at multi-platform stations, can be difficult because signs are often not available or are unclear. Small writing, lack of tactile signage and misleading Tactile Surface Indicators, and lack of audible announcements all cause problems at stations and stops for people with visual impairments.

5. Getting on and off

The gap between trains, trams and buses and the platform or stop is a major concern for many travellers. On trains, it is a major safety risk, including for people who are frail or ambulatory or visually impaired, and for small children. Some train stations have narrow platforms at the wheelchair boarding point. Even where low-floor trams meet a platform stop, the gap can still be too large for some mobility aids. Staff may not realise that a person needs assistance, or passengers do not know to make space. Boarding with or storing prams, trolleys, scooters and luggage can also be issues.

6. Knowing when to get off

Some transport services, including SmartBuses and main train services, have good automatic displays and audible announcements. All too often, however, these services are not fitted, functioning, or clear.

7. Using important facilities

Access to facilities in and around public transport hubs can be major issues for people with disabilities or impaired mobility. Some ramps do not meet standards, and lifts are subject to vandalism, have very limited space, or may be broken down. Ticketing machines may be inaccessible or hard to navigate. Some rural and regional services require 24 hours notice for people with mobility impairments to use them. There are sometimes concerns about adequate seating. Many Victorians also continue to be frustrated that they must ask permission to use accessible train station toilets.

8. Improving areas around stations and stops

Lack of pedestrian, interchange and parking infrastructure is preventing people from using public transport. While stations or stops might be accessible, the paths to get to them aren’t, or it is not easy to change between transport modes. Some stations have poor parking options for people with disabilities, or no place to drop off people with impairments to catch the train.

9. Feeling safe and accessing help

The ability to attract the attention of public transport staff to ensure people can board, disembark or if they require assistance can be difficult on some vehicles, particularly when stop buttons malfunction. Poor lighting, safety concerns at isolated locations and vehicle instability can make passengers fearful of injury and personal safety.

10. Improving vehicle design

To ensure public transport is safe for all, attention needs to be paid to the configuration of passenger vehicles, so that there is adequate space for mobility aids, prams and luggage; clear understanding of priority seating allocation; sufficient grab-rails for stability; and ensuring that design takes into account that passengers move differently where there are people with mobility aids.

Fraud

The Australian Institute of Criminology has released its 96 page report on Fraud against the Commonwealth 2008–09 [PDF], a document to which News Corp imprints claimed "exclusive access". (The ministerial media release indicated that "The Fraud Against the Commonwealth report has been pro-actively released publicly for the first time amid a Freedom of Information request"; News presumably requested the report under the FOI Act, with the Government thence having to give effect to its stated commitment to openness and accountability" through what was subsequently described as "proactive publication".)

The AIC indicates that the report -

presents the findings of the seventh annual survey of the fraud experiences of Australian Government agencies reported under the Commonwealth Fraud Control Guidelines, May 2002. It is the third survey undertaken by the Australian Institute of Criminology. As required by the Guidelines, the AIC is to produce a report each year on fraud against the Australian Government and fraud control arrangements within Australian Government agencies. The current report is based on information relating to the 2008–09 financial year, which was supplied by Australian Government agencies after October 2009. Data were provided through the completion of a secure online survey by relevant agencies. In addition, and as required under the Guidelines, this report includes additional data provided by the Australian Federal Police and the Commonwealth Director of Public Prosecutions relating to fraud investigations and prosecutions, respectively. It also reviews and compares public sector fraud findings derived from various fraud surveys undertaken in recent years by market research organisations and consultancy practices.

Readers with an interest in identity offences (eg individuals buffing their attributes in order to gain government social service payments to which they are not entitled) and mechanisms such as the Australia Card (the subject of a work noted here) will appreciate the report's coverage of 'Social Security Fraud'. For example -

information, or omitting relevant information, to a government agency in order to receive a social security benefit to which the person is not entitled. Benefits can include unemployment benefits, disability pensions and family allowances. In a report calculating the cost of fraud in the United Kingdom, the National Fraud Authority (NFA) reported that benefit fraud against the Department for Work and Pensions amounted to £1.1b in 2008–09. This represents an increase of £500m from the estimated mid-point of £700m in 2005–06, reported in the 2008–09 Fraud against the Commonwealth report (Levi, Burrows & Hopkins 2007). This included:

• £260m in housing benefit;
• £250m in income support;
• £110m in pensions credit;
• £110m in other related fraud;
• £80m in jobseekers allowance;
• £70m to incapacity benefit;
• £45m in disability living allowance;
• £50m in carers’ allowance;
• £50m council tax benefits;
• £10m in instrument of payment fraud; and
• £10m in interdependencies (NFA 2010).

In Australia, Centrelink administered $86.8b in payments to 6.8 million customers in the 2008–09 financial year alone. The large customer base of Centrelink leaves the agency particularly vulnerable to fraud. One of the ways to combat social security fraud is through the use of 'tip off' hotlines. In 2008–09, Centrelink conducted 50,277 entitlement reviews resulting from public tip-offs, which led to alterations to the customer’s payment and/or a debt of $119.3m (Centrelink 2009). In the 2008–09 financial year, Centrelink conducted nearly 3.9 million entitlement reviews that resulted in 641,504 payments being cancelled or reduced and generating customer debts totalling $536.2m (Centrelink 2009).

One response might be that social welfare fraud - or the fraud that is detected and reported, not necessarily the same thing - amounts to quite small sums on a per capita basis. The notional cost of the $119m "alterations" and "debt" is less than $5 per capita per year; without condoning fraud we might ask whether a few cents per week is an acceptable cost, part of the price paid for the liberal democratic state and - dare I say it - less than the cost of acquiring and maintaining glamorous but unfunctional military hardware.

We might also ask whether the bureaucracy involved in recovery of $536m debts is cost effective and whether the debt recovery strategy means that some deserving people are denied support by the state.

The Government indicated that overall fraud against the Commonwealth has been reduced by 10% (in dollar values) and was equivalent to around 18 cents in every $100 spent by the Commonwealth. (The statement refers to "every $100 invested by the Commonwealth", given the hegemonic value that government is a commercial enterprise that "invests".) 23% of the money lost through light-fingered public servants, commercial fraud and welfare fraud is recovered.

Given the need for politicians to be seen to emote over misuse of public funds the Minister for Home Affairs & Justice Brendan O’Connor indicated that the Government has "launched new measures to help Commonwealth agencies prevent and combat fraud".

Fraud is a really low act. There are vulnerable people who genuinely need our help, and fraudsters play on our nation's generosity for their own criminal purposes. Fraud is completely unacceptable and that's why we're doing all we can to stop it. We're determined to fight fraud against the Commonwealth by minimising chances for it to occur, and rapidly detecting, investigating and prosecuting fraudsters.

Those new anti-fraud measures include -

• shorter and simpler Commonwealth Fraud Control Guidelines outlining agency obligations

• a new central online portal, Commonwealth Fraud Control Information Online [here], where agencies and the public can find fraud control information.

The Minister indicated that Commonwealth agencies reported losses of about $597 million in 2008-09, with the number of dedicated fraud control staff being boosted by 38% and 827 more workers employed to combat fraud against government departments.

Even though there were fewer incidents and losses, it's still a lot of money and there's always more we can do to boost our vigilance against Commonwealth fraud. ... It's awful to think that some people seek to make a profit from measures aimed at relieving human misery, but it does happen and we need to do all we can to stop it.

Perhaps we don't need to do "all we can", particularly if compliance costs are greater than loss prevention/recovery. A different mindset - and a wariness about indulging popular mythologies - might be appropriate.

Content Regulation

Having provided a submission to the inquiry of the Australian Parliament's Joint Select Committee on Cyber-Safety I have been alerted that the Committee is now conducting an online survey of Australian youth aged 5-18 years to gain insight into their experiences online.

The Committee secretariat comments that -

The evidence which the Committee has received highlights the great value of youth consultation in the development of the Committee’s report. The Committee believes the input of young people is critical in its inquiry and will be invaluable in making reasoned conclusions and viable recommendations to government.

The Committee’s online survey of youth is one of the consultative strategies undertaken and will be conducted until Wednesday 27 April 2011. The survey is available at www.aph.gov.au/cybersafety. To ensure the survey is audience appropriate, the Committee has developed two similar questionnaires: one for 5-12 year olds and one for 13-18 year olds. The survey is completely anonymous.

A laudable initiative.