European Arrest Warrant

Having read the 19 page third Report from the Commission to the European Parliament & the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [PDF] I am dipping into the associated 190 page Commission Staff Working Document accompanying document to the third Report from the Commission to the European Parliament 7 the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [PDF].

The Commission blandly comments that -

Europeans have the right to travel freely within the EU for work, study or holidays. But open borders should not allow criminals to evade justice simply by travelling to another Member State. The European arrest warrant – in effect since 2004 – provides an efficient tool for extraditing people suspected of an offence from one EU country to another, so that criminals have no hiding place in Europe. For example, dozens of suspected drug smugglers, murderers and child sex crime offenders have been brought back to the UK from Spain thanks to the system. While there are many successes, EU Member States can improve how the system – which is based on mutual confidence between national judicial systems – operates, the European Commission found in a report released today. Member States should use the European arrest warrant with due regard to fundamental rights and the actual need for extradition in each case.

It notes that -

National governments need to build up trust between their judicial systems so that the European arrest warrant works even more efficiently. In view of their important fundamental rights implications, European arrest warrants should not be issued mechanically, or automatically, for crimes that are not very serious such as bicycle theft.

The report indicates that -

Member States issued 54,689 European arrest warrants between 2005 and 2009, leading to 11,630 suspects being surrendered. Over the same period, the arrest warrant has had a marked effect in speeding up the transfer of suspected offenders between EU countries. Extradition before the arrest warrant used to take an average of one year, but this has now been cut to 16 days when the suspect agrees to surrender, or 48 days when they do not. The European arrest warrant has therefore become a key tool in the fight against crime, and an important aspect of internal security in the EU.

Among non-specialists the European Arrest Warrant has arguably attracted most attention in connection with claims regarding Julian Assange. The Commission comments that -

Among those surrendered, thanks to the European arrest warrant, were a failed London bomber caught in Italy, a German serial killer tracked down in Spain, a suspected drug smuggler from Malta extradited from the UK, a gang of armed robbers sought by Italy whose members were then arrested in six different EU countries and very recently a large international operation against highway cargo theft networks was dismantled in five countries.

It goes on to suggest that operation of the warrant scheme could be improved -

The report highlights that the effectiveness of the European arrest warrant can be hampered by concerns over respect for fundamental rights in Member States and a possible over-use in cases that are not very serious.

The Commission is tackling some of these issues by helping to guarantee fair trials through minimum EU standards for the rights of people suspected or accused of a crime. The EU has already adopted legislation on the right to interpretation and translation in criminal proceedings (IP/10/1305) and proposed common rules to guarantee suspects are informed of their rights (IP/10/1652). Further measures are planned to ensure access to a lawyer and the right to communicate with family members and employers. Each of these measures will apply to suspects who are subject to a European arrest warrant, helping to ensure respect for their fundamental rights.

Yet Member States are responsible for making the main improvements in how the European Arrest Warrant is implemented. Member States should make sure the arrest warrant system is not undermined by multiple arrest warrants for offences that are not very serious, such as the theft of a bicycle. Before issuing an arrest warrant, Member State judicial authorities should consider the seriousness of the offence, length of sentence and the costs and benefits of executing an arrest warrant. The principle of proportionality needs to be carefully respected when implementing the warrant.

As a result the Commission aspires to -

• call on EU Member States to fill gaps where their legislation fails to fully comply with the framework decision setting up the European arrest warrant;

• ask Member States to ensure that judicial practitioners, such as prosecutors, do not issue an arrest warrant for very minor offences, in line with the guidelines set out in the handbook on the arrest warrant, including countries where prosecution is mandatory;

• come forward with proposals in before the end of 2011 to step up training for police authorities, judicial authorities and legal practitioners on the arrest warrant to ensure consistency and effectiveness in the way it is applied and raise awareness of the new EU safeguards for procedural rights;

• encourage Member States to implement complementary measures (four Framework Decisions) addressing issues such as the transfer of sentences and judgments when the defendant is not present;

• seek to improve statistical data collection on the arrest warrant from the Member States, so that the system can be properly evaluated;

• continue to monitor closely the operation of the arrest warrant and consider all possible options to address shortcomings, including further measures to improve procedural rights.

A rhetoric of justice

A recent post questioned the facile Australian Crime Commission report on organised crime, long on emotive statements but - alas - short on facts, coherent analysis of dangers and nuanced strategies for responses to those dangers.

The crime-fighting rhetoric is evident in yesterday's media release from the Minister for Home Affairs & Justice - 'Launch of Organised Crime in Australia 2011 report -

If there was a 'how to' manual written on waging war against organised crime, then the content of Organised Crime in Australia 2011 would surely comprise the first and most important chapter.

Because this report helps us to know our enemy and that is the principal step needed in any campaign against them.

Organised Crime in Australia 2011 is compelling reading. It is not an academic exercise of assembled facts and figures. It is a profile of organised crime - the characteristics of those involved; what drives them; and the spread of activities in which they're involved.

It gives government, business and people in all walks of life the information they need to enable them to better respond to the threat of organised crime now and into the future.

Quite simply, an educated and informed public makes for a safer community.

Indeed. The profile provided by the "compelling reading" is, unfortunately, superficial and the document is an inadequate "'how to' manual". We might question the viability of characterising law enforcement as "waging war against organised crime" (and indeed unpack what we mean by "organised crime") before engaging in a bout of self-congratulation about receipt of "the first and most important chapter". (The second chapter presumably features more funding, lots more funding, for law enforcement personnel and for the production of similar documents, alas at a time when the Government has slashed funding for the Australian Law Reform Commission and for the Australian Institute of Criminology).

The Minister went on to comment that -

As both the Minister for Justice and Minister for Privacy and Freedom of Information, I am in a unique position to drive the Gillard Government's agenda for openness and transparency.

By having an understanding of the existence of organised crime in Australia, the community and the sectors affected will be able to more fully engage with the Government on the issue as we seek to ensure the continued security and prosperity of the country.

Understanding requires more than warnings that baddies are bad, big, bold and everywhere. The "agenda for openness and transparency" might more appropriately be driven through some hard data, a recognition of difficult choices, an acknowledgement of costs and care in characterising offenders.

... between 10 to 15 billion dollars every year is lost as a result of organised crime.That is quite hard to even imagine. But if you look around you, at the size of this venue we are at today. Now imagine this area filled with $100 notes - from where we are standing, back to the entrance - that is $15 billion in stacked notes - that would fill a space just over 16 000 cubic metres in size. ...

To put it into perspective, if we could recover the money lost to organised crime over the last four or five years, we could return to a budget surplus, without doing anything else.

Every dollar stolen through organised crime activity is a dollar that cannot be spent on education, health or any number of services. In this way, organised crime steals from every Australian citizen every day.

And this is why we must concentrate our efforts to take back the billions of dollars that wealthy criminals remove from the legal economy and rightfully return it to Australians.

Let's not acknowledge that not all participants in "organised crime" are "wealthy criminals". Let's not provide other points of reference, for example that piling the money spent by Australians on pet food and veterinary services each year would occupy almost as many cubic metres.

ALRC Review

The Senate Legal & Constitutional Affairs Committee has released the report [PDF] of its inquiry into the Australian Law Reform Commission (ALRC), featuring a quote from the submission by this blog's author.

The Committee's recommendations are that -

Recommendation 1: the Australian Government restore the ALRC's budget cuts for the period 2010-11 to 2013-14 as a matter of urgency.

Recommendation 2: the ALRC Act be amended to provide for a minimum of two standing, fixed-term (not inquiry-specific), full-time commissioners.

Recommendation 3: an additional full-time commissioner be appointed, for each additional inquiry referred to the ALRC, in circumstances where the ALRC already has two or more ongoing inquiries.

Recommendation 4: the ALRC's public information and education services program be resumed immediately.

Recommendation 5: the ALRC be provided with all necessary resources to enable it to continue to travel to undertake face-to-face consultations as part of its inquiry processes.

The committee concludes that -

The ALRC is critically important to the development of legal policy in Australia. It has a proud history of undertaking important reviews and inquiries into key areas of law and making significant recommendations to unify and improve Australia's laws. The ALRC's high quality of work cannot continue on a shoestring budget.

In order to maintain this important organisation, the government must provide the ALRC with the necessary funds to enable it to have a full complement of qualified staff, including full-time commissioners; to be accommodated in premises that cater to the nature of the ALRC's work; to provide a comprehensive public information and education program; and to allow the ALRC to travel to undertake extensive consultations for the purposes of its inquiries.

The dissenting report from the Government senators states that -

Government Senators consider that the Australian Government strongly supports the work of the ALRC. As Mr Wilkins stated at the first public hearing:

The government regards the work of the [ALRC] as important to a vibrant and sustainable legal system...[T]he [ALRC] is highly regarded for the way it goes about its work, including the quality of its research and its emphasis on consultation.

The changes to the ALRC's structure introduced by the FFLA Act will improve the ALRC's flexibility to respond to circumstances as required, and will enhance the ALRC's ability to undertake expert analysis through access to subject-matter expert commissioners for specific inquiries. Government Senators also believe that the ALRC is adequately resourced to undertake its important functions, particularly in light of the Attorney-General Department's ongoing commitment to assist the ALRC and ensure that it is adequately resourced.

Social x-rays and scary stuff

Coco Chanel reputedly quipped that you can never be too rich or too thin. The Australian Crime Commission seems to have embraced that maxim in its latest report on Organised Crime In Australia 2011 [PDF].

The report has been greeted with the usual scare headlines and pictures of proud law enforcement personnel displaying packages of Colombian nose candy. The ABC for example reports -

Drug, fraud gangs costing Australia $15b a year

Organised crime is costing the Australian economy a staggering $15 billion a year, according to new figures released by the Australian Crime Commission.

The Commission's report has found that credit card fraud, identity theft and cyber crime are all on the rise.

But it is Australians' love of illicit drugs that is proving to be the most lucrative source of income for organised crime. ...

Home Affairs Minister Brendan O'Connor says organised crime now plays out on a worldwide stage.

"Because of technology, because of the evolving nature of our economy, crime has gone global, increasingly crime is transnational," he said.

"Criminals are no longer recognising boundaries of states, that's why law enforcement agencies have to work closer and closer together.

"We are seeing through intelligence and close co-operation successful outcomes in detecting, disrupting and apprehending criminals but we need to do more.

"This report is a reminder to the public that these are major challenges and people must make sure they secure themselves."

The 103 page report is, alas, thin ... very thin.

In dealing with identity crime it for example states that -

• Organised crime groups which engage in identity crime take advantage of weaknesses in identification and authentication processes.

• Some organised crime syndicates have become professional identity crime ‘specialists’, with the single purpose of producing high-quality fraudulent identity documents.

• Mail theft remains one of the enablers of identity crime.

• Card skimming—the theft and use of identification data from financial transaction cards—is now considered a prominent feature of the identity crime market.

• If chip and personal identification number (PIN) technology is more widely operational in Australia by 2013 it will reduce card skimming.

• Identity crime is likely to increase in the future.

D'oh!

The report goes on to explain that -

Credit card fraud, Internet scams to elicit banking and personal details, identity theft, social security fraud —identity crime is one of the ways in which serious and organised crime reaches into many ordinary businesses and homes. Identity crime is a common element in serious and organised crime and poses a critical risk to the Australian community. Fraudulent identification is used to cheat unsuspecting victims, conceal criminal activities and movements and evade detection or arrest. Advances in information and communications technology provide unprecedented opportunities to exploit greater numbers of people with each new criminal scheme.

Discussion

Identity crime encompasses the theft of identity information and related financial information, the assumption of another identity for fraudulent purposes and the production of false identities and financial documents to commit crimes. The main targets for fraudulent identity documentation are banks, lending agencies and other financial institutions and taxation/revenue collection agencies. Organised crime groups which engage in identity crime take advantage of weaknesses in identification and authentication processes. Identity crime allows them to avoid taxation, obtain fraudulent loans and withdraw funds illegally, open and operate bank accounts in false names for the purpose of money laundering and facilitate organised theft by shopping groups using false credit cards and skimmed card data.

Identity crime is also evident in taxation fraud, where false identities are used to lodge fraudulent tax returns for refunds. By using someone else's identity, the perpetrator attempts to remain anonymous and at arms length from the fraud. Identity crime is both a crime type in its own right (at least at state level) and an enabler of other crime types. Syndicates have become professional identity crime 'specialists', with the single purpose of producing high-quality fraudulent identity documents. Identity crime enables other crime types in two ways:

• false or fraudulent identities make it more difficult to identify who is committing offences

• identity crime provides a means of financing activities such as money laundering, people smuggling, terrorism, fraud and drug trafficking.

Intelligence indicates that specialist groups operate large-scale identity production facilities in Australia, providing documents to criminal syndicates.

Identity crime groups use both sophisticated, cost-effective technology and simple ‘off-the-shelf’ products to produce identification and credit cards that replicate overt and covert security features.

Mail theft remains one of the enablers of identity crime. Personal information continues to be regularly sent through postal services and, even though there are security processes protecting this information, some criminal groups are likely to continue using the post to obtain identifying documents and particulars.

Card skimming — the theft and use of identification data from financial transaction cards — is now considered a prominent feature of the identity crime market. Card skimming is becoming more structured, with overseas and domestic groups involved. It allows criminal groups to launder funds and to buy goods and sell them for profit. It also supports other offences such as card fraud and is a source of funding for other crime types.

Identity crime is likely to increase in the future. A number of factors are expected to influence this, including technological advances increasing highspeed information flows (which will allow criminal groups to share information faster and may make detection more difficult), increased use of wireless remote communications, and the lack of widespread biometric identification measures (such as those which incorporate fingerprints).

As an enabler, identity crime can obscure the nature and identity of people who commit other crimes — ensuring it will remain a feature of the organised crime environment. The growth of identity crime will also be driven by the nature, diversity and evolution of identity crime syndicates and offences. However, there may be some inhibitors to slow the momentum. If chip and PIN technology is more widely operational in Australia as expected by 2013, it should reduce card skimming. If biometric measures are introduced on a broader scale and government-endorsed document verification schemes continue to be implemented, this should also slow the growth of identity crime. Government initiatives may also slow the growth of identity crime. For example, the Government is working with the states and territories to implement the National Identity Security Strategy (the Strategy) agreed to by the Council of Australian Governments to strengthen identity management processes to prevent and combat crime. The Strategy includes measures to improve standards and procedures for verifying consumers’ proof of identity when registering for government services, enabling the general public to have greater confidence in using government services online, and enhancing interoperability of biometrics. The Government has introduced new legislation (the Law and Justice legislation Amendment (Identity Crimes and Other Measures) Bill 2010) which inserts identity crime offences into the Commonwealth Criminal Code and includes measures to assist victims of identity crime.

As the banking and finance sectors are increasingly being targeted by cyber and identity crime, the Government is engaging with those sectors to develop a collaborative partnership to prevent identity crime, in particular the harm caused by credit card fraud. A multi-agency Identity Crime Implementation Team has been established to develop policy and operational responses to identity crime.

The Government also undertakes public campaigns to raise awareness of identity crime and how to protect a person’s identity. Examples of this include the 2010 National fraud Awareness Week, which included more than 100 partners from government, the private sector and the community, and the release of a booklet titled ID Theft – Protecting your Identity.

No solid statistics, no substantiation through reference to convictions, no critical evaluation of aspirational statements regarding national identity card schemes (inc biometrics) or the effectiveness of the various strategies and teams, and little recognition that new technologies potentially facilitate law enforcement (rather than merely empowering criminals)but pose questions regarding justice.

As for the notion of 'organised crime', it's all very scary -

a dynamic, ever-evolving transnational phenomenon of immense size. Organised crime is sophisticated, resilient, highly diversified and pervasive. Current patterns of organised crime are more complex now than at any point in history.

Organised crime groups are entrepreneurial and unrestrained by legislation, borders, morality or technology. They are adaptable, innovative and fluid — infiltrating a wide range of industries and markets, well beyond areas generally considered vulnerable.

They are strategic and continually scan the marketplace for vulnerabilities, new opportunities and emerging technologies in order to make the greatest profit. They are flexible about changing direction to achieve their goals. They adjust operations in response to law enforcement efforts to harden the environment. They collaborate for mutual benefit and can quickly disperse and regenerate in other markets if disrupted.

Organised crime operates within and alongside legitimate businesses, spanning multiple sectors to maximise return and minimise risk. Increasingly, organised crime uses logistics planning and aggressive marketing, buys in expertise and specialist facilitators and invests in research and development and risk mitigation strategies.

Given the emphasis on scary stuff, complete with reference to national security threats, the report doesn't offer a definition of 'organised crime'. We are told however that -

In Australia, organised crime involves a highly interconnected milieu of criminally minded groups and individuals, which come together as opportunities arise. Organised crime groups in this country vary significantly in sophistication, structure and modus operandi, dependant on their perceptions of the opportunities and threats that exist at that time. The organisational structures adopted by criminal networks are heavily influenced by their perceived opportunities and threats. Rapidly evolving and temporary criminal structures and capabilities create problems for government and law enforcement agencies in identifying and ‘triaging’ targets and aligning operational and legislative responses.

Organised criminal groups and networks operating in Australia, whether transnational or domestic, can be formidable in terms of their capabilities, resources and resilience. They exploit existing opportunities and create new ones.

Really? a "highly interconnected milieu of criminally minded groups and individuals"? They're big, they're bad, they're everywhere ... and presumably poised to defenestrate your budgie or kitten. As the basis for legitimating the national 'war on crime' I'd prefer something with just a little more bite.

Adding teeth to the TIO

The 39 page Modernising the TIO submission [PDF] from the Australian Communications Consumer Action Network calls for a modernisation of the Telecommunications Industry Ombudsman (TIO), ie the industry-funded non-government dispute resolution mechanism dealing with telecommunication service providers - including ISPs - under the national co-regulatory regime. The TIO was established in 1983

In essence, ACCAN argues that better resourcing of the TIO and an improved governance structure will provide the regulator with much-needed teeth and encourage effective action on behalf of consumers.

The submission was provided to the national Department of Broadband, Communications &the Digital Economy in connection with the review of the TIO scheme, ACMA's Reconnecting the Customer Inquiry and revision of the Telecommunications Consumer Protection Code (TCP Code) revision.

ACCAN is particularly critical of the "antiquated" dual governance structure. The submission comments that -

The original governance structure which remains today created two bodies, a Board and a Council. As noted in the joint submission by former Telecommunication Industry Ombudspersons, John Pinnock, Deirdre O’Donnell and Simon Cleary "this structure was modeled on the first industry ombudsman scheme in Australia ... and was subsequently adopted in insurance, financial complaints and energy ombudsman schemes in Victoria and NSW."

The dual structure established in 1993 remains today and limits consumer representation to the Council. The Board is appointed solely by its members (namely industry). There are no consumer representatives on the Board. Consumers are only represented on the TIO Council. The Board has the power to appoint or veto the appointment of key people, including the independent Chair(s) of the Board and Council and the Ombudsman and Deputy Ombudsman. While the Council can make recommendations as to whom should be appointed, the Board makes the ultimate decision.

The governance structure of the TIO may have worked when it was first established. However, ACCAN believes the TIO now needs a structure that is truly independent, establishes the scheme as a joint initiative of suppliers and customers and allows the scheme to respond quickly to the changing communications environment.

The submission features the following recommendations -

1. That the governance structure be amended to include equal representation of industry and consumer representatives.

2. The governance structure be amended to a unitary structure, with an independent Chair.

3. The TIO expand its jurisdiction to include pay TV.

4. That it be a standard practice for the TIO to collect demographical information about TIO users, including sex, age, ethnicity, disability, level of income.

5. That a base-line survey regarding TIO awareness and accessibility be conducted, with a follow up survey 3 years later.

6. The TIO increases awareness of their services by targeting the different media that different groups access, including local, regional, disability, ethnic, Aboriginal and community radio, television, newspapers, social media and websites.

7. The TIO raise awareness of their services amongst local community agencies, including women's centres, migrant resource centres, media organisations, Art Centres and other community organisations.

8. The TIO develops materials for some of the main Aboriginal and Torres Strait Islander language groups in Australia.

9. The TIO increases the amount of information available on its website and in hardcopy in different languages and alternative formats, including: Braille, HTML/RTF, Large print, easy English, Audio and Auslan.

10. That TIO materials, including on the website, must indicate that people can make complaints in person at TIO offices, via an interpreter. Contact details are provided to make an appointment.

11. The TIO promotes more widely the availability of the Telephone Interpreting Services to facilitate CALD consumers contacting the TIO.

12. The TIO expands its hours of operation until 8pm Monday- Friday, including accommodating time differences across Australia.

13. The TIO and Government include the active participation of young people pursuant to the United Nations Committee on the Rights of the Child, General Comment 12: The Right to be Heard.

14. The TIO and government undertake education with all consumers, including youth, about consumer rights to seek to prevent complaints arising in the first place.

15. The TIO’s website be redesigned to ensure information is easy to find and accessible to all.

16. TIO-published case studies be expanded, and an index of case studies, linked to position statements, be created and be available in print and on-line.

17. Where a significant systemic issue is identified as affecting a particular demographic, the TIO increase advertising about their services through the media that affected group(s) accesses.

18. The government promotes awareness about the TIO through its different departments including: as part of the settlement process for refugees, the citizenship test preparation for migrants and through Centrelink publications and Centrelink correspondence to those who receive Centrelink benefits.

19. That brochures outlining complaint options must be available in all suppliers’ stores, on their websites and on request.

20. Suppliers must prominently publicise the availability and accessibility of external process for resolving disputes in Supplier stores, on Supplier websites and on telephone-based customer information services.

21. Information about the TIO, including contact details should be included in communications from Suppliers to their customers, including, but not limited to: all contracts and billing documents, late notices, disconnection notices and other credit and debt collection activities.

22. The customer should be made aware of the TIO’s role in the complaint handling process from the earliest possible stage (not only after the customer expresses dissatisfaction).

23. Suppliers must provide customers with information about the TIO at the time the customer is told about the Supplier’s internal complaints process and at the time the customer is told about the final outcome of the internal process if the customer is not wholly satisfied.

24. The TIO scheme be described as the office of second resort and not an office of last resort.

25. At level 1 entry, the TIO contact the telecommunications provider directly in writing to inform them of a complaint and the telecommunications provider contacts the customer with the complaint directly within 48 hours.

26. The TIO should only close a Level 1 complaint when the customer indicates it is resolved.

27. The TIO should be empowered to “register” a complaint, refer it to the relevant member and ensure it is actioned by that member.

28. The TIO undertake research into the incidence of and circumstances whereby complaints are discontinued.

29. Introduce an SMS call back scheme to assist low-income consumers to contact the TIO.

30. Services assisting clients to access the TIO, including community legal centres, financial counseling services and other community groups, must be adequately funded for this work.

31. A full and proper review of the costing of level 1 complaints be undertaken with consideration on how to provide better financial incentives to improve IDR.

32. TIO should engage in general education campaigns with their members.

33. The TIO invite consumer advocates to identify and provide information to the TIO about systemic issues.

34. Service providers found in breach of their obligations be publicly named.

35. Additional and meaningful information about complaints be made publicly available at more regular intervals. ACCAN would like to see the following metrics:

• The number of matters escalated due to supplier non-response
• The percentage of cases successfully resolved disaggregated by TIO member
• The average time it takes a complaint to be resolved disaggregated by TIO member
• The likelihood of a customer having a complaint (complaint per 10,000 customers) disaggregated by TIO member

36. The Ombudsmen, with advice from the TIO Council should publish a public information policy to guide the availability of data to the public.

37. Members be charged per complaint issue.

38. A licensing process be introduced for all carriage service providers.

39. ACMA be given the powers to revoke a license for a breach of a TIO determination and/or any other serious breach.

40. The TIO be subject to a public independent review every five years.

41. A supplier should be named in a determination.

42. It should be mandatory for the TIO to refer non-compliance of a determination to ACMA.

43. A simpler, more cost effective, and quicker enforcement and penalty system needs to be put in place, where relevant breaches can be taken to the Federal Magistrates Court for determination.

44. Stronger consumer protections, including standards and changes in legislation should be made.

45. A standard regarding complaints handling be introduced.

46. The TIO or regulator be given the power to audit supplies’ internal complaint handling schemes to see if they are compliant with the relevant Australian Standard on complaints handling.

47. The TIO should be able to award consumers a financial sum payable by the supplier where the supplier has acted in breach of its consumer protection obligations.

.

Koepenick redux?

With my article on fake honours and fake military veterans in mind I was delighted to see today's AFP item on Yupeng Deng, arraigned by the Los Angeles County Deputy District Attorney on charges relating to his "recruitment" into a fictive US army unit.

Deng reportedly persuaded over 100 Chinese immigrants to pay him for entry to the "US Army/Military Special Forces Reserve unit", an entity of which he was "Supreme Commander" and that had no official basis. He apparently promised his "recruits" that membership of the unit would eventually lead to US citizenship. The troops paid him between US$300 and US$400 to join, with an additional $120 pa renewal. Higher payments were reflected in higher ranks.

Deng established an office that reportedly resembled a legitimate military recruiting office. The recruits received kit acquired from army surplus stores. They also scored identification cards that resembled military ID's. Deng appears to have claimed that the cards could be useful in dealing with traffic tickets.

All good units have to march and otherwise strut their stuff, as Wilhelm Voigt (1849-1922) - aka the Captain From Köpenick - recognised.

Voigt, an ex-crim, leveraged Prussian deference to anyone in a uniform, acquired a second-hand army captain's suit in 1906 and blithely commandeered a detachment of grenadiers. Marching to Köpenick town hall, he arrested the burgomaster (who was sent in a car to the police station at the Neue Wache) and after examining the municipal accounts departed with 4,000 marks in two large sacks. That sum was equivalent to around $300,000.

Alas, Voigt didn't take a fast train to Hamburg, buy a one-way ticket to Mexico and enjoy an ocean cruise. He was arrested five days after his exploit, having got drunk on the proceeds. The troops went unpunished because they had "unquestioningly obeyed the command of an officer". Apart from the famous play by Carl Zuckmayer, the case is unpacked in Death in the Tiergarten: Murder and Criminal Justice in the Kaiser’s Berlin (Cambridge: Harvard University Press 2004) by Benjamin Hett and in Beyond the prison gates: punishment and welfare in Germany, 1850-1933 (Chapel Hill: University of North Carolina Press 2008) by Warren Rosenblum.

Hett's incisive 'The 'Captain of Köpenick' and the Transformation of German Criminal Justice' in 36(1) Central European History (2003) 1-43 comments that -

Zuckmayer's famous play and the 1956 film directed by Helmut Käutner and starring Heinz Rühmann, attached an indelible set of meanings to Voigt's escapade. On the one hand, Voigt was the man whose wit and daring demonstrated how Imperial Germany was the paradise of militarism, a country in which anyone in a uniform would be obeyed without question, however outrageous his orders. On the other hand, Voigt had a long record of being treated harshly or with callous bureaucratic disregard by Prussia's judicial and police authorities; thus his life story seemed to embody a withering critique of these civilian institutions as well. Eventually, for many Germans (and others) the militarism critique merged with the criminal justice critique. The moral of Voigt's story was simply that Imperial Germany was the classic land of arrogant authority, and of unhappy yet submissive subjects.

Deng's unit marched too but as yet his story isn't being constructed as a withering critique of US militarism and justice. The unit is described as having been "a well-known presence in the San Gabriel Valley", appearing in city parades in Monterey Park over the past two years and taking a tour of the USS Midway Museum in San Diego.

Investigation by the FBI of the scam began in 2008, following reports by Californian police that members were producing "counterfeit military ID's at traffic stops" and incidents where the 'troops' appeared at genuine Army offices to pay renewal fees rather than paying Deng directly.

A lawyer for Deng argued that the unit was established up to help Chinese immigrants assimilate into US society. Deng is in custody, apparently having been unable to raise US$500,000 bail, and faces 13 felony counts (including including obtaining money, labor or property by false pretenses, and providing false documents).

Hett, in discussing Voigt, comments that -

The real significance of the Wilhelm Voigt story is virtually the opposite of that which it has usually been given by literary writers and historians. Where most accounts have taken Voigt's treatment at the hands of police and judicial authorities to be emblematic of the failure of the Prussian/German state to meet the challenges of a modern society, I will argue that his case demonstrates the remarkable transformation that was underway in the German criminal justice system in the last years before the First World War. This transformation took place on several levels: it was both a transformation in ideas and in daily practice. Intellectually, the first years of the twentieth century witnessed a great ferment in German criminal law, as in other branches of German legal thought. The prevailing positivism of thinkers like the Leipzig professor (and judge) Karl Binding (who wrote that he "found his pride" in the complete dependence of his work on the study of statutory enactments, and dismissed as "dilettantism" the inroads that criminologists, sociologists, and practitioners of forensic psychology were making in the criminal law) was giving way to a more flexible conception of the sources of law (above all among the thinkers of the "free law movement") and a greater concern with the social ends of law (primarily among the "sociological school" spearheaded by the Berlin professor Franz von Liszt). At the level of practice, Germany's criminal courts were taking account of a wide range of new kinds of evidence - evidence of social conditions as well as of the medical and psychological histories of defendants - with the consequence that they were more likely to acquit defendants altogether, and to hand out less severe punishments to those they convicted. The prestige and power of the professionals who tended to balance the courtroom scales against the prosecution - above all defense lawyers and medical expert witnesses - increased steadily.

Prussian ministerial authorities, far from being arrogant and isolated, were deeply concerned about public opinion and were willing to take remarkable steps to cater to it. The reason for their concern had to do with another striking quality of late-Wilhelmian Germany, which historians have often missed or underplayed: the pluralism and vibrancy of its public sphere. Voigt's case shows how a right-left "culture war" of the sort familiar to Americans in the last decade had broken out over a range of linked issues - the usages of the legal system, the role of women in society and the implications of gender for the law, the permissible boundaries of public discussion of sex and violence, and of press access to trials and public officials. Behind these discussions, tectonic shifts were going on in the political, social, and cultural landscapes of the German Empire. In every sense the Weimar Republic was being born: the anger and defensiveness of the political and cultural Right, the ascendancy of the democratic parties, the growth of mass culture - all of these things that we associate with the 1920s were well in evidence by 1906.

... There is no basis here for retrospective complacency (and certainly few contemporary observers of the Wilhelmian courts were complacent about their operations). The intellectual assault on the canons of legal positivism, the incorporation of social and medical science in criminal law (with a concomitant downplaying of individual responsibility), and the rush of public opinion into the sanctuaries of ministerial offices and courtrooms, were Janus-faced developments, bringing with them possibilities of new kinds of authoritarianism as well as new kinds of emancipation. The humble figure of Wilhelm Voigt and his remarkable performance at the Köpenick town hall will help us explore the complex ramifications of these social, legal, and intellectual forces.

Social Sciences

The treatment of prisoners - including indifference to offences committed by the incarcerated on other prisoners - is one indicator of justice in a legal system.

I have been reading 'Sexual health and behaviour of Queensland prisoners: With Queensland and New South Wales comparisons' (Sydney: National Drug Research Institute 2010) [PDF ]by Tony Butler, Juliet Richters, Lorraine Yap, Cerissa Papanastasiou, Alun Richards, Karen Schneider, Luke Grant, Anthony Smith and Basil Donovan, the 2008 'Sexual health and behaviour of New South Wales prisoners' [PDF] by Richters, Butler, Yap, Kristie Kirkwood, Grant, Smith, Schneider & Donovan and 'The Decline in Sexual Assaults in Men's Prisons in New South Wales: A Systems Approach' by Yap, Richters, Butler, Schneider, Grant and Donovan in (2011) Journal of Interpersonal Violence  1–25 after encountering R v Guingab [2011] VSC 110 and headlines in today's newspapers that 'Prison safer from rape than outside'.

The SMH article for example reported -

Inmates are safer from rape and sexual assault inside prison than they are on the outside, a new survey has found.

About 60% of women and 13% of men in prison reported sexual coercion - including rape - before their imprisonment, say the researchers from the University of NSW.

Once behind bars, only 2.5% of male prisoners and 3.9% of female prisoners said they had been forced or frightened into unwanted sexual activity.

"Our evidence suggests that these people are at less risk of sexual coercion and rape inside prison than outside,"

The JIV article was more nuanced, with the authors acknowledging that -

Despite the numerous studies and reports, there is little agreement among researchers on a definition of sexual assault and rape while incarcerated. Time frames when sexual assaults occurred, furthermore, are nonspecific; we do not know if sexual assaults occurred recently or in the distant past (eg 20 years ago) during which prison policies may have changed significantly. Few of these studies, if any, have focused on prisons reporting a decline in sexual assaults.

They referred to David Heilpern's 1998 study, that reported 26% of 300 male inmates aged between 18 and 25 years in NSW prisons had been sexually assaulted, with 50% subjected to other assaults. Accounts from his interviews on prisoners' rape experiences "indicated collusion and indifference by custodial staff to rapes". Unsurprisingly -

readers were left with the impression that male sexual violence was endemic in New South Wales’ prisons. He attributed the sexual violence to “perpetrators seeking power through sexual violence, the acquiescence of prison authorities, overcrowding, and the prior sexual experiences of perpetrators” (p. 223). Among his many recommendations, he suggested that prisoners aged 18 to 25 years should be housed in small groups of separately managed units. Prison officers should also be trained on sexual assaults with prisoners who had been sexually assaulted and failure to report sexual assaults should not go unpunished. Furthermore, the state should assume legal responsibility for the safety of prisoners.

Heilpern's claims were consistent with other studies, including research noted in this blog (eg here).

Yap, Richters et al offer some comfort in their 2011 article, claiming that -

Since Heilpern’s study, several population-based surveys of prisoners have shown that nonconsensual sex between male inmates in NSW prisons has steadily declined. In particular, the NSW Inmate Health Surveys, a highly comparative data source, report a decrease in male sexual assaults from 1.5% in 1996 to 0.1% in 2009 (p < .0001) and among inmates between 18 and 25 years from 2.7% in 1996 to 0% in 2009 (p < .003), much lower than Heilpern’s research.

As part of the 2007 Sexual Health and Attitudes of Australian Prisoners survey (Richters et al., 2008), we carried out a number of in-depth interviews with prisoners and ex-prisoners. The qualitative study provides additional evidence that there has been a “real” decline in the number of sexual assaults in NSW prisons after the mid-1990s and gives more detailed explanations for this decline.

Ulysses and Deleuze

From Ron Rosenbaum's put-down of Ulysses -

on the whole Ulysses is due for more than a little irreverence. People still speak of it in hushed tones, perhaps hoping nobody will ask them about the parts they skipped over.

So you do think Ulysses is overrated?

In general, yes. Loved Joyce's Portrait of the Artist, but didn't need it blown up to Death-Star size and overinfused with deadly portentousness. Ulysses is an overwrought, overwritten epic of gratingly obvious, self-congratulatory, show-off erudition that, with its overstuffed symbolism and leaden attempts at humor, is bearable only by terminal graduate students who demand we validate the time they've wasted reading it.

I do wonder what he'd say about 'Law, Space, Bodies: The Emergence of Spatial Justice' by Andreas Philippopoulos-Mihalopoulos in Deleuze and Law (Edinburgh: Edinburgh University Press, 2011) edited by L. de Sutter -

This is a text that brings together spatiality and legality in the work of Deleuze and Guattari, thus allowing for a renewed understanding of what is Spatial Law and Spatial Justice to enter the debate. Employing Deleuze and Deleuze and Guattari’s writings, I read diagrammatically a novel by Michel Tournier called Vendredi (Friday). The novel is a rewriting of Robinson meets Friday but through a spatial/legal lens. My reading enhances this perspective while extracting a few fundamental practices of law’s spatiality, namely its immanent, posthuman and material qualities. The island is part of the assemblage between the various bodies (human and otherwise) that move from logos to nomos, namely from a rational distribution to nomadic movement. While Robinson succumbs to Friday’s animalistic spatiality, the whole island bows to the emergence of what Deleuze has called "a second island." This is what I take to be the space of emergence of spatial justice, a concept immanent to the law yet only appearing at its very edge.

The author goes on to state that -

The second island is the body of Deleuzian jurisprudence. If the latter is that which “acts as the event or abstract machine of the legal assemblage”, then spatial justice is simply another name for Deleuzian jurisprudence. Deleuze’s engagement with the concept of jurisprudence was sporadic and incidental, and in many ways leaves an open space for concept construction. My aim therefore is to add to the existing subsequent literature on jurisprudence by emphasising two things that I believe emanate directly from Deleuzian thought: spatiality and immanence. Spatiality in spatial justice is as much a statement of something painfully obvious (can there ever be a justice that is not spatially emplaced? an abstract, universal justice that transcends the concrete?), as it is a political gesture that aims at moving law away from its traditional historicisation and into the open, fragmented, material space of geography, of earth and geophilosophy, of violent falls and dirty fingernails. My other aim is to emphasise the immanence of justice, namely its self-enclosed generation that is, however, necessarily based on a connection of withdrawal with the law. Spatial justice is immanent to law, flowing along the legal orientation towards justice, yet overcoded by the withdrawal of the law.

Spatial justice is jurisprudence that retains the law within, in withdrawal and perennial movement, like the empty square of the chessboard. As Deleuze writes, “there is no structure without the empty square, which makes everything function.” The second island orients everything on account of its empty space, a space of withdrawal within. And Deleuze carries on by urging us to keep moving the square: “today’s task is to make the empty square circulate”. The space of withdrawal is always there but needs to be constantly flowing, for otherwise justice becomes frozen in the regime, a pillar amidst other pillars. Just as justice cannot be disengaged from the law in its paradoxical flow of the logic and the nomic, in the same way there is no telling how much of either needs to be withdrawn for the empty square to follow the lines of escape and keep on moving. Withdrawal is a revolutionary, dangerous move that takes risks by allowing spaces to discover their immanent legality.

The second island is the product of a Deleuzian encounter, pulsating with its infinitely repeated singularity. It is the space of here into which the law throws itself, the luminosity of "erected" spaces, the singularity of "erected" times: “each day stands separate and erect, proudly affirming its own intrinsic value ... They so resemble each other as to be superimposed in my memory, so that I seem to be ceaselessly reliving anew the same day. The space of justice is the space of “second origin”, which is “more essential than the first, since it gives us the law of repetition, the law of the series” that repeats to the ‘nth’ degree the encounter every time anew. The second island, the space in which spatial justice emerges, is then the desert island par excellence. It is uncharted, unreachable except through the conjuncture of a shipwreck, closed, “a sacred island”. But to retain this sacredness, the island must remain desert yet open to shipwrecks and people arriving: "far from compromising it, humans bring the desertedness to its perfection and highest point. Humans pierce the island, make it a "holey space" that "communicates with smooth space and striated space", they set the ground on which the 'perfection and highest point of desertedness', namely of the world without law, might eventually emerge.

Deafnicity

The provocative 'Toward a Theory of Deaf Ethnos: Deafnicity ≈ D/deaf (Hómaemon • Homóglosson • Homóthreskon)' by Richard Eckert in 15(4) Journal of Deaf Studies & Deaf Education (2010) 1-17 asks -

Should ethnicity be used to interpret relations between the Deaf community and the hearing people? Recent scholarship questioning the merits of Deaf ethnicity suggests a need to reexamine the use of ethnicity when describing Deaf identity and culture. This article provides an overview of key contributions to race and ethnicity discourse in the 20th century, identifies epistemological and ontological errors to avoid, suggests adherence to the classical Greek concept of ethnos as an alternative to ethnie, and argues for the continuing significance of Deaf ethnicity. Specifically, I propose that Deaf ethnicity is a triadic relational nexus that approximates communities of origin, language, and religion. This is expressed as Deafnicity ≈ D/deaf (Hómaemon • Homóglosson • Homóthreskon).

Deafnicity offers a promising alternative for examining relations between Deaf and hearing communities, exploring variance between nationalized Deaf communities, and expanding our understanding of audism

Eckert goes on to comment that -

What is ethnicity? Sociologists have been defining ethnicity for almost a century. Ethnicity is an expression of self and community (Weber 1922/1978). Ethnicity is a negotiated product of dialectical tensions between internal self-identification and external ascriptions, who we say we are in a set of relations with who others say we are (Nagel 1996). It is an emergent process (Yancey, Ericksen & Juliani 1976) and situational (Gans 1979). Ethnicity is a strategic and adaptive process of reorganizing identity boundaries and the cultural content within those boundaries (Nagel & Snipp 1993). Ethnicity is a rationale choice (Nagel 1996). Should the concept of Deaf ethnicity be used to describe the set of relations between the Deaf community and those who are hearing?1

In this article, I retrace the social scientific understanding of ethnicity. I attempt to expose some of the misunderstandings that accompany recent discussions about Deaf ethnicity. I call for a return to how the ancient Greeks applied the concept of ethnos. In ancient Greece, ethnos included a wide range of concepts involving identity boundaries (Smith 1986, p21). I argue that if Deaf ethnos is viewed as a triadic relational nexus of Hómaemon (community of common origin), Homóglosson (linguistic community), Homóthreskon (community of religion), it has greater explanatory power than the modern concept ethnie (collective name, myth of common descent, a shared history, a shared culture, an association with a specific territory, and a sense of solidarity; Smith 1986, pp22–31).

Stokoe’s (1960/2005) recognition of sign language, Woodward’s (1972), distinguishing cultural constructions (Deaf) from medical circumstance (deaf), and Humphries’ (1977) coinage of the term “audism” imply or infer Deaf ethnicity. However, recognition of the ethnic processes of constructing, maintaining, and reorganizing Deaf identity boundaries is relatively recent (Erting 1978; Markowicz & Woodward 1982). Lane, Pillard, & Hedberg (in press), Lane (2005), and Eckert (2005) argue the merits of Deaf ethnicity using modified versions of Smith’s (1986) dimensions of ethnie. Lane et al (in press) and Lane (2005) rely on historical comparative data to demonstrate the presence of all six dimensions in the Deaf community. Eckert (2005) hypothesized a nationalized concept of Deaf American ethnicity, or what he called Deafnicity, as a counter hegemonic response to audism.

Lane’s (2005) and Eckert’s (2005) usage of Smith’s (1986) dimensions of ethnie illuminates a few problems with the model when applied to the Deaf community. First, Smith (p27) deemphasizes the relevance of language. Smith writes "Examples could be multiplied to show that language, long held to be the main, if not sole, mark of ethnicity, is often irrelevant or divisive in the sense of ethnic community" (p27). Sign language is a critical component of Deaf identity and culture. Lane et al (in press), Lane (2005), and Eckert (2005) do emphasize the importance of sign language in their modifications to ethnie.

Second, the Smith model of ethnie lacks precision when defining the myth of common descent. On the one hand, there is a “self-same ancestor” (Smith 1986, p24). On the other hand, the sense of tribal belonging is something based on “common family ties, rather than any sense of genetic and blood ties” (Smith 1986, p24). Although Smith does not appear to treat ethnie as biologically determined, there is a need to amend the ethnie model in a way that clearly identifies kinship ties as an effort to organize human interdependence through rules of relatedness (see Macintyre 1993). Fictive kinship, as understood by anthropologists, provides an avenue to go beyond the idea of Deaf identity being one generation thick as argued by Davis (2008). Eckert (2005, pp108–110) asked Deaf respondents to compare meeting a Deaf person for the first time with meeting a hearing person for the first time. Respondents described Deaf people as being those they felt instantly connected to and could be their real self around. The lack of connection to hearing people was also highlighted. One respondent (Jim) said, “It is different because the Deaf person feels like family” (Eckert 2005, p110).8 The Deaf self-same ancestor, sometimes signed as “DEAF-SAME,” is not a matter of genetics.

The Smith model of ethnie also fails to account for what Nagel (2003) calls the sexualized boundaries of ethnicity or ethnosexual frontiers. These “are the borderlands on either side of ethnic divides; they skirt the edges of ethnic communities; they constitute symbolic and physical sensual spaces where sexual imaginings and sexual contact occur between members of different racial, ethnic, and national groups” (Nagel 2003, p14). Nagel (2003) defines ethnosexuality as “the intersection between ethnicity and sexuality and the ways in which each defines and depends on the other for its meaning and power” (p10). Padden and Humphries (2005) describe a set of power relations that includes sexual domination of the Deaf community in America from as far back as the early 1800s. Padden and Humphries (2005, ch 1) description of “silenced bodies” illuminates the need to consider the ethnosexualized boundaries of Deaf identity and culture. Stereotypes used to describe the Deaf population offer some of the more extreme examples of sexualizing Deaf identity and culture. The Peoples Common Sense Medical Advisor published in 1890 provides a list of causes for the "paralysis of the auditory nerve" (Pierce 1890, p681). The list includes masturbation, excessive sexual excitement, and debauchery (Pierce 1890, p681).

Smith’s ethnie does not account for sexualized stereotypes nor does it include important cultural aspects of selective mating habits, sexualized stereotypes, abuse, and exploitation. Lane et al. (in press) includes a wealth of information about Deaf ancestry that implies selective mating habits. Eckert (2005) provides narrative descriptions told by Deaf previously married to hearing individuals. However, neither Eckert (2005) nor Lane et al. (in press) provide an analysis that includes ethnosexual settlers, sojourners, adventurers, invaders (Nagel 2003) in the context of the sexualized relations between the dominant hearing majority and the Deaf community that Padden and Humphries (2005) highlight.

Finally, Smith’s idea of ethnie conflates a number of Greek definitions of ethnos. The synthesis of different types of ethnos is a useful starting point. Though, without language, a clear distinction of kinship, or recognition of the sexualized borders of ethnicity, the explanatory powers of the Smith model are inadequate when addressing the continuing significance of Deaf ethnicity in contemporary society. As such, one is compelled to ask if the classical Greek concept of ethnos has greater explanatory powers than Smith’s (1986) model of ethnie. Does ethnos include language? Does ethnos clarify the role of fictive kinship? Does it account for the sexualized borders of ethnicity?

Critics of Deaf ethnicity include Davis (2008), Sabatello (2005) and Tucker (2004). Davis’ objections to the idea of Deaf ethnicity appear to be with both the broader concept of ethnicity and the narrower dimensions of ethnie. Davis (2008) seeks to replace Deaf ethnicity with what he calls postdeafness. For example, Davis (2008) asks "Why use, outdated, outmoded, and potentially dangerous categories of ethnicity, minority status, nationhood (including 'world' and 'culture'), when one might do better to use the category of ‘one-generation’ identities to redefine the nature of social identity?" (p323).

Sabatello (2005) argues "The Deaf community is arguably a linguistic minority based on fluency in sign language that is different from the majority language, or alternatively, an ethnic minority based predominantly on common history and culture" (p1036). Sabatello asserts a need to differentiate "between those who are legally recognized as ethnic, linguistic, and religious communities, and other sorts of 'life-styles cleavages, social movements and voluntary associations' notwithstanding their internal claims for shared linguistic and cultural systems" (pp1048–1049). The arguments of Sabatello highlight the importance of establishing the Deaf community as an ethnic community.

Tucker (2004) argues that Deaf identity, in the context of a deviant medical minority, needs to be rehabilitated and conform to the cultural hegemonic goals of the dominant hearing majority. Tucker argues "deaf people with cochlear implants, particularly children, have a wealth of opportunities and potential life experiences available to them" (p186). Tucker goes on to say, "To deny such opportunities based on theories of segregation is indeed illogical” (p186). Tucker's argument is framed first by identifying Deaf people as second-class citizens using a Washington Post article as proof of second-class citizenship and then claiming that cochlear implant technology will 'alleviate the ramifications of deafness" (p186).

Sabatello (2005) and Tucker (2004) each suggest that the Deaf community is attempting to impose a Deaf centric view on families with Deaf children and in the process deny Deaf children the ability to successfully assimilate into the dominant hearing majority. Sabatello argues "Thus, rejecting cochlear implants for a deaf child, as advocated by members of the Deaf community, coerces the Deaf culture on the child" (p1033).

Davis, Sabatello, and Tucker each express major misunderstandings of Deaf identity and culture. As such, demystification of ethnicity must accompany discussion of whether Deaf Americans are an ethnic population. The larger problem with the assertions of Davis (2008) and Sabatello (2005) is their pretension of recognizing Deaf human identity while perpetuating negative stereotypes that challenge that humanity. For Tucker, assimilation provides human identity. This differs greatly from those advocating Deaf ethnicity who do not view assimilation as a prerequisite of human identity.

Data Retention

The Senate Environment & Communications References Committee has released its 128 page report [PDF] on The adequacy of protections for the privacy of Australians online.

The report's recommendations are -

Recommendation 1

The committee recommends that the government consider and respond to the recommendations in the Cyberspace Law & Policy Centre's report: Communications privacy complaints: In search of the right path, and recommendations from the Australian Communications Consumer Action Network arising from that report.

Recommendation 2

The committee recommends that the Australian Privacy Commissioner's complaint-handling role under paragraph 21(1)(ab) of the Privacy Act be expanded to more effectively address complaints about the misuse of privacy consent forms in the online context.

The committee further recommends that the Office of the Privacy Commissioner examine the issue of consent in the online context and develop guidelines on the appropriate use of privacy consent forms for online services.

Recommendation 3

The committee recommends that the small business exemptions should be amended to ensure that small businesses which hold substantial quantities of personal information, or which transfer personal information offshore are subject to the requirements of the Privacy Act 1988.

To achieve this end, the committee urges the Australian Privacy Commissioner to undertake a review of those categories of small business with significant personal data holdings, and to make recommendations to government about expanding the categories of small business operators prescribed in regulations as subject to the Privacy Act 1988.

The committee further recommends that the second tranche of reforms to the Privacy Act 1988 amend the Act to provide that all Australian organisations which transfer personal information overseas, including small businesses, must ensure that the information will be protected in a manner at least equivalent to the protections provided under Australia's privacy framework.

Recommendation 4

The Committee recommends that the OPC in consultation with web browser developers, ISPs and the advertising industry, should, in accordance with proposed amendments to the Privacy Act, develop and impose a code which includes a 'Do Not Track' model following consultation with stakeholders.

Recommendation 5

The committee recommends that item 19(3)(g)(ii) of the exposure draft of amendments to the Privacy Act 1988 be amended to provide that an organisation has an Australian link if it collects information from Australia, thereby ensuring that information collected from Australia in the online context is protected by the Privacy Act 1988.

Recommendation 6

The committee recommends that the government amend the Privacy Act 1988 to require all Australian organisations that transfer personal information offshore are fully accountable for protecting the privacy of that information.

The committee further recommends that the government consider the enforceability of these provisions and, if necessary, strengthen the powers of the Australian Privacy Commissioner to enforce offshore data transfer provisions.

Recommendation 7

The committee recommends that the Australian government continue to work internationally, and particularly within our region, to develop strong privacy protections for Australians in the online context.

Recommendation 8

The committee recommends that the government accept the ALRC's recommendation to legislate a cause of action for serious invasion of privacy.

Recommendation 9

The committee recommends that before pursuing any mandatory data retention proposal, the government must:

• undertake an extensive analysis of the costs, benefits and risks of such a scheme;

• justify the collection and retention of personal data by demonstrating the necessity of that data to law enforcement activities;

• quantify and justify the expense to Internet Service Providers of data collection and storage by demonstrating the utility of the data retained to law enforcement;

• assure Australians that data retained under any such scheme will be subject to appropriate accountability and monitoring mechanisms, and will be stored securely; and

• consult with a range of stakeholders.

Recommendation is likely to be the most contentious, given the Government's commitment to acceding to the Council of Europe Convention on Cybercrime (here), which was noted earlier this year.