Plain paper health regulation

Reading 'Implications of WTO Law for Plain Packaging of Tobacco Products' a forthcoming chapter by Tania Voon & Andrew Mitchell in Public Health & Plain Packaging of Cigarettes: Legal Issues (Edward Elgar 2012) edited by Mitchell, Voon & Jonathan Liberman.

The authors note that -

The Australian federal government recently released an exposure draft of legislation to introduce a scheme for the mandatory 'plain packaging' of cigarettes and other tobacco products from 2012. The scheme will prohibit the use of brand logos, graphics and colors on tobacco products and packaging manufactured or sold in Australia or imported into Australia. All packages will be the same dark olive brown color, largely taken up by graphic and textual health warnings, with brand names appearing in the same font and limited size. As Australia is set to become the first country in the world to implement such a scheme, its outcome will establish a critical precedent for both tobacco control interests and tobacco companies. Unsurprisingly, the scheme is already coming under attack through extensive advertising campaigns funded by tobacco companies and allegations of domestic and international legal violations, some of which have reached the level of formal complaints in bilateral and multilateral fora. This chapter critically analyses claims that plain packaging as envisaged by Australia would breach various agreements of the World Trade Organization. We explain in particular why the scheme is consistent with the TRIPS Agreement, the TBT Agreement, and the GATT 1994, and not covered by the SPS Agreement.

They conclude that -

Our analysis ... demonstrates that Australia’s plain packaging scheme does not breach Australia’s obligations under any WTO agreement. In particular, it does not breach: TRIPS Articles 2.1 or 15.4 because those provisions concern trademark registration, whereas plain packaging affects trademark use; TRIPS Article 17 because that provision concerns exceptions to the rights conferred by trademarks, which — as indicated in TRIPS Article 16 — are negative rights to prevent use by others rather than positive rights to use trademarks; or TRIPS Article 20 because even if the scheme encumbers trademarks with special requirements, that encumbrance is justifiable and indeed justified by relevant evidence including the public health objectives of the Australian government, as borne out by the WHO FCTC and its agreed implementing guidelines. The scheme is not covered by the SPS Agreement and is consistent with the TBT Agreement because of its limited impact on trade and its contribution to the legitimate objective of protecting public health. Finally, it does not breach the GATT 1994 because it is non-discriminatory, with a limited impact on international trade and a sound public health basis.

With a bilateral investment dispute on Australia’s plain packaging initiative already underway, and a domestic constitutional claim widely anticipated, tobacco companies appear determined to make an example of the Australian government and its bold challenge to their products. They might well succeed in convincing a WTO Member to bring a WTO dispute against Australia. However, for the reasons we have explained, we believe this legal challenge would be a desperate last gasp.

Theory is an opiate of the academics

From 'Nihilists! One Less Effort if You Would be Nihilists' by John Cunningham in Mute -

Since its inception a couple of years ago Letters Journal - a self-described ‘Anti-Political Communist Journal' - has advocated the joys of doing nothing while retaining an impetus towards the destruction of capitalism. However, part of the puzzle of Letters' critique is that this insurrectionist pleasure in negation exists in a tension with a pessimistic awareness of the constraints of contemporary capitalism. Imagine a strongly constructed box with a collection of weak, struggling human beings inside trying to break out. They actually built the box and now need to escape. However, even if they succeed there's just another tightly constructed box that constricts their possibility of movement, and so on. All the myriad inflections of capitalist social relations - alienation, work based exploitation, affective dysfunction - comprise a series of interlocking constraints. Rather than positing any 'outside' to this via acts of 'creative resistance', Letters' anti-politics posits resistance as being necessarily suspended within these constraints.

Melancholic claustrophobia, pessimism and nihilism all mark Letters Journal's terminal reflections on the limitations of anti-capitalist praxis and critique. This isn't, however, a journal that advocates any form of compliance with the cramped space of contemporary capitalism or a retreat into philosophical resignation. Letters retains a consistent tone of critical negation alongside a cheerful embrace of a nihilistic uncertainty in the face of capitalism's refusal to collapse into its own dead labour. This nihilism is jokingly referred to in a promo for Letters IV - Every Beggar is Odysseus that's posted on YouTube. Alfonso, a time travelling 1977 Autonomist, incoherently berates and threatens Letters while encased in a steel helmet and accompanied by a strangulated guitar solo soundtrack. Simultaneously, some masked-up guy holds up slogans such as ‘Nihilists, one less effort if you would be nihilists' and ‘Do Nothing'. This mobilisation of pessimism retains a playfulness, and Letters Journal's nihilism has nothing to do with punk cliché or the corpse-painted faces of black metal. It's more an expression of the absence of an exit from capitalism that Letters Journal glimpses in the present as well as a way of puncturing the balloon of self-importance attached to anti-capitalist endeavours and activist exertions. As Letters IV notes, ‘The first sin of the pro-revolutionary is to frame everything on a scale inversely proportionate to her significance. As she becomes more insignificant, her vision grows in grandeur.'

Letters Journal can be a difficult read for ‘pro-revolutionaries' or those in favour of revolution but without the agency to implement it whether Marxist, anarchist or whatever. The phrase ‘pro-revolutionary' was coined by the two-member 'Monsieur Dupont' collective, and both Le Garcon and Frére Dupont are in issue four. M. Dupont was partially formed out of a desire to mock the pretensions of revolutionary organisations with a similar membership ratio. Their tactic was to inject some ludic, nihilist realism into the anti-capitalist milieu by stepping out of the activist injunction to do something and instead 'Do nothing'. This wasn't necessarily an invitation to sit around and watch Bonsai trees grow but rather a critique of activist 'urgency', its 'moral apparatus', and the 'reproduction of authoritarian and capitalist forms within this (anti-capitalist) political milieu'[iii]. Both this, and their emphasis upon the stringent limitations imposed by economic structure upon the potential agency of anti-capitalist milieus, continue to be unerringly present within Letters. I'm sympathetic to this in that it identifies unacknowledged apparatuses - organisational and discursive structures that produce subjectivity - that are capable of deforming anti-capitalist politics. Political subjects ('activist' or 'militant'), organisations and even language often become invisible constraints clumsily locked in a cycle of self-valorisation. Such skepticism remains at the core of Letters Journal's anti-politics, but within its pages anti-political communism has developed into a much more speculative heresy.

And from 'The Afterlives of Queer Theory' by Michael O'Rourke in (2011) 1(2) continent 102  -

Lauren Berlant and Michael Warner's essay "What does Queer Theory Teach us about X?" a guest column written for the PMLA in 1995 was already talking about queer theory in ways which we might now recognize as resonating with the term "post-continental". The first thing we might notice about their essay is a refusal to succumb to the need to pin things down, to say what exactly queer theory is and does and to be entirely clear about what precisely it is that queer theorists do. Berlant and Warner are equally reluctant to accord a specific time to queer. For them, queer is radically anticipatory; it holds out a promise, a utopian aspiration, and occupies a time out-of-joint. Perhaps the appeal and the lasting power of queer theory then (and now) is that it is non-delimitable as a field and non-locatable in terms of a chrononormative temporal schema. Part of, perhaps all of, the attraction of queer theory is its very undefinability, its provisionality, its openness, and its not-yet-here-ness. Queer occupies a strange temporality; it is always, like Derrida's monstrous arrivant, to-come, whether from the past or from the future. And it has a ghostly formlessness too. Berlant and Warner write that, in their view, "it is not useful to consider queer theory a thing, especially one dignified by capital letters. We wonder whether queer commentary might not more accurately describe the things linked by the rubric, most of which are not theory". It cannot, they insist, "be assimilated to a single discourse, let alone a propositional program". I share their desire “not to define, purify, puncture, sanitize, or otherwise entail [pin a tail on to] the emerging queer commentary” or to fix a "seal of approval or disapproval" on anyone’s claims to queerness as I begin to think about the many and various afterlives of queer theory, if there is such a thing. Furthermore, I agree with them that we ought to prevent the reduction of queer theory to a speciality or a metatheory and that we ought to fight vigorously to "frustrate the already audible assertions that queer theory has only academic — which is to say, dead — politics".

And, as we shall see shortly, there is a certain discourse which propagates the idea that queer theory (and not just its politics) is always already dead, buried, over, finished. For me, much of queer thinking’s allure is its openness, its promissory nature, and that much of what goes under its name has been "radically anticipatory, trying to bring a [queer] world into being". Because of this very provisionality, and an attendant welcomeness to its own revision, any attempt to "summarize it now will be violently partial". But we might see some value in the violently partial accounts, the short-lived promiscuous encounters, cruising impersonal intimacies, I will be trying to stage here in this article as I ruminate upon the post-continental afterlives of queer theory.

If, for Berlant and Warner, "Queer Theory is not the theory of anything in particular, and has no precise bibliographic shape" then I would like to suggest — with a willful disingenuousness since after all Queer Theory [dignified by capitals] does have a working bibliographical and anthologizable shape which one can easily constitute — that queer theory is not solely the theory of nothing in particular. We might, a little hyperbolically to be sure, say that queer theory is (and always has been) the theory of everything. However, if we turn queer theory into a capital-t Theory (as we are often wont to do [and I cannot exclude myself from this urge]) we risk forgetting the differences between the various figures associated with it and the variegated contexts in which they work (as we shall soon see). As Berlant and Warner caution, "Queer commentary takes on varied shapes, risks, ambitions, and ambivalences in various contexts" and if we try to pin the tail on the donkey by imagining a context (theory) in which queer has "a stable referential content and pragmatic force" then we are in danger of forgetting the "multiple localities" of queer theory and practice. No one corpus of work (Judith Butler's for example) or no one particular project should be made to stand in for the whole movement, or what we might more provisionally—and more openly, perhaps a possible alternative to Berlant and Warner’s queer commentary — call the "culture" of queer theory (small-q, small-t).

Constitutional theory is perhaps also an opiate of the enthusiastic but uninformed, such as exponents of the 'freemen' or 'sovereign citizen'  movement. It's apparently appeared in Borleis v Wacol Correctional Centre [2011] QSC 232, with the Queensland Supreme Court stating

Mr Borleis, who was brought to Court from the prison today, was allowed to make some submissions himself. He submitted that the Magistrate had no authority to deal with him. He seemed to distinguish between himself as a man in two different capacities and suggested that the law did not bind him in one of those two capacities. This rather esoteric and spiritual argument does not find any reflection in any provision of our law. 

He also asserted that there is no entitlement under our law for anyone to be kept in custody prior to their conviction for an offence. That, again, is not the state of affairs under our law. A Magistrate is empowered to remand accused persons in custody until their trial. It seems clear that that is what has happened in this case. Appeals to Magna Carta and the Bill of Rights do not alter that situation. Nothing in either of those pieces of legislation is capable of affecting the operation of subsequent legislation which confers on Magistrates the power to remand in custody.

In Bauskis v Thomson [2011] NSWSC 27 the Court stated

Mr Bauskis ... submits that as a citizen of Australia he has an inalienable right to have the entirety of his dispute, including all procedural aspects of it, heard and determined by a jury and that anything less would be an infringement of his fundamental rights and civil liberties. 

He further submits that the law of God is the overriding legal system which gives rise to that inalienable right. As well, he submits that he is entitled to rely on the Magna Carta , and the fact that the people of Australia, who as a whole have sovereignty, are together the ultimate authority to make "imposed" laws. He submits that he has a legal right derived from the legal system which I have just outlined, which cannot be disrupted by any law, including a statute, to join such people, including the police officers, as he wishes, to his suit. He further submits that it is not open to the Crown to move for the relief which it does, and that it is open to this Court to grant the relief. 

Regrettably, Mr Bauskis's submissions are incorrect and must be rejected. Although he adheres to them with great passion and has no doubt researched them with great care, they are not submissions which I can accept. 

Procedures in this Court are governed by a variety of statutes and rules made in accordance with those statutes. Section 56 of the Civil Procedure Act 2005 provides that the overriding purpose of the Act and the rules of the Court, is " to facilitate the just, quick and cheap resolution of the real issues in the proceedings ". 

Section 56 obliges the Court to give effect to the overriding purpose when it exercises any power given to it by the Act or by the Uniform Civil Procedures Rules 2005. Sub-section (3) imposes a similar obligation on the parties to civil proceedings. It reads: "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court." 

The application of the Crown to remove the four named police officers relies upon s 9B of the Law Reform (Vicarious Liability) Act 1983. That Act prohibits a person, such as Mr Bauskis, from making a claim in tort directly against an individual police officer unless permitted by the provisions of Part 4 of that Act.

Naming

A nice snippet by Gillian Darley in the LRB Blog -

French law requires that a purebred dog or cat – that is, an animal belonging to one of the breeds listed in the Livre des origines français or the Livre officiel des origins felines – be given a name beginning with a prescribed letter of the alphabet, determined by the year of its birth, rather like the way British car registration plates used to be organised.

The alphabetised system began in 1926, with Z omitted. In 1972 the Commission Nationale d’Amélioration Génétique further regularised the system, and K, Q, W, X and Y were also taken out of contention. The advice is very detailed. You can, if you wish, give your pet another name for everyday use but most people seem to stick to just one. ....

If you can’t think of a name, you can ask your vet for a list of fifty or so; online, of course, there are thousands to choose from. One of the suggestions this year is Gillian – such an unattractive name, and so singularly impossible to pronounce in any language other than English. Others include Guerlain, Givenchy, Gloop, Granola and Gen Gis Khan. But if you’d like to call your pet Kubla Khan, King Kong or Kevin you can always move to Belgium, where the Livre des origines Saint-Hubert features K as the chosen letter for 2011.

The French law appears to be Art.276-5 of the Code Rural (Loi 99-5 of 6 January 1999).

On Hold

The Australian Communications & Media Authority (ACMA), the national telecommunications regulator that's generally perceived as a little bit too friendly with the entities it regulates, has released a 138 page report.

In Reconnecting The Customer ACMA comments (better late than never) that -

consumer complaint levels in the Australian telecommunications industry are far too high and ... poor customer care (both directly and indirectly) drives many consumers to complain. Poor performance in these areas imposes real and significant costs on consumers. It also imposes unnecessary costs on industry.

ACMA goes on to ask -

why is the quality of customer care being provided by telecommunications companies failing to meet consumers’ expectations when the services they provide generally do?

It notes that -

While it is evident that complexity, convergence and the rapid growth in both new services and demand have had a profound impact on the industry and, in turn, on consumers, these matters alone cannot entirely explain or excuse the level of consumer dissatisfaction in the sector.

Australia is not alone in dealing with these challenges — regulators and service providers in other jurisdictions are also grappling with such changes. In some overseas jurisdictions, however — where the number of services in operation is significantly higher than in Australia — the comparable number of consumer complaints is considerably smaller. This suggests that telecommunications companies in those jurisdictions may be offering a level of customer care that meets their customers’ expectations. The evidence before the inquiry suggests that in Australia they are not.

The way in which the telecommunications industry in Australia deals with its customers must change, and change immediately.

Stirring words, albeit used by ACMA in the past.

What is ACMA going to do? It's going to consider! It's heartened by -

some encouraging signs that at least some industry providers recognise that they have a problem with customer care, and have enacted certain measures and announced plans to improve their performance. These individual initiatives are hopefully a springboard for changes to occur right across the industry.

Hope springs eternal in every ACMA breast. The regulator announces (I won't be churlish and say announces proudly) that -

It is evident to the ACMA from its observer status in the Telecommunications Consumer Protection Code review that industry has committed to improving consumer outcomes in this review and the ACMA is encouraged by this.

When industry submits the revised draft TCP Code for registration, the ACMA will carefully consider those measures that are intended to improve consumer outcomes, as well as the likelihood of them being successful in immediately delivering the necessary improvements. The Authority will also consider industry’s proposals for the code against the proposals in this report for effecting lasting behavioural change.

It is apparently prepared to do more, given that "neither action by individual service providers nor enhanced code rules are of themselves likely to be sufficient to drive the necessary change to regain consumers’ trust and confidence, and to encourage competition and innovation in customer care in the Australian market". It won't however do much more. The solution to market failure is apparently -

the imposition of some regulatory buttressing of industry-initiated actions and the articulation of minimum expectations.

ACMA will focus on two key areas -

• identifying and addressing the key underlying drivers of complaints
• identifying and addressing the customer care matters that consumers rank as most important to being satisfied with the quality of service received.

That focus reflects perceptions that -

many consumers have incorrect (but not unreasonable) expectations about key features of their products. Many also have insufficient information to be able to make an informed choice that will suit their needs. By improving the information available, it is expected that one of the key drivers of complaints — the lack of clear and comparable information—will be addressed, and consumers will be able to more effectively assess and choose products that meet their needs.

It also reflects an assessment that -

consumers receiving unexpectedly high bills — colloquially known as 'bill shock', which probably causes the most consumer harm. Addressing the underlying causes of bill shock is likely to lead to significantly fewer complaints.

Attention to dispute resolution mechanism is also important -

Consumers value most highly being able to have issues resolved satisfactorily in a timely way. Many told of making requests that were not acted on; receiving inaccurate, inconsistent or incorrect advice; and being unable to rely on promises or undertakings from their service provider. Often these matters start as straightforward enquiries or requests but escalate as the matter remains unresolved.

Many consumers also find it difficult to have a complaint they have made escalated to the service provider’s formal complaints-handling processes. For most consumers, complaints-handling is simply a part of good customer care. If matters are identified
and handled formally in the first instance, it is more likely that they will be resolved satisfactorily. If not, then they are more likely to be escalated to the industry’s dispute resolution scheme, the TIO.

It is essential that complaints-handling processes meet certain benchmarks. Improving the way in which complaints are identified, handled and recorded will not only improve consumer outcomes, but help service providers to identify and address problems that cause consumers to complain. It should also significantly reduce the number of complaints escalated to the TIO.

Those revelations are hardly new and ACMA's inattention or regulatory incapacity over several years raises questions about the effectiveness of the regime.

Friends up above

The Commonwealth Ombudsman's office has released a spirited 27 page report [PDF] regarding the Ombudsman's own motion investigation into administration by the Department of Education, Employment & Workplace Relations of the controversial National School Chaplaincy Program, previously noted in this blog.

The investigation was in response to a report released by the Northern Territory Ombudsman following investigation of complaints about the program in five NT schools. The NT report identified issues with the Department's administration of the Chaplaincy Program, which the NT Ombudsman was unable to investigate due to lack of jurisdiction.

The Commonwealth Ombudsman comments that although it -

acknowledges that there is a high level of community support for the Chaplaincy Program, as evidenced by the 2,675 schools currently participating in the program, we are also aware that some sectors of the community are concerned about a program that creates demand for the services of, predominantly, religious-based groups. The merit of the underlying policy is a matter for Government and was not the subject of this investigation.

Rather, this office is interested in the Department’s administration of the Chaplaincy Program, particularly given that it generates demand for services delivered to children. Therefore the focus of this investigation was on the:

• application process
• funding agreements
• guidelines
• monitoring and acquittal of funds
• complaint handling by the Department.

The Ombudsman comments that although the Department provided some guidance in its program documentation there has been insufficient guidance by the Department regarding -

• the consultation that schools were expected to undertake as part of the application process
• key terms used within the program guidelines and code of conduct
• minimum qualification requirements
• the promotion of complaint-handling processes and escalation procedure.

The report suggests that -

although schools were involved in the application process and agreed to the conditions of the program guidelines, it would have been preferable for government schools to be a party to the funding agreement. This would ensure that the Department has direct control over how those schools manage the program. In recognition that there are currently obstacles that would prevent the Department from doing this, the Ombudsman has made recommendations that are designed to make schools more accountable to the Department for day-to-day administration of the Chaplaincy Program. The Ombudsman considers this to be important in protecting the rights of parents and children affected by the program. Regarding the Chaplaincy Program funding agreements, the investigation focused on the program in government schools, where funding agreements were entered into with a chaplaincy service provider rather than the school in most instances.

Overall, the Ombudsman has made eight recommendations about work that should be undertaken by the Department to improve its processes and guidance material. Implementation of the recommendations will improve the effective administration of the Chaplaincy Program. It is recommended that the Department have regard to the best practice principles set out in this office’s previous report Executive Schemes – 12/2009 when considering these recommendations.

In its response to the Ombudsman’s Report, the Department claims that references to the NT Ombudsman’s report are inappropriate on the basis that the alleged incidents occurred prior to the commencement of the Chaplaincy Program funding in the NT schools. Whilst acknowledging that, this office remains of the view that the NT Ombudsman’s report provided relevant context to this report, and many of the issues investigated by the NT Ombudsman were relevant to the administration of a chaplaincy program, irrespective of which government administers it.

The Ombudsman also rejects the Department’s assertion that the relatively low level of complaints received about the Chaplaincy Program to date indicates wholesale acceptance of all aspects of the program and a robust complaint handling procedure. It is the Ombudsman’s view that the Department should embrace a wider, more citizen-centric and accessible complaint handling model. Such a model should be effective in capturing complaints and concerns across the administration of the program through promotion of its Chaplaincy Program complaint procedure amongst community groups, parents, schools, chaplaincy service providers and State and Territory education authorities.

In response to the Department’s request that this office include case study examples of positive support for the Chaplaincy Program, we advise that we did not receive any approaches from members of the public that supported administration of the Program.

Importantly, the Ombudsman states -

that in view of the Department’s response to this report, and acceptance of the recommendations, that the Department provides this office with a report about its progress in the implementation of the recommendations within about three months, as the Ombudsman intends to publically comment on the Department’s implementation of the recommendations within about six months.

In bureaucratic terms that is a smack, albeit delivered by a body that relies on shaming and has no power to overturn a decision.

Principled privacy?

I've been rereading the Senate Finance & Public Administration Legislation Committee's 308 page initial report on the Exposure Drafts of Australian Privacy Amendment Legislation.

The report follows the 128 page report by the Senate Environment & Communications References Committee on The adequacy of protections for the privacy of Australians online report [PDF] noted earlier this year.

The F&PA Committee makes 29 recommendations -

R1 - that the Department of the Prime Minister & Cabinet re-assess the draft Australian Privacy Principles with a view to improving clarity through the use of simpler and more concise terms and to avoid the repetition of requirements that are substantially similar.

R2 - that reconsideration be given to the inclusion of agency specific provisions in the Australian Privacy Principles in the light of the Office of the Privacy Commissioner's suggestion that agency specific matters should, in the first instance, be dealt with in portfolio legislation.

R3 - that the Office of the Australian Information Commissioner develop guidance on the interpretation of 'personal information' as a matter of priority.

R4 - that the Office of the Australian Information Commissioner develop guidance on the meaning of 'consent' in the context of the new Privacy Act as a matter of priority.

R5 - that the Government, in consultation with the Office of the Australian Information Commissioner, give consideration to the provision of a transition period for entities to fully comply with the implementation of the new Privacy Act.

R6 - that a note be added at the end of APP 1(5) which indicates that the form of an entity's privacy policy 'as is appropriate' will usually be an online privacy policy.

R7 - that the wording of APP 2(2)(a) be reconsidered to ensure that the exception to the anonymity and pseudonymity principle cannot be applied inappropriately.

R8 - that in relation to the collection of solicited information principle (APP 3), further consideration be given to:

• whether the addition of the word 'reasonably' in the 'necessary' test weakens the principle; and
• excluding organisations from the application of the 'directly related to' test to ensure that privacy protections are not compromised.

R9 - that the term 'no longer personal information' contained in APP 4(4)(b) (ie re receiving unsolicited information) be clarified.

R10 - that the drafting of APP 7 (direct marketing) be reconsidered with the aim of improving structure and clarity to ensure that the intent of the principle is not undermined.

R11 - that the note to APP 7(1) be redrafted to better reflect the position outlined in the Government response.

R12 - that the Australian Information Commissioner develop guidance in relation to direct marketing to vulnerable people.

R13 - that the structure of APP 7(2) and APP 7(3) in relation to APP 7(3)(a)(i) be reconsidered.

R14 - that a note be added to the end of APP 8 making reference to section 20 of the new Privacy Act.

R15 - that the Department of the Prime Minister & Cabinet develop explanatory material to clarify the application of the term 'disclosure' in Australian Privacy Principle 8.

R16 - that the Office of the Australian Information Commissioner develop guidance on the types of contractual arrangements required to comply with APP 8 and that guidance be available concurrently with the new Privacy Act.

R17 - that, when the Australian Government enters into an international agreement relating to information sharing which will constitute an exception under APP 8(2)(d), the agency or the relevant minister table in the Parliament, as soon as practicable following the commencement of that agreement, a statement indicating -

• the terms under which personal information will be disclosed pursuant to the agreement; and
• the effect of the agreement on the privacy rights of individuals.

R18 - that further consideration be given to the wording of the law enforcement exception in APP 8(2)(g) to ensure that the intention of the provision is clear.

R19 - that section 19, relating to the extraterritorial application of the Act, be reconsidered to provide clarity as to the policy intent of the provision.

R20 - that the Department of the Prime Minister & Cabinet develop explanatory material in relation to the application of the accountability provisions of section 20.

R21 - that the term 'reasonably necessary' be replaced with 'necessary' in APP 9(2)(a), (b) and (f).

R22 - that the Office of the Australian Information Commissioner undertake a review of agency voluntary data-matching guidelines, including emerging issues with the use of government identifiers, and that the outcome inform further consideration of the extension of APP 9 to agencies.

R23 - that proposed APP 10(2), pertaining to the quality of personal information disclosed by an entity, be re-drafted to make clear the intended use of the term 'relevant'.

R24 - that a definition of the term 'interference' used in proposed APP 11(1)(a), pertaining the security of personal information, be provided or a note included in the legislation to explain its meaning in this context.

R25 - that the Australian Information Commissioner provide guidance on the meaning of 'destruction' in relation to personal information no longer required and the appropriate methods of destruction of that information.

R26 - that, in relation to the proposed exceptions provided for in APP 12(3)

• the Australian Information Commissioner provide guidance in relation tothe application of the 'frivolous and vexatious' exception (APP 12(3)(c));
• clarity be provided as to the stage at which the negotiations exception in APP 12(3)(e) may be invoked; and
• further consideration be given to the exception in APP 12(3)(j) in relation to commercially sensitive decisions to ensure that the rights currently provided for
in the Privacy Act 1988 are not diminished.

R27 - that a note be added to proposed APP 12(4)(a) to clarify that a reasonable period of time in which an organisation must respond to a request for access would not usually be longer than 30 days.

R28 - that APP 12(8) be amended so that it is made clear that access charges imposed by organisations should only be charged at a level reasonably necessary to recoup costs incurred by the entity.

R29 - that the decision to omit the term 'misleading' in APP 13 (correction of personal information), relating to the correction of personal information, be reconsidered.

Photo identity

Enjoying R v Melissa Nicole Carpenter [2011] ACTSC 71, both for the explication of evidence law and the snapshots of the interaction between alleged offenders and police.

The headnotes are as follows -

EVIDENCE – identification parades – refusal to take part in identification parade –requirements for effective refusal for Evidence Act 1995 ss 114 and 115 – no requirement for suspect to obtain legal advice – no requirement for suspect to be informed of all details of specific identification parade before refusal – refusal unless lawyer advises participation in identification parade is a refusal, not a conditional agreement.

EVIDENCE – picture identification evidence – digital photograph of suspect does not cease to be that photograph by being loaded onto a computer database, converted into “jpg” format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased – photograph of suspect does not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud – no requirement for photograph used in identification process to show only the features specified by the witness.

EVIDENCE – identification processes – minor change in suspect’s appearance since offence was committed does not “protect” suspect from invitation to take part in identification parade or from use of photograph in photo board process.

Advice to small female persons

Mark Twain's Advice To Small Girls -

Good little girls ought not to make mouths at their teachers for every trifling offense. This retaliation should only be resorted to under peculiarly aggravated circumstances.

If you have nothing but a rag-doll stuffed with sawdust, while one of your more fortunate little playmates has a costly China one, you should treat her with a show of kindness nevertheless. And you ought not to attempt to make a forcible swap with her unless your conscience would justify you in it, and you know you are able to do it.

You ought never to take your little brother's "chewing-gum" away from him by main force; it is better to rope him in with the promise of the first two dollars and a half you find floating down the river on a grindstone. In the artless simplicity natural to this time of life, he will regard it as a perfectly fair transaction. In all ages of the world this eminently plausible fiction has lured the obtuse infant to financial ruin and disaster.

If at any time you find it necessary to correct your brother, do not correct him with mud—never, on any account, throw mud at him, because it will spoil his clothes. It is better to scald him a little, for then you obtain desirable results. You secure his immediate attention to the lessons you are inculcating, and at the same time your hot water will have a tendency to move impurities from his person, and possibly the skin, in spots.

If your mother tells you to do a thing, it is wrong to reply that you won't. It is better and more becoming to intimate that you will do as she bids you, and then afterward act quietly in the matter according to the dictates of your best judgment.

You should ever bear in mind that it is to your kind parents that you are indebted for your food, and for the privilege of staying home from school when you let on that you are sick. Therefore you ought to respect their little prejudices, and humor their little whims, and put up with their little foibles until they get to crowding you too much.

Good little girls always show marked deference for the aged. You ought never to "sass" old people unless they "sass" you first.

Populist punitiveness?

The Victorian Sentencing Advisory Council has released the 24 page Predictors of Punitiveness: Community Views in Victoria [PDF] and 28 page Purposes of Sentencing [PDF] - two reports by Dr Karen Gelb on community views of sentencing in Victoria.

The reports draw on the Victorian component of a national survey of public attitudes to sentencing. They offer a perspective on the Sentencing Act 1991 (Vic), which identifies five purposes for which a court may impose a sentence on an adult offender -

• just punishment – to punish the offender in a way that is just in all of the circumstances;
• deterrence – to deter the offender (individual deterrence) or other people (general deterrence) from committing such offences;
• rehabilitation – to establish conditions that will enable the offender’s rehabilitation;
• denunciation – to denounce the offender’s behaviour; and
• community protection – to protect the community from the offender (typically via incapacitation in a 'correctional institution')

The first report, based on responses from 1,200 survey respondents, examines "how punitive people are". Gelb concludes that "Victorians are moderately punitive", with higher levels of punitiveness unsurprisingly being found among people -

• who feel that current sentences are too lenient
• who believe that judges should reflect public opinion when sentencing
• who feel that crime has increased
• those with lower levels of confidence in sentencing.

Punitiveness is "also higher among people whose main source of information is commercial/tabloid media, people with no tertiary education and people who describe themselves as politically conservative".

Gelb comments that -

In summary, studies of the role of demographic variables consistently find that education is the strongest predictor of punitiveness, with more highly educated people being less punitive. Results for other demographic variables have been less consistent. As a group, demographic variables collectively are fairly weak predictors of punitive attitudes.

Far stronger predictors are found in variables measuring the subjective importance of crime, or 'crime salience' (Costelloe, Chiricos and Gertz, 2009). These variables measure factors such as fear of crime, concern about crime as a social problem and crime victimisation experience. Of these, fear of crime has been consistently linked with punitiveness, as have measures of people’s perceptions of crime as increasing. Victimisation experience, on the other hand, is not a predictor of punitive attitudes. The role of the media in shaping people’s punitive attitudes is clear, with a plethora of studies in various countries showing that people whose main source of news and information is commercial or tabloid media are more punitive than are those who consume non-commercial or broadsheet media.

The first working hypothesis for this research is thus that, of the demographic variables, the strongest predictor of punitiveness will be education. The second hypothesis is the type of media people use will be a significant predictor of punitiveness. Variables measuring crime salience – perceptions of crime and worry about crime – should also predict people’s responses on the punitiveness scale. And as punitiveness may be seen as but one specific instance of a general constellation of criminal justice attitudes, it is also hypothesised that other measures of criminal justice attitudes – in particular, attitudes to the courts and sentencing – will also play a role in this study in predicting punitiveness.

The second report examines community views of the purposes of sentencing. The authors indicate that the results show respondent preferences regarding the purposes of sentencing vary according to different offence/offender combinations. The most important purpose of sentencing for young offenders and for first-time offenders is rehabilitation, while for adults and repeat offenders the most important purpose is punishment.

The Council comments that -

together, the two reports show that community views on sentencing are complex, and that giving people more information, such as specific case studies, allows more nuanced responses to survey questions.

Old Age

From Milton Glaser's 2001 AIGA talk -

One night I was sitting in my car outside Columbia University where my wife Shirley was studying Anthropology. While I was waiting I was listening to the radio and heard an interviewer ask "Now that you have reached 75 have you any advice for our audience about how to prepare for your old age?" An irritated voice said "Why is everyone asking me about old age these days?" I recognised the voice as John Cage. I am sure that many of you know who he was – the composer and philosopher who influenced people like Jasper Johns and Merce Cunningham as well as the music world in general. I knew him slightly and admired his contribution to our times. "You know, I do know how to prepare for old age" he said. "Never have a job, because if you have a job someday someone will take it away from you and then you will be unprepared for your old age. For me, it has always been the same every since the age of 12. I wake up in the morning and I try to figure out how am I going to put bread on the table today? It is the same at 75, I wake up every morning and I think how am I going to put bread on the table today? I am exceedingly well prepared for my old age" he said.

WoW

Mordantly amused, in a horrified way, by the lazy thinking among some journalists reporting this week's killings in Norway by Anders Behring Breivik. (No emo, and precious little attention, of course, for thirty or so people who died in a bus accident in China at around the same time.)

In following up last week's announcement of moves towards a national R18+ game rating in Australia people are getting excited at reports that "Norwegian police found violent games at the suspected gunman's house". Quite.

The ABC headlines one item as "Violent video game link to Norway attacks". Another ends with the stirring news that -

that the suspect, widely named as Anders Behring Breivik, was interested in hunting and computer games like World of Warcraft and Modern Warfare 2.

I'm not a gamer - irrespective of having four thumbs and the regrettable absence of a prehensile tail (useful, one friend quips, for ordering pizza and extra Red Bull) - but the 'he was into Wow' meme leaves me cold.

Breivik was apparently also 'into' one of the nastier flavours of Christianity. Few people would draw the conclusion that we should therefore put an R rating on (or seek to ban) the Bible, that marvellous collection of texts that features the immolation of innocents, child marriage, infanticide, rape and other nastiness alongside some superb poetry and insights about the meaning of life. (Exhortations about not mixing animal and vegetable fibres or avoiding the flesh of the pig - with apple sauce or otherwise - have of course been disregarded).

Presumably he also watched television. There, good people, you have it. Overindulgence in televised weather forecasts has led him to become a mass murderer. If only life was that simple, and so readily fixed.

He's reported to have quoted John Stuart Mill (although Carl Schmitt seems more apposite) and on his Facebook page - at least we were spared Lee Harvey Oswald's profile - to have described himself as a Christian and conservative interested in hunting, body building and freemasonry. His profile also listed him as single.

Using the 'WoW = predisposition to slaughter' model the answer's simple - retrospective contraception for all single male Christian narcissists who like killing things and doing the funny Freemason handshake. Oh yes, he studied at the Oslo School of Management. Haven't you noticed how MBA students have beady red eyes with the telltale hint of madness?

Cybercrime insurance

Ben Berkowitz at Reuters notes that Zurich American Insurance Co, one of Sony's insurers, has asked a New York state court to declare that it does not have to pay to defend Sony from legal claims related to a large-scale data breach noted earlier this year.

Zurich American's filing seeks a ruling that it is not required to defend or indemnify Sony against any claims "asserted in the class-action lawsuits, miscellaneous claims, or potential future actions instituted by any state attorney general." The insurer has concurrently sued units of Mitsui Sumitomo Insurance, AIG and ACE asking the court to clarify their responsibilities under various insurance policies written for Sony, apparently in an effort to secure the involvement of all Sony insurers if the Court finds that there is a duty to defend.

There has been speculation that although Sony may be able to claim property damage as a result of the data breach, Zurich American is likely to argue that the general liability insurance written for Sony was not intended to cover digital attacks and is not enforceable.

Sony noted in May this year that it was looking to its insurers to help pay for the data breach. Exposure of data is forecast to cut the group's operating profit by 14bn yen (US$178m) in the current financial year, including costs for boosting security measures. That figure does not include potential compensation of customers.

Berkowitz elsewhere comments that rates for cybersecurity insurance have declined because of competition among new entrants to the market -

A series of high-profile data breaches at companies including Sony Corp and Citigroup have drawn sudden attention to "cyberinsurance," which covers everything from the cost of notifying customers their data has been breached to the cost of defending against those customers' lawsuits.

A number of brokers told Reuters in early June that their phones were ringing off the hook, with some customers seeking coverage limits of up to $200 million for new policies. Such huge limits are noteworthy, since less than 5 percent of all data breaches cost more than $20 million.

Yet despite all that demand, there has also been a marked increase in the number of insurers willing to write such policies. Travelers Companies Inc, one of the largest property and casualty insurers in the world, launched its own program last month, and others like Chubb Corp are increasingly aggressive in the market as well.

"We see a major player come into the space once a quarter, once every other quarter, so capacity continues to exceed demand," said Bob Parisi, a senior vice president in the financial and professional liability practice at Marsh, a unit of Marsh & McLennan.

"You've got $100 million, $200 million in capacity chasing $25 million in risk. It's the undiscovered country, everyone's looking for a growth area.

Insurers are still developing standards -

"You're insuring all the nonsmoking, low-cholesterol iron workers - they do something inherently dangerous but they're well-trained and they're all healthy," Parisi said, by way of an analogy to describe how insurers approach cyber risk.

Of all the categories of coverage that exist, Marsh said the biggest increase in claims during the most recent quarter was for privacy-related claims, such as notifying customers their data had been breached and giving them credit monitoring and identity theft services.

A year of credit monitoring services has been become a standard offering from companies to their customers after a data breach, consumer advocates say.