Gellner

From Stefan Collini's LRB review of Ernest Gellner: An Intellectual Biography (London: Verso 2010) by John Hall -

When Ernest Gellner was teaching at the Central European University in Prague in 1995, the last year of his life, he cultivated informal social relations with the graduate students there. One student “confessed to unease when Gellner sat down to watch television with him – saying it was as if Max Weber had dropped by”. It requires only a little familiarity with Weber’s vastly ambitious oeuvre and notoriously austere personality to imagine why that might be an unsettling experience, as well as an unlikely one. Curiously, Perry Anderson had, three or four years earlier, been trying to imagine Weber in front of a television set, as a way of making a comparison between Gellner’s complacent-seeming endorsement of post-1945 mass affluence and Weber’s more agonised reflections on Europe after 1918: “It is difficult to imagine Weber, relaxed before a television set, greeting the festivities of the time as a new Belle Epoque”.

Info Principles

The Australian Information Commissioner has launched the Commonwealth Government Principles on Open Public Sector Information, critiqued in my Justice Connections paper 'Opening The Door To Justice: Questions About The National Information Regime' next week.

The Principles provide a framework for government information management in Australia, setting out the "central values" of open public sector information ... that it be freely available, easily discoverable, understandable, machine-readable
and reusable.

The Principles were developed by the Office of the Australian Information Commissioner through a process of public consultation, drawing on "considerable work in Australia and overseas into best practice government information management".

The promo for the paper is as follows -

The paper poses questions about the national information regime as a foundation for access to justice. It aims to provoke discussion rather than to provide a report on work in progress, to offer definitive answers regarding legal and policy conundrums or to offer a formal analysis of a legal cause célèbre or exemplary text.

It's a right, Jim, but not as we know it

Australia is an 'information society' and an 'information state', ie one in which public administration and private life is predicated on ready access to information. We do not, however, have a comprehensive right to information. Interpretation of international agreements is contentious. A right to information, as distinct from an implied right of political communication, is not enshrined in the national constitution. The patchwork of Commonwealth, state and territory statute and case law regarding crown copyright, defamation, archives, discrimination, statutory deposit, freedom of information, privacy, confidentiality, suppression orders and national security is confusing and in places increasingly threadbare. That affects our access to justice.

Not a NIP in the air

What is the national information regime? Three decades ago Barry Jones and the technocrats dreamed of a national information policy that would refashion much of the patchwork. That NIP vision disappeared more quickly than Bernard Finnigan. National information policy under the current Government tacitly comprises only a 'Government 2.0' commitment for 'information sharing' (in practice e-publishing by agencies and e-transactions that obviate the need for agency premises outside the CBD) and a revamp of the Freedom of Information Act 1982 (Cth). From a justice perspective we can usefully ask questions about information provided by government and to government, with the conference paper highlighting some tensions in that broader information regime.

All that is solid melts into air

The FOI reforms remove application fees, substantially reduce exemptions and emphasise information as a resource for sharing in the absence of reasons for restriction. They are a beginning, rather than a triumphant outcome that – like the demise of Osama Bin Laden – allows us to declare victory and scuttle off home. They are a beginning because they fail to address the 'post-it note problem' and because they were not accompanied by strengthening of the Archives Act 1983 (Cth).

Archival legislation is significant for justice both as the basis for righting past wrongs, difficult if evidence is no longer extant, and as an indicator of how agencies misbehave. The past is a lens for the future. Enforcement of penalties under the Act resembles being gummed by an arthritic sheep, not a prospect to deter embattled agencies such as Immigration, Defence or ASIO. Disregard of the Act is encouraged by recent closure of National Archives regional offices, a closure than inhibits access to a range of information relevant to justice rather than merely history dissertations.

For the FOI Act to be meaningful it must be underpinned by a coherent, comprehensive and properly policed national records management system that addresses concerns regarding use of post-its, unrecorded meetings (an unwanted gift from cybervigilante Julian Assange) and electronic networks – as in one major ACT agency – that are not backed-up and are purged when positions are vacated. Irrespective of application or processing fees, you cannot access something that no longer exists.

Changing the postal rule

The Commonwealth Ombudsman, well-intentioned but sadly underfed, is as much an information mechanism as it is a mediation body. It functions by requesting information from agencies in response to complaints by members of the public. It relies on shaming, has no power to overturn decisions and in practice little scope for active investigation, instead acting as a glorified post box for transmission of messages between officials and citizens.

In giving effect to Lionel Murphy's vision of a bureaucracy and legislature that is truly accountable to the people we need to update that information system, for example by giving the Ombudsman the resources, statutory ability and willingness to actively investigate what is behind the grey walls of silence. In essence, it should adopt the ethos of the Australian National Audit Office rather than Australia Post.

The judicial voice

The conference is fortunate to be chaired by former High Court Justice Michael Kirby, a jurist who might best be characterized as the great articulator rather than as the great dissenter. Justice in a liberal democratic society is founded on community awareness, understanding and appreciation of the law and of the justice system. A recurrent criticism is that people do not understand legal processes, are ill-equipped to represent themselves in an environment where Commonwealth funding for legal aid amounts to around twenty cents per capita each week, and indeed may not be able to find the law.

From an information perspective one challenge is for the Commonwealth to commit meaningful and timely funding to AustLII, the only publicly-accessible (albeit user-unfriendly) database covering the Australian jurisdictions. Another challenge, taken up by individuals rather than by the judicature as a whole, is to articulate the law in ways that non-specialists can both understand and value. We might be skeptical about the Hora report's recommendation for a 'Media Judge' (a recommendation at odds with the SA Government's 'law & order' rhetoric but the machinery of justice can engage with the community without relying on fads such as Twitter, Facebook and other counterparts of the Big Brother house.

The many deaths of old media

Australia's identification – and, more importantly, understanding – of justice has historically been determined by the mass media, whether through accounts of Doc Evatt and Tegan Wagner or through comments by Keysar Trad, Derryn Hinch and Alan Jones. Fantasies about an informed, comprehensive and ethical 'citizen media' are just that. Disintermediation through demise of traditional media as a result of lower standards after capture by private equity should concern anyone with a commitment to justice, rather than merely journalists or MBAs. If your understanding of law comes from the press, what happens when the SMH channels Hinch?

If you can't see it, it's not there

Hyperbole in the Gruen Report and other documents regarding e-Government or the miraculous National Broadband Network should not obscure the reality of persistent digital divides exacerbated by the closure of government offices and the abandonment of print. A decade after the SOCOG accessibility dispute many people – blind, deaf, poor, with language or motor difficulties – still have difficulty going online. Even the digerati balk at over-long URLs, eg of a mere 247 characters, an identifier than inhibits access to information and thus to justice and that is found in the Attorney-General’s site. Mere mortals surrender when site-specific search engines display unintelligible results or links point to vanished pages.

Asleep in a warm bath of self-esteem?

In an era where the appearance of managerialism is a surrogate for substantive policy and where a political party's credibility is determined by the enthusiasm with which it is seen to eschew tax increases and worship at the shrine of the balanced budget it is unsurprising that governments have slashed funding of law reform and research bodies such as the Australian Law Reform Commission and Australian Institute of Criminology. Those reductions, and policy incapacity within the bureaucracy due to three decades of outsourcing and the erosion of independence within the bureaucracy, mean that more than ever parliament, government agencies and the wider community are in need of independent expert advice.

A key feature of Australia's national information regime is that academia is licensed to speak truth to power, offering insights, cautions, criticism and a sounding board for notions that may or may not come to fruition. The rise of the 'enterprise university' (in which 'value' is a function of flawed bibliometrics and the success with which researchers pursue grants and where the growth of research superstructure has overshadowed resources for substantive research) has seen academia increasingly talk only to itself in a 21st century version of Benda's trahison des clercs.

That abdication of responsibility for meaningful and independent critique is evident in the paucity of submissions by law academics to inquiries by the ALRC, parliamentary committees and bodies such as the Australian Media & Communications Authority and Australian Health Ministers Council. If we are concerned with justice academics need to be committed – and seen to be committed – in contributing information to government rather than talking only to ourselves and acting as passive (albeit often grizzling) recipients of information on high.

the vanity of the security analyst

"unattractive figures whose writings betray their intellectual vanity" ... or merely the desire for attention?

From 'Protecting Sensitive Information: The Virtue of Self-Restraint' [PDF] by Dallas Boyd in (2011) 7 Homeland Security Affairs -

Changes in societal mores are probably more responsible than any technological development for the increased traffic in sensitive information. Irresponsible disclosures frequently occur without any social penalty for those who make them. This represents a dramatic shift from earlier generations, when cooperation with the government on security matters was more uniform. In one well-known example, American physicists refrained from publishing results on nuclear fission experiments during World War II for fear of assisting the Nazi bomb program. Even among provocateurs, there is precedent for self-restraint. Daniel Ellsberg’s name is synonymous with exposing government secrets, having leaked the Pentagon Papers. Yet Ellsberg conscientiously withheld four volumes regarding sensitive negotiations out of concern that they would disrupt the peace process. Such discretion can still be found, although it is uncommon enough to be conspicuous. In their analysis of radiological terrorism, for example, James Acton et al. stopped short of revealing a radiation immersion scenario that they claimed would “readily kill several hundreds and disrupt a large city.” As for the specifics of the plot, they wrote, “We will not describe it.” In an earlier episode, the government sought a voluntary embargo of the details of a 1984 incident in which religious cultists poisoned 751 people in Oregon with Salmonella. Fearing the attack would inspire copycats, officials asked the Journal of the American Medical Association to refrain from describing the method for twelve years; the editors agreed.

As an alternative to formal restrictions on communication, professional societies and influential figures should promote voluntary self-censorship as a civic duty. As this practice is already accepted among many scientists, it may be transferrable to members of other professions. As part of this effort, formal channels should be established in which citizens can alert the government to vulnerabilities and other sensitive information without exposing it to a wide audience. Concurrent with this campaign should be the stigmatization of those who recklessly disseminate sensitive information. This censure would be aided by the fact that many such people are unattractive figures whose writings betray their intellectual vanity. The public should be quick to furnish the opprobrium that presently escapes these individuals.

The need to influence the behavior of scientists is particularly acute. The Corson panel, while expressing little enthusiasm for restrictions on scientific communication, noted the existence of a category of research that merited "limited restrictions short of classification" on a largely voluntary basis. This category represented a "gray area" lying between research that can be discussed openly and that which the government has good cause to classify. While the need for voluntary self-censorship among scientists is already well recognized, there is still some resistance to the idea that scientific communication should ever be constrained. To wit, one of the researchers involved in the Australian mousepox experiment defended their publication on the grounds that "Anything scientifically interesting should be published." An effort must be made to temper this attitude and make clear that the pursuit of scientific knowledge does not absolve researchers of their social responsibility.

An understandable objection to self-censorship arises when one considers that huge quantities of classified information are being maliciously leaked under the auspices of WikiLeaks. It might seem curious to criticize well-meaning professionals for discussing unclassified information that is far less damaging than the genuine secrets being revealed. Yet the nihilism of this small group is not the standard against which one’s actions should be measured. Nor does it release conscientious citizens from their duty not to endanger the nation.

All security analysts are exempt from vanity, the professional imperative for self-promotion etc?

ALRC Discovery Report

The Australian Law Reform Commission has released its 380 page report on Managing Discovery: Discovery of Documents in Federal Courts (ALRC Report 115).

The ALRC indicates that its recommendations -

are underpinned by eight principles or policy aims: the five 'Access to Justice Principles' proposed by the Access to Justice Taskforce, and three additional reform principles reflective of the particular context of this Inquiry:

1) Accessibility — justice initiatives should reduce the net complexity of the justice system.

2) Appropriateness — the justice system should be structured to create incentives to encourage people to resolve disputes at the most appropriate level.

3) Equity — the justice system should be fair and accessible for all, including those facing financial and other disadvantage and access should not be dependent on the capacity to afford private legal representation.

4) Efficiency — the justice system should deliver outcomes in the most efficient way possible, noting that the greatest efficiency can often be achieved without resorting to a formal dispute resolution process, including through preventing disputes; and the costs of formal dispute resolution and legal assistance mechanisms — to Government and to the user — should be proportionate to the issues in dispute.

5) Effectiveness — the interaction of the various elements of the justice system should be designed to deliver the best outcomes for users; and all elements of the justice system should be directed towards the prevention and resolution of disputes, delivering fair and appropriate outcomes, and maintaining and supporting the rule of law.

6) Proportionality — the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

7) Consistency — the civil justice system should be consistent in the application of laws and in practice.

8) Certainty — the civil justice system should provide as much clarity of expectations, both of parties and of the court, as the nature of particular cases allows.

The report offers "27 policy recommendations for improving the practical operation and effectiveness of discovery of documents in federal courts". The ALRC coments that -

The focus of the recommendations is principally on the Federal Court. The recommendations target a key theme in submissions and consultations that, to the extent that there is a problem in relation to discovery of documents in federal courts, it lies principally in the area of practice. Any uncertainty as to what is expected of parties and any inconsistency in case management by judges increases, the potential for litigation to become protracted and costs to balloon.

[The] recommendations are based on a model that is ‘facilitative’, emphasising the role of the judge in facilitating the resolution of the matter through active case management to offset what some argue is the problem of the adversarial nature of proceedings—or overly adversarial practice. Embracing a facilitative model continues the pattern of civil procedure reform identified in the ALRC’s Managing Justice inquiry and reinforced by trends since — for example through the introduction of s 37M of the Federal Court of Australia Act.

The ALRC considers that the most effective way to facilitate the resolution of disputes in the Federal Court is through robust case management. Such a model preserves the discretion of the judge while, at the same time, introducing greater clarity of expectations in relation to discovery. A key focus of the recommendations is on reinforcing the flexibility that Federal Court judges have in the case management of litigation so that, for example, any discovery regime can be tailored to suit the particular issues in each case. To achieve this, the ALRC makes a number of recommendations for reform of the Federal Court of Australia Act and the Federal Court Rules (Cth), supported by a suite of practice notes.

Practice notes, issued by the Chief Justice, are flexible and responsive tools for guiding practice in the Federal Court. Practice notes can set out clearly what the Court expects of practitioners, through which greater consistency of outcome may be achieved. Practice notes for participants are complemented by judicial education and training directed towards reinforcing judicial understanding of powers and encouraging their more consistent application. Recommendations for reform focus on the educative function of practice notes, to bring to the attention of parties—and to encourage the use of—the various ways in which discovery may be managed effectively and efficiently in proceedings. This provides guidance on the best practices of the parties, which may also be a valuable resource for judges in scrutinising applications and submissions. These reforms are also supported by recommendations for legislative amendments — to governing Acts and court rules — that provide statutory powers to facilitate the implementation of other reforms and to drive cultural change.

Vandiemenian Crims

The Tasmania Law Reform Institute has release a 108 page report on the Consolidation of Arrest Laws in Tasmania [PDF].

The report identifies powers of arrest currently available in Tasmania and the arrest laws that frame such powers, arguing that a proliferation of arrest powers in the state results in arrest laws that are unnecessarily complex, inconsistent and uncertain.

The report recommends consolidation, clarification and simplification of the powers. In particular it calls for the powers to be consolidated into one statute with elimination of the distinction between arrestable and non-arrestable offences, the introduction of protective provisions for vulnerable persons and changes regarding the use of force, entry to private premises, use of arrest warrants and private citizens’ power of arrest.

Specific recommendations are -

R1 That arrest powers contained in Tasmanian statutes be consolidated into one statute.

R2 That the consolidation of arrest laws should take the form of a new Act to be known as the Arrest Act.

R3 That the arrest powers in the Family Violence Act 2004 (Tas), s106L(1)(a) the Justices Act 1959 (Tas), s 55(2E) of the Police Offences Act 1935 (Tas), the Parliamentary Privilege Act 1858 (Tas) and Supreme Court Rules 2000 (Tas) be located in the proposed Arrest Act as exceptions to the general consolidating provisions in that Act.

R4 That the arrest powers contained in the Debtors Act 1870 (Tas) be reviewed with a view to their possible repeal.

R5 That -

1) The law of arrest relating to powers of arrest be reformed to eliminate the distinction between arrestable and non-arrestable offences;
2) The broadened power to arrest be circumscribed by:

(a) the statutorily specified requirement that an arrest is to be made only as a matter of last resort; and
b) provision that an arrest must not be made unless the police officer believes on reasonable grounds that specified limiting circumstances exist. In this regard the Institute recommends that the approach in Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) s 99 be adopted in preference to other models in operation in Australia;

3) The legislation establish a system of safeguards such as those provided in s 637(2) and (3) of the Police Powers & Responsibilities Act 2000 (Qld) to apply to a police officer’s exercise of the power to effect an arrest in any given case;
4) That this reform be accompanied by reform of the law relating to alternatives to arrest.

R6 That a consolidated general power of arrest without warrant be set down in the Arrest Act and that it provide that -

1) A police officer has a power to arrest without warrant a person whom he or she believes on reasonable grounds to have committed or be committing an offence.
2) This power should be subject to statutorily specified limiting circumstances as suggested in R5.

R7 That the proposed Arrest Act should include protective provisions for vulnerable persons. A vulnerable person should be defined as a person who falls into one or more of the following categories:

• Young persons;
• Persons who have impaired intellectual functioning;
• Persons who have impaired physical functioning;
• Aborigines and Torres Strait Islanders;
• Persons who are of non-English speaking background.

The protective provisions for vulnerable people should stipulate:

1) That the arresting officer must record in writing the reason for effecting an arrest rather than employing an alternative to arrest;
2) That a vulnerable person must be informed at the time of the arrest of his or her right to communicate with a friend, relative, parent/guardian, responsible person, legal practitioner and/or interpreter (relevant person) as is appropriate;
3) That when a vulnerable person is arrested there should be an obligation to inform a relevant person of the arrest:

(a) When a young person is arrested, there should be an obligation upon the police to inform a parent/guardian, responsible person or other relevant person of the arrest.
(b) When an Aborigine or Torres Strait Islander is arrested the Aboriginal Legal Service should be notified via the on-call Field Officer in accordance with Tasmania Police requirements (Aboriginal Strategic Plan).
(c) If a person with impaired intellectual or physical functioning is arrested, there should be an obligation upon police to notify a relevant person or responsible person as appropriate.

4) That the police must assist an arrestee who is a vulnerable person in communicating with a relevant person and the relevant person should be present during any interview.
5) That when a person from a non-English speaking background is arrested the police officer conducting the investigation must defer any questioning until an interpreter is present.

R8 That laws concerning how an arrest should be executed be located in legislation consolidating powers of arrest.

R9 That the consolidating legislation provide that -

1) It is the duty of a person arresting another, whether with or without warrant, to inform the other person, at the time of the arrest, of the process or warrant under which he or she is acting, or of the offence for which the other person is being arrested.
2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
3) This subsection does not apply to the arrest of the other person if -

(a) the condition or duties of the person making the arrest make it impracticable to perform this duty; or (b) the other person’s actions or condition make it impracticable for the person making the arrest to perform this duty.

(4) A failure to fulfill either of the aforesaid duties -

(a) Will make the arrest or the execution of the process or warrant unlawful; but (b) Shall not of itself deprive the person executing the process or warrant or making the arrest, or his or her assistants, of protection from criminal responsibility, but shall be relevant to the question whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.

R10 That the present Tasmanian Criminal Code provisions concerning the use of force in relation to arrests (ss 26, 30, 31 and 32) be repealed and reformed to enact the principle of proportionality as follows -

(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2) Without limiting the operation of subsection (1), a person, in the course of arresting another person for an offence, may cause such damage to property that is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(3) Without limiting the operation of subsections (1) and (2), a police officer must not, in the course of arresting a person for an offence:

(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or
(b) if the person is attempting to escape arrest by fleeing – do such a thing unless: (i) the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and (ii) the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

R11 That the recently legislated s 26A of the Criminal Code Act 1924 (Tas) be relocated to legislation consolidating the powers of arrest. The expression ‘premises’ should be defined as including any land, building, structure, motor vehicle, vessel or aircraft. The power of entry should be subject to additional safeguards such as those contained in the Police Powers & Responsibilities Act 2000 (Qld), the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) and Crimes Act 1914 (Cth) including -

1) A requirement that the police must have reasonable grounds for believing that the person to be arrested is on the premises;
2) A requirement that the police supply their details to the occupants and remain on the premises to effect the arrest for only such time as is reasonably necessary in the circumstances; and
3) That the police not exercise their powers of entry between the hours of 9.00 pm and 6.00 am unless they have reasonable grounds to believe that it would not be practicable to arrest the person at another time or it is necessary to do so in order to prevent the concealment, loss or destruction of evidence.

R12 That the proposed Arrest Act contain a codified model for the issuing and execution of arrest warrants in a framework similar to that which applies currently to search warrants. That the Act specify the criteria for the issue of the warrant, consistent with those provided for the making of an arrest without a warrant. Further, that the Act require that –

1) Information be provided on oath or affidavit stating the reasons for seeking the arrest warrant;
2) The judicial officer satisfy him or herself that the stated reasons establish reasonable grounds for issuing the warrant, or that there are other such grounds; and
3) The judicial officer endorses the affidavit stating the reasons on which she or he relies to issue the warrant.

R13 That the power of arrest pursuant to an arrest warrant currently set down in ss 21(2), (3) and (4) of the Criminal Code be relocated to the legislation consolidating powers of arrest.

R14 That all arrest powers without warrant of authorised persons be included in the Act consolidating arrest powers. Those powers should be made exercisable on the same grounds as those specified for police (along with the same restrictions) but be limited to the specified offences for which the authorised persons currently have the power to arrest. The offences and relevant authorised persons should be set out in a schedule to the consolidating Act.

R15 That government departments and agencies that empower authorised persons to arrest under legislation that they administer, begin to record and disclose publicly data on the number of arrests executed by their authorised officers and the outcome of those arrests.

R16 That private citizens’ powers of arrest be consolidated in legislation consolidating arrest powers. That private citizens’ powers of arrest be limited to persons found offending where the offence involves –

1) Substantial injury to the person of another;
2) Serious danger of such injury;
3) Loss of any property of the person so arresting, or of any person by whom he or she is authorised to effect the arrest; or loss of any property of which the person arresting has charge;
4) Serious injury to any property;
5) Injury to the property of a public authority; or
6) Escape from some person reasonably believed to have authority to arrest the escapee.

R17 That the duty of private citizens to make an arrest be incorporated into legislation consolidating arrest powers but be limited to the situation where a police officer calls upon them to provide assistance in the making of an arrest.

R18 That the powers of arrest granted to private citizens under the Bail Act 1994 (Tas), Second-hand Dealers & Pawnbrokers Act 1994 (Tas) and ss 27(10) and (11) of the Criminal Code Act 1924 (Tas) be repealed and incorporated into the new consolidating legislation.

R19 To promote further alternatives to arrest and to enhance arrest as a measure of last resort, a statutory regime, similar to that contained in the Police Powers & Responsibilities Act 2000 (Qld), ss 382-390, should be enacted enabling the police to issue on-the-spot attendance notices.

Superduper

Reading the Neuberger Committee report on Super-Injunctions, Anonymised Injunctions and Open Justice in the UK (aka the Super-injunctions Report) and the associated media conference transcript [PDF].

The Committee on Super-Injunctions was established in April 2010 to "examine well-publicised issues of concern to Parliament, the judiciary, the media, and the wider public", following RJW & SJW v The Guardian newspaper & Person or Persons Unknown (Claim no. HQ09) and Terry v Persons Unknown [2010] 1 FCR 659, in particular the perceived growth in the use and application of super-injunctions and the increasing frequency with which proceedings were being anonymised. Concerns had been raised with the British Parliament's Culture, Media & Sport Select Committee on Press Standards, Privacy & Libel and by the Lord Chancellor and Ministry of Justice officials with the senior judiciary.

The Committee's terms of reference were:

• To examine issues of practice and procedure concerning the use of interim injunctions, including super-injunctions and anonymised proceedings, and their impact on the principles of open justice bearing in mind section 12 of the Human Rights Act 1998;

• To provide a clear definition of the term super-injunction; and

• Where appropriate, to make proposals for reform, and particularly to make recommendations for any changes to the Civil Procedure Rules and Practice Directions.

The Committee's 112 page report makes recommendations on -

• The practice and procedure governing interim injunctions which restrict freedom of speech, including super-injunctions and anonymised injunctions;

• The use of specialist judges to determine applications for super-injunctions;

• Super-injunctions and the reporting of Parliamentary proceedings;

• The collection of data about super-injunctions, and anonymised injunctions, and the communication of information concerning the same to Parliament and the public.

Key findings in the report [PDF] are -

Open justice is, and has long been, a fundamental constitutional principle. It requires that all aspects of court proceedings should be open to, and freely discussed by, the public, and in particular, the media, and only permits oflimited exceptions, either those which are created by statute, or those which involve judicial discretion, to the extent that they are strictly necessary in the interests of justice.

Although confidential information has long been protected, a general right to respect for privacy was not recognised until 2000. Concerns have been expressed in some quarters about the way in which the law of privacy and confidentiality has developed since the introduction of the Human Rights Act 1998, particularly in interim injunction cases, given Parliament’s intention in passing section 12 of that Act, which was particularly concerned with maintaining a balance between privacy and freedom of expression. These concerns must be addressed either on a case-by-case basis by the courts or, at a more general level by Parliament.

A super-injunction is an interim injunction which restrains a person from:

(i) publishing information which concerns the applicant and is said to be confidential or private; and,
(ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

There was justifiable concern, when the Committee was formed, that super-injunctions were being applied for and granted far too readily. This concern has now been addressed. Since January 2010, so far as the Committee is aware, two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. Super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

There has also been an increase in the number of cases which are anonymised. The law on anonymisation has been clarified in two recent Court of Appeal decisions. Confusion has arisen as many cases with privacy or anonymity aspects have been wrongly labelled as super-injunctions.

When anonymised orders are made, the court has and should wherever practicable provide a reasoned judgment for its decision.

The Committee has produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Committee does not consider specific guidance on expedited appeals is necessary as such guidance already exists. It should however be revised and updated. It also recommends that training for judges who hear applications for injunctions which may impact on the principles of freedom of expression should continue.

The Ministry of Justice, with the assistance of HMCTS, should collect data about super-injunctions and anonymised injunctions, in relation to all privacy orders which derogate from the principles of freedom of expression.It is anticipated that the Ministry will implement this recommendation as soon as practicable.

The court has never asserted, and could not properly assert, power or authority to restrict Parliamentary debate or proceedings. The relationship between Parliament and the courts is predicated on mutual respect and confidence. The chapters in the Report which address questions relating to Parliamentary privilege and process have been disclosed to the Speaker of the House of Commons and to the Lord Speaker in the House of Lords. It is intended that any issues arising in the context of claims for injunctive relief on the basis of privacy will be discussed further with them,

Media reporting of what was said in Parliament is only protected if it is a summary of Hansard published in good faith. The extent, if any, to which other media reports of Parliamentary proceedings in breach of a court order would be protected is unclear.

Gene Patents

From the cogent Australian Parliamentary Library Bills Digest 107 of 2010–11 [PDF] by Roger Beckmann & Sharon Scully on the Patent Amendment (Human Genes and Biological Materials) Bill 2010 [No. 2], which seeks to ban gene patenting in Australia -

Uncertain effect of the proposed amendments

It is stated in the Explanatory Memorandum that:

The purpose of this Bill is to advance medical and scientific research and the diagnosis, treatment and cure of human illness and disease by enabling doctors, clinicians and medical and scientific researchers to gain free and unfettered access to biological materials, however made, that are identical or substantially identical to such materials as they exist in nature.

It is then explained that the legislation has been expanded to ensure that 'biological materials', '[including DNA, RNA, proteins, cells and fluids]', and 'including their components and derivatives, whether isolated or purified or not and however made, which are identical or substantially identical to such materials as they exist in nature' are expressly excluded from patentability to ensure that natural phenomena are not patentable inventions and thus subject to restricted use.

The application of the proposed amendments is uncertain and is likely to significantly expand the scope of subsection 18(2) of the Patents Act with respect to what would not be patentable inventions under the Act.

Should genes be excluded from patenting?

In the various inquiries mentioned above, those arguing that genes should not be patentable base their argument on several grounds. These grounds include that:

• the commercial exploitation of gene patents has the potential to:

– adversely affect matters such as incentives to conduct genetic and biotechnological research; as well as costs of and access to genetic testing, and
– reduce competition, and

• genes are discoveries not inventions and, consequently, are not patentable.

On the other hand, those arguing that genes should be patentable argue that:

• prohibiting gene patents may result in:

– creating a situation where Australia breaches its international law obligations – creating a situation incompatible with global obligations to harmonise patent laws
– adverse impacts on domestic and international investment in Australian genetic and biomedical research and development

• the distinction between discoveries and inventions is not clear cut, and
• there is insufficient empirical evidence to prove that gene patents adversely affect matters such as costs and access to genetic testing

The authors conclude -

The amendments proposed in the Senate Bill go much further than the longstanding debate as to whether to prohibit gene patents.

The proposal to exclude particular subject matter from the Patents Act would effectively extend to all naturally occurring biological materials per se, not simply human genes and human biological materials as the title of the Senate Bill suggests. As mentioned in several submissions, this would have the potential to affect a wider cross-section of biotechnological industries other than simply the medical industry.

Comments made by major interest groups in relation to the Senate Bill reflect evidence already provided at the various inquiries on the impacts of human gene patents, and in particular, those conducted by the ALRC and the Community Affairs References Committee discussed earlier. ....

Parliament may wish to keep in mind the arguments and counter-arguments for and against the Senate Bill as previously outlined. These are summarised as follows.

Arguments supporting the Senate Bill

Arguments for supporting the Senate Bill include:

• genes are discoveries not inventions — consequently, should not be patentable
• gene patents hinder genetic and biological research, and
• gene patents hinder access to genetic and biomedical testing and treatments.

Counter-arguments

Counter-arguments not supporting the Senate Bill include:

• under the current patent system in Australia, genetic and biological materials in their natural form are not patentable
• the existence of a patent over genetic or biological material does not constitute 'ownership' of such material
• concerns relating to gene patents, and the subject matter of patents generally, have already been extensively reviewed with a similar conclusion — there is insufficient empirical evidence of adverse effects resulting from gene patents to warrant prohibiting the patenting of genes and biological materials
• at this stage in any case, the nature and scope of patent applications relating to human genes have changed over time with changes in examination practices and, in the words of the ALRC "the time for taking this approach to the patenting of products and materials has long since passed"
• the proposed amendments go much further than simply excluding human genetic materials — the proposed wording could apply to all biological materials, thereby potentially affecting a broad range of industries, such as biotechnological and pharmaceutical industries; agricultural and animal protection industries; and bio-prospecting
• the proposed amendments may result in unintended adverse consequences to that broad range of industries, such as making it more difficult to patent novel genetically modified organisms in areas unconnected with human genes (for example agricultural plants)
• prohibiting the patenting of genes and biological materials may represent a significant departure from international practice with respect to genetic inventions in many developed countries and may adversely affect investment in the Australian biotechnology industry, and
• alternative methods — such as Crown use and compulsory licensing provisions, as well as a research use exemption and competition laws — have been proposed to address concerns regarding any monopoly arising from the existence of gene patents; and the development of and access to genetic and biomedical testing.

Some background to the Bill is here.