Complicity

Andrew Clapham's 2010 paper 'Corporations and Criminal Complicity' explores

corporate complicity in international crimes such as war crimes and genocide. It is not suggested that the legal framework is the exclusive framework in this field. In many situations the ethical or moral arguments will be more persuasive for corporate actors. Furthermore an ethical framework may be more beneficial for the victims of abuse; this is due to the fact that the international criminal law framework often builds in important guarantees for defendants in order to ensure that individuals are not deprived of their liberty in unfair or unjust ways. Criminal law, and international criminal law in particular, may not therefore provide the best framework for determining blameworthiness in the context of corporate conduct. On the one hand corporations may wish to prevent and compensate acts which are not strictly speaking illegal under criminal law, on the other hand those strict penal rules are designed to safeguard the liberty of the individual defendant rather than apportion blame to different legal entities. International criminal law should perhaps be seen as part of the story of corporate complicity, rather than the last word.

Despite these obvious differences between the criminal law framework and alternative ethically based approaches there has been, in recent times, a drift, or even a shift, towards framing the corporate responsibility debate in terms of legal liability, corporate accountability, and even corporate criminality. This can be detected in the developing focus of attention in the legal scholarship, but also in the wider context of the reports produced by, inter alios, the United Nations' Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie. This trend is not, however, universal. There are situations where careful boundaries are being drawn between what could be considered a violation of international law and what might be described as unethical corporate behaviour.

Clapham concludes that -

• The emergence of concern over corporate complicity can be traced to the combination of factors: the focus by human rights organizations on corporate complicity as a way of bringing corporations within the state-centric legal framework for the protection of international human rights; the inclusion of the injunction to avoid complicity in ethical codes such as the Global Compact; the facts of the early cases under the Alien Tort Statute which focused on the nexus between certain corporations and repressive regimes. At the same time, the term complicity became associated with moral blameworthiness and the need to avoid benefiting from investments that appear to contribute to serious violations of international law in general, and the international law of war crimes and crimes against humanity in particular.

• The focus is currently on the meaning of complicity under international criminal law. While debate rages over the meaning of the Rome Statute, scholars have argued that the customary international standard for complicity is to be found in the case-law of the international tribunals and not in the text of Article 25(3)(c), and that „the universally accepted mens rea requirement for aiding and abetting liability under customary international law is knowledge, not purpose.‟

• Although presence has been interpreted as moral support for international crimes, and thus a material element in complicity, these cases relate to those in a position of authority and to those who were physically present in the vicinity of the abuses. Courts will be careful to limit individual convictions which represent 'guilt by association'. Mere presence would not normally translate into corporate complicity. Presence may, however, be very relevant to finding, both, knowledge of the crimes, and knowledge of the contribution which the company is making to the crimes. There is little legal practice concerning how the international complicity cases concerning the presence of individuals might be translated into a set of parameters which would tell us when corporate presence might lead to legal liability for complicity in violations of international law.

• While the focus may remain on corporate complicity in international crimes due to the corporate and plaintiff interest in the Alien Tort Statute, other jurisdictions will eventually address this issue. Moreover the injunction in the Norwegian Ethical Guidelines is to avoid contributing to serious human rights violations and violations of individual‟s rights in conflict situations. Not every human rights violation represents an international crime. The criminal standards for complicity therefore represent a starting point but not the whole story. The complexity of the criminal law tests need not blind us to the ordinary meaning of the term complicity: knowing assistance to another's wrongdoing.

Gorilla Masks

Another rotten review, this time by Stephen Holden in the NY Times of 17 October 2007 -

John Malkovich has virtually cornered the market on portraying cold, obsessive aesthetes in the thrall of demonic visions. And in Klimt, Raoúl Ruiz's lavish biographical fantasia, his depiction of the Austrian symbolist painter Gustav Klimt adds another Mephistophelean figure to his gallery of elegant monsters.

The painter, who died in 1918 at 55, joins Proust's Baron de Charlus in Mr. Ruiz's Time Regained, the silent film director F. W. Murnau in Shadow of the Vampire, Gilbert Osmond in The Portrait of a Lady and Valmont in Dangerous Liaisons in the roster of sinister Malkovich eccentrics, all more or less interchangeable beneath their elaborate period get-ups.

The actor's chilly stare, attenuated speech and attitude of towering hauteur define a mannered acting style that is a technique unto itself. These imperious alter egos have little feeling for others, who are depicted as helpless objects in the laboratory of a mad scientist.

I have not seen the 130-minute director's cut of Klimt that was shown at the 2006 Berlin and Rotterdam film festivals, but I imagine it was structurally more sound than the 97-minute blur of a movie that opens today in New York. It's not that Mr. Ruiz, a Chilean-born surrealist based in Paris since 1973, is the most accessible of filmmakers to begin with. The shortened version is lovely to look at, but the stilted dialogue and crude overdubbing in scenes where English is not spoken often make it an impenetrable hodgepodge.

Klimt can be appreciated as a voluptuous wallow in high-style fin-de-siecle 'decadence', to use a word bandied about in the film as a synonym for evil. The overstuffed salons of upper-class Vienna in the waning days of the Habsburg Empire are so cluttered with expensive ornaments that moving around feels like navigating inside a giant wedding cake.

The salon guests prattle endlessly about art. What is beauty? Can a portrait be an allegory? Blah blah blah. When the subject isn't aesthetics, it is gossip and scandal. Half the men in Vienna suffer from syphilis, muses a doctor who is giving Klimt mercury treatments for that very disease.

The possibility of contagion doesn't stop Klimt from continuing his sexual rampage. His studio is crowded with beautiful nude models, many of whom he beds, and rumors fly that he has sired 30 illegitimate children. In one phantasmagoric scene, he and a friend visit a brothel in which they don gorilla masks to cavort in a cage with women wearing paste-on mustaches.

Opening up

The Office of the Information Commissioner Queensland has released a rather self-congratulatory 55 page report on Public sector attitudes to Right to Information: Results of the Queensland public sector employee culture survey [PDF], covering stated perceptions within Qld government agencies. It reflects the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld).

The report comments that -

Four in five public service employees agreed that Right to Information and Information Privacy reforms have had a positive impact on their agency and that their agency has a culture open to the release of information.

presumably 80% or more agree that motherhood and observation of the speed limit is a good thing.

The OIC indicates that -

• Four in five public service employees agreed that Right to Information and Information Privacy reforms have had a positive impact on their agency and that their agency has a culture open to the release of information.

• Over three quarters agreed that the agency now publishes information as a matter of course and has employed new strategies, particularly new technologies, to make information publicly available.

• Public servants believed the reforms had been well implemented, but more work was needed. Senior public servants were more conscious of the implementation effort than front line staff.

• Public service employees in two regional areas, Wide Bay Burnett and Fitzroy, expressed less positive views than other regions of Queensland.

• Just over half the public servants acknowledged training had been conducted and was effective, but thought that more training within agencies was needed to explain how the reforms apply to their day to day work.

What does that mean? The OIC argues that -

The responses to the survey indicate that agencies have made a good start on the reforms and public servants are committed to the principles behind the reform process. The positive attitude expressed by public servants in general in this survey is encouraging for the success of these ongoing implementation efforts. The results of this survey are expected to inform agency and OIC programs.

It goes on to acknowledge that -

The results provide a useful snapshot of public servants’ views as to the current state of the reforms across a range of government agencies. A third of people contacted for the survey (33%) responded (of 8,658 participants invited 2,840 responded). 368 respondents provided comments and 22 common topics were identified in these comments. Public sector employees were presented with 20 RTI/IP related statements that they were invited to agree or disagree with, or indicate that they did not know how to answer. The first 15 were positively-worded statements while the final 5 conveyed a negative thought or idea. The mixture of positive and negative comments guarded against rote answers.

A high proportion of respondents answered 'don’t know' to a range of survey questions. Across the 20 questions this proportion ranged from 23.1% to 51.2%. Results quoted in this report are given for those respondents that answered a question (that is, excluding those that answered 'Don’t know') unless specifically noted.

Get Up

Reading Mitre 10 Australia Pty Ltd v Masters Home Improvement Australia Pty Ltd [2011] VSC 343, a nice dispute regarding get up.

Hardware retailer Mitre 10 sought an interlocutory injunction to prevent future competitor Masters (backed by Woolworths, the retail conglomerate famous, among other things, for the 'Woolworths Green' dispute highlighted in Woolworths Limited v BP plc (No 2) [2006] FCAFC 132) using what is claimed to be a confusingly similar trade dress ... similar colours in badging of its stores and in advertising.

Mitre 10 alleged that if Masters uses that get-up there is a likelihood - in breach of Schedule 2 of the Competition and Consumer Act 2010 (Cth) - that consumers will believe that -

a) Masters’ stores are Mitre 10 stores;

b) Masters’ stores are advertised, promoted and operated with the licence or approval of Mitre 10; and

c) The Masters’ business is the Mitre 10 business which has the sponsorship or approval of Mitre 10 or is affiliated with it.

Mitre 10 claims that the confusion is deliberate: "Masters is proposing to pass off its stores as those of Mitre 10, and its business as having a connection or affiliation with Mitre 10".

Mitre 10 contends that

its substantial investment in creating its brand by reference to the fourfold colour scheme would be eroded if Masters could enter the same market using the same scheme. It argues that damage would be virtually impossible to quantify, whereas damage to Masters, because it has not yet commenced trading and has no effective goodwill, would be much easier to quantify – that is, in terms of delay and alteration costs.

Masters on the other hand

contends that its work for two and a half years in formulating its corporate livery would have to be revisited. Advertising and promotion already in train, and already booked, will have to cease or be cancelled. Employees engaged for the proposed first tranche of sites will still have to be paid whilst the delay occurs. Expected profits from the new stores will be deferred, meaning that recovery of incurred development and running costs will also be deferred. New development applications will need to be made to planning authorities for those stores where permissions have been granted. It further argues that the practical effect of an interlocutory injunction would be that Masters would need to alter its colour scheme pending final trial, and once it does so, it is unlikely to revert to its original, chosen scheme should it later succeed at trial. Thus it argues that an interlocutory injunction is likely to be final relief. Finally, it claims that a delay and the publicity accompanying an interrupted launch of its new venture will cause reputational damage to its nascent brand. It asserts that damages would be very difficult to assess and would not be an adequate remedy.

Logan J comments that -

On the evidence before me, I entertain real reservations that the so-called fourfold colour scheme, said to comprise the 'Mitre 10 colours', is so distinctive in the minds of consumers of the Mitre 10 business, that its use by another trader in the same or similar goods is likely to mislead or deceive consumers in the way contended. ...

I think there is much force in Masters’ argument that, in the face of clearly different names and marks labelling the rival stores and their associated marketing, any misconception that a Masters’ store is a Mitre 10 store could not readily be attributed to the ‘ordinary and reasonable members of the classes of prospective purchasers’. Analysis of this issue, of course, is influenced by the matters set out above that point, in my view, to a relatively low degree of distinctiveness which the so-called Mitre 10 colours have probably acquired as a secondary brand of Mitre 10.

My view is further influenced by the real prospect that Masters’ entrance into the market will be accompanied by significant publicity making it plain to a large body of consumers that Masters is a new player in the market, and not merely a new emanation of an existing player, Mitre 10.

Mitre 10 emphasised the fact that many consumers are used to seeing, in the name of a Mitre 10 store, multiple names (ie. including the owner’s name, or locality) so that the appearance of ‘Masters’ will not dispel the assumption, engendered by the use of the fourfold colour scheme, that the store is affiliated with Mitre 10. I am not persuaded there is much force in this argument. Where it appears, ‘Masters’ is accompanied by a very distinctive logo and, obviously, it does not appear as a component of a multiple name which also includes ‘Mitre 10’, as is the case in Mitre 10 stores.

In all the circumstances, I am not persuaded that Mitre 10 has demonstrated a sufficient likelihood of success on its causes of action to justify the prevention by interlocutory injunction of Masters employing its proposed colour scheme on its stores and generally in its get-up. ...

Even if I were persuaded to a contrary view, but still assuming a likelihood of success at the lower end of the range, I do not consider that the balance of convenience favours the grant of an interlocutory injunction.

Mitre 10 contends that its substantial investment in creating its brand by reference to the fourfold colour scheme would be eroded if Masters could enter the same market using the same scheme. It argues that damage would be virtually impossible to quantify, whereas damage to Masters, because it has not yet commenced trading and has no effective goodwill, would be much easier to quantify – that is, in terms of delay and alteration costs.

Masters contends that its work for two and a half years in formulating its corporate livery would have to be revisited. Advertising and promotion already in train, and already booked, will have to cease or be cancelled. Employees engaged for the proposed first tranche of sites will still have to be paid whilst the delay occurs. Expected profits from the new stores will be deferred, meaning that recovery of incurred development and running costs will also be deferred. New development applications will need to be made to planning authorities for those stores where permissions have been granted. It further argues that the practical effect of an interlocutory injunction would be that Masters would need to alter its colour scheme pending final trial, and once it does so, it is unlikely to revert to its original, chosen scheme should it later succeed at trial. Thus it argues that an interlocutory injunction is likely to be final relief. Finally, it claims that a delay and the publicity accompanying an interrupted launch of its new venture will cause reputational damage to its nascent brand. It asserts that damages would be very difficult to assess and would not be an adequate remedy.

I do not propose to deal with this issue at length. But, in my view, the risk of damage to the goodwill of Mitre 10, should I not grant the injunction, is outweighed by the risk of damage to Masters through the probable delay that would occur to the well publicised launch of its new venture in the Australian market if I were to grant the injunction. I find the arguments raised by Masters on this question to be more persuasive than those of Mitre 10, in part because of the view I have formed as to the likely degree to which its goodwill is dependant upon its use of the ‘Mitre 10 colours’ to the exclusion of others.

Emulation

The Australian Press Council, a club for people who control the presses, has released its brief Standards on the reporting of Suicide.

The Council notes that -

General reporting and comment on issues relating to suicide can be of substantial public benefit. For example, it may help to improve public understanding of causes and warning signs, have a deterrent effect on people contemplating suicide, bring comfort to affected relatives or friends, or promote further public or private action to prevent suicide.

Subject to careful compliance with the following standards, the Council does not wish to discourage material of this nature. Extra caution is required when the material is likely to be read or seen by people who may be especially vulnerable (eg, because of their age or mental health) and relates to suicides by their peers or by celebrities.

It continues that -

In deciding whether also to report the identity of the person who has died by suicide, account should be taken of whether at least one of the following criteria is satisfied -

a) identification is clearly in the public interest (see note 2); or

b) clear and informed consent has been provided by appropriate relatives or close friends (see note 3).

The method and location of a suicide should not be described in detail (eg, a particular drug or cliff) unless the public interest in doing so clearly outweighs the risk, if any, of causing further suicides. This applies especially to methods or locations which may not be well known by people contemplating suicide.

Reports should not sensationalise, glamorise or trivialise suicides. They should not inappropriately stigmatise suicides or people involved in them but this does not preclude responsible description or discussion of the impacts, even if they are severely adverse, on people, organisations or communities. Where appropriate, underlying causes such as mental illness should be mentioned.

The Council reiterates aspirations to best practice in respect for privacy -

News and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals. However, the right to privacy is not to be interpreted as preventing publication of matters of public record or obvious or significant public interest. Rumour and unconfirmed reports should be identified as such. (General Principle 4)

Publications have a wide discretion in publishing material, but they should balance the public interest with the sensibilities of their readers, particularly when the material, such as photographs, could reasonably be expected to cause offence. (General Principle 7)

In gathering news, journalists should seek personal information only in the public interest. In doing so, journalists should not unduly intrude on the privacy of individuals and should show respect for the dignity and sensitivity of people encountered in the course of gathering news. Intrusions may be more readily justifiable if related to a person’s public duties or activities. (Privacy Principle 1)

Members of the public caught up in newsworthy events should not be exploited. A victim or bereaved person has the right to decline or discontinue an interview or photographic session at any time. (Privacy Principle 7)

Out of mind, out of insurance

Mental health discrimination and insurance: a survey of consumer experiences [PDF], a 33 page report by the Mental Health Council of Australia, considers "the experiences of Australians living with mental illness when accessing insurance products and making claims against their policies". The news isn't good and is alas unlikely to get better.

The report is founded on a survey involving the mental health, insurance and financial services sectors, aimed at improving "life insurance and income protection outcomes for Australians experiencing mental illness".

In contrast to the flippant heading of this blog post, 'mental illness' does not exclusively mean what one of my less positive colleagues refers to as "baying" (at the moon or otherwise). It might involve short term or ongoing depression. The report reinforces past claims that Australians with experience of mental illness face substantial difficulties when seeking insurance products that are otherwise readily available to people without a history of mental illness but who might, for example, be grossly obese.

Survey respondents reported significant difficulty and discrimination when applying for insurance products, particularly life insurance and income protection products, and when making claims against their policies. Mental health consumers often face higher premiums and exclusions on their policies and in many cases are refused coverage outright. Moreover, survey respondents stressed that insurance companies did not take into consideration their personal circumstances and instead made broad assumptions about their ability to maintain employment and their general level of function, and this in turn had negative implications for their application or claim.

Survey respondents revealed a lack of awareness of their rights and responsibilities in relation to insurance applications, including their duty of disclosure, or their right to appeal a decision. Moreover, the matter-of-fact nature of some sales, underwriting and/or call centre staff in obtaining information about suicide attempts and/or ideation, for instance, was viewed as humiliating, embarrassing or undignified.

Given that one in five Australians will be affected by mental illness in any twelve month period, and one in two will be affected across the span of a lifetime, it is of great concern that Australians living with mental illness are still not able to access or maintain insurance policies at the same rate as other Australians.

The authors comment that -

The results of this survey highlight the work that still needs to done in educating not only the insurance and financial sector workforce, but all Australians about the real-world experiences of mental illness, to break down the stigma and stereotypes that are so frequently applied to mental health consumers, and to minimise the disadvantage they experience as a result of misinformation and misconception. Moreover, considerable work needs to be done to increase knowledge and awareness of the insurance and financial services industries, how they work, and what products are better suited to people with mental health conditions etc., amongst Australians living with mental illness. This publication recommends that the mental health and broad ranging insurance, financial and superannuation sectors continue to work towards better understanding and addressing these gaps.

They note that -

Being proactive and seeking treatment was experienced as a disadvantage for consumers who applied for insurance. Consumers who had sought treatment experienced higher premiums and exclusions, which were viewed as unfair.

and that

Participants also believed that insurers encouraged self-exclusion by trying to wear people down on purpose so they would just give up; this was specifically mentioned with regard to the claims process. Not being granted insurance or having to endure lengthy claims processes and just general day-to-day dealings with insurers were often described as having a significant impact on the person’s life. This was experienced in terms of the impact on the respondent’s mental health but also, as in the aforementioned example, in terms of financial strain and stress, and the flow on effects. In this way, some respondents drew on the significant impacts of the incompatibility of mental illness and insurance that were seen to perpetuate a cycle of exclusion. Many respondents mentioned their gratitude at being given a voice on this issue, suggesting that they had been excluded from having a voice about this in the past.

OAIC

The Office of the Australian Information Commissioner (OAIC) has "reissued its 4A Framework - A tool for assessing and implementing new law enforcement and national security powers" and has issued Part 3 of the FOI Guidelines: Processing requests for access.

Don't get too excited. The 4A Framework document comprises a single page [PDF], with the requisite purple hue, summarised as -

Analysis – Is there a problem? Is the solution proportional to the problem? Is it the least privacy invasive solution to the problem? Is it in line with community expectations?

Authority – Under what circumstances will the organisation be able to exercise its powers and who will authorise their use?

Accountability – What are the safeguards? Who is auditing the system? How are complaints handled? Are the reporting mechanisms adequate? And how is the system working?

Appraisal – Are there built in review mechanisms? Has the measure delivered what it promised and at what cost and benefit?

I do wonder about the usefulness of a document in which the summary comprises around a third of the content and where the explanation of Analysis comprises -

Careful analysis is needed in the development phase to ensure that the proposed measure is necessary, effective, proportional, the least privacy invasive option and consistent with community expectations. This analysis should involve consideration of the size, scope and likely longevity of the problem, as well as the range of possible solutions, including less privacy invasive alternatives. The impact on privacy of the proposed solution should be analysed and critical consideration given to whether the measure is proportional to the risk.

More substantively, the OAIC has released a Draft Disclosure Log Determination in relation to the Freedom of Information Act 1982 (Cth).

The draft Determination, under s 11C(2) of the Act, is meant for public comment. If adopted it would mean that Ministers and Australian government agencies would not be required to publish in their disclosure log any information prescribed by the determination.

The determination would apply to -

• information in a document that was an exempt document at the time that access was given by the agency or Minister to the FOI Applicant, and

• information in a document that the agency or Minister would have decided was an exempt document at the time that access was given to the FOI Applicant, if the request for that document had been received from a person other than the FOI Applicant.

Under s 11C(3) of the Act national government agencies and Ministers are required to publish - through a 'disclosure log' on their websites - information that has been released in response to each freedom of information access request. The disclosure log requirement does not apply to publication of personal, commercial, financial or professional information thatt would be 'unreasonable'. The proposed Determination relieves an agency or Minister of any obligation to publish in a disclosure log an exempt document that has been released to an applicant. The expectation is that the agency or Minister may decide that although it is appropriate to provide access to the particular applicant it is not appropriate to publish the document, for example because the document was released in connection with legal proceedings in which the applicant is involved, in connection with a research project, or because the confidential nature of information in a document "would not be jeopardised by selective release".

The Determination No 1 recognises that the exempt status of a document can depend on the identity of the applicant, eg although it would be appropriate to provide a person with a document that relates specifically and only to them it may be an unreasonable disclosure or contrary to the public interest to release that document to another person.

The OAIC's commitment to openness is evident in the timeframe for public comment: provide your feedback by 17 August 2011!

The OAIC has meanwhile foreshadowed its inaugural 'OAIC Information Policy Conference', to be held in Canberra on 15 November 2011. The theme of the conference will be the very imaginative 'Public Sector Information: A National Resource'.

Conference sessions will focus on various aspects of information policy, with a particular focus on the publication of public sector information. Conference speakers are yet to be confirmed. However, they will include a range of information policy experts, including representatives from Australian Government agencies.

A conference dinner will be held on 14 November 2011 at the National Portrait Gallery. Senator the Hon John Faulkner will deliver the conference dinner speech.

A program and registration details will be released shortly.

Let's hope, that as in the recent FOI event, civil society advocates, academics and students are not priced out of the market.