Reputation

SSRN has released Mark Davison's 'Reputation in Trade Mark Infringement: Why Some Courts Think it Matters and Why it Should Not' - published in 38 Federal Law Review (2010) 231.

Davison comments that -

Australian case law on infringement of registered trade marks has placed an increasing emphasis on the reputation of the owner of the registered trade mark in determining whether infringement has occurred. Consideration of the trade mark owner's reputation has been included in determining whether the sign used by the defendant is deceptively similar to the registered trade mark and, more recently, in determining whether the defendant has used its allegedly infringing sign 'as a trade mark'. Neither development is consistent with either the law relating to registered trade marks or the underlying policy reasons for the system of registration. This article discusses the case law which has introduced the tendency of the courts to consider the reputation associated with an owner of a registered trade mark in determining infringement proceedings, the reasons why such an approach is not consistent with the legislation nor with the rationale underlying our registered trade mark system.

In particular, one of the objectives of the registered trade mark system is to provide a bright line that delineates the property rights of the registered owner. The bright line is publicly available information as to who has the rights in a trade mark and what those rights are. These rights are defined by reference to the act of registration, not by reference to the rights to protection of the reputation of the registered owner conferred by a passing off action which are independent of the rights flowing from registration. Consequently, if the rights conferred by registration are diminished or enhanced by reference to the trade mark owner's reputation, the exercise of delineating the rights of the owner in advance would be rendered nugatory to the extent that they are so diminished or enhanced. For that reason alone considerable caution should be exercised before introducing evidence of a trade mark owner's reputation in the process of determining whether its trade mark has been infringed.

He offers five conclusions -

First, the reputation of a registered owner is never relevant to the question of use of a sign as a trade mark by a defendant. The decisions to the contrary are simply wrong.

Second, the only circumstance in which the reputation of the registered owner may be relevant to the issue of deceptive similarity is where judicial notice of that reputation is, and can be taken. Consequently, evidence on the point is neither required nor even permissible for this purpose. The circumstances in which such judicial notice will be taken will be very limited.

Third, extreme care must be taken to identify which aspect of the trade mark owner's judicially noticed reputation will be taken into account. In particular, the relevant reputation must be the reputation of the registered trade mark, not other aspects of the trade mark owner's reputation. Otherwise, the inquiry becomes a general one relevant to passing off actions but not relevant to trade mark infringement proceedings.

Fourth, the extremely limited circumstances in which reputation may be relevant and the tendency to incorrectly rely on aspects of reputation not based on components of the registered trade mark, coupled with the far greater importance of other aspects of the comparison of the allegedly infringing sign and registered trade mark, suggests that the starting point of courts should be to ignore reputation altogether in considering trade mark infringement issues. At best, reference to reputation should be an extremely rare event.

Fifth, all of the above conclusions are not only consistent with, but required by, both the wording of the trade marks legislation and the underlying policy objectives. The act of registration alone should define the rights of a registered owner. By doing so, there is both an incentive to register and a corresponding incentive to contribute to a system which is more transparent than the protection of common law trade marks. The introduction of considerations of reputation into determining trade mark infringement unnecessarily complicates litigation and understanding of the positions of trade mark owners.

Hatespeech

In Monis v R; Droudis v R [2011] NSWCCA 231 the Supreme Court of New South Wales, Court of Criminal Appeal has determined that the offence of using a postal service to offend - within s 471.12 of the Criminal Code 1995 (Cth) - does not infringe upon the implied constitutional freedom of political communication.

The Court held that although the law effectively burdens the freedom, it does so in a way which is consistent with the maintenance of the system of government prescribed by the national Constitution. The law would only be breached if a person mindful of the robust nature of political debate, and considerate of the accepted boundaries of that debate, would conclude that the use of the postal service was offensive.

Man Haron Monis (aka Sheik Haron) had appealed against conviction regarding multiple indictments of using a postal or similar service to menace, harass or cause offence. He was charged with 12 counts of using a postal service, (ie Australia Post)in a way that a reasonable person would regard as being, in all the circumstances, offensive contrary to s 471.12 of the Criminal Code 1995 (Cth). He was also charged with one count of using a postal service, Australia Post, in a way that reasonable persons would regard as being, in all the circumstances, harassing contrary to s 471.12 of the Code .

In April Monis he unsuccessfully sought to have the case dismissed in the NSW District Court. The charges in R v Monis; R v Droudis [2011] NSWDC 39 reflect the allegation that he had sent offensive letters to the wives and families of Australian soldiers who died in Afghanistan and to the family of a trade official who died in last year's Jakarta bombing. Copies were also allegedly sent to the Defence minister, Prime Minister and Opposition Leader. Monis unsuccessfully argued the charges were invalid because they infringed on the implied constitutional freedom of political communication.

Tupman DCJ in rejecting that argument identified factors considered in determining whether the Act is appropriate and adapted to achieve its legitimate end. Those factors include -

That the impact on political and governmental communications of S471.12 is only indirect and incidental. The intention of the provision, particularly viewed in the light of its legislative history, is broadly to prevent public postal services being used to disseminate more generally offensive material, not to regulate or limit dissemination of political and governmental communication through the post.

That it is a provision giving rise to a criminal sanction.

That this provision may have a chilling effect on political communication because its limits are uncertain and might amount to massive overreach to achieve its legitimate ends, leading to the risk of selective prosecution.

That in terms there are no defences for an offence committed under the section, but this I accept is subject to the important qualifying words in the section ' ... that reasonable persons would regard as being, in all the circumstances ...' .

That this is a provision enacted post Lange so that it can be inferred that the legislature did not intend the section to catch postal communications which are genuinely political or governmental communications in their true context, but rather that it apply to communication that is offensive in a way that goes beyond its relevance to political debate or beyond its political purpose.

That any impact on the implied freedom is limited by the fact that, if at all, it applies only to postal services, and that representative government and political discourse which underpins democratic and representative government is not broadly affected by the provision.

Significantly in my view are the words appearing in the Section, ' ... that reasonable persons would regard as being, in all the circumstances ...' as a qualifier of the term 'offensive' . This is not just relevant to a construction of the term 'offensive' but is important because it means that the law is not unqualified or unlimited in its operation, which was a matter Justice McHugh considered important in determining the validity of the disputed provision in Coleman v Power. These qualifying words would in my view allow the tribunal of fact to determine the context in which the postal service was used by an accused person, including the intended identity of the recipient of a postal communication, any circumstances surrounding that person and his or her receipt of such an article, the circumstances of the accused including it seems to me his state of mind and the extent to which that might be genuinely reflected in the content of the communication, contemporary debate about current political issues, contemporary values about political debate in a robust democracy and similar maters concerning the circumstances in which such a communication is made."

The Court of Criminal Appeal earlier this month unanimously endorsed the rejection of the request to dismiss the charges, commenting that "Whilst at one level the letters are critical of the involvement of the Australian military in Afghanistan, they also refer to the deceased soldiers in a denigrating and derogatory fashion". It indicated that people had a right to expect that communications that arrived at their home or office would not "undermine or threaten a legitimate sense of safety or security of domain".

The Attorney General, intervening in support of the respondent, supported the construction of the word "offensive" found by the primary judge. He pointed out that it would not be expected that a section creating a criminal offence with a maximum penalty of two years would be created for behaviour that was trivial or minor such as merely hurting or wounding feelings. He submitted that because the word was associated with menacing and harassing, it connoted behaviour likely to arouse significant emotional reactions of a similar nature.

The Attorney General also pointed to the fact that the use of the postal service related to the method of use as well as the content of the communication. He submitted that this demonstrated that one of the purposes of the legislation was to protect the integrity of the post.

The Solicitor General who appeared on behalf of the Attorney General did not seek to support the submission made by the respondent that the first of the two questions posed by Lange should be answered in the negative, but submitted that the legislation was reasonably appropriate and adapted to secure a legitimate end compatible with the maintenance of a system of representative and responsible government. He pointed to the fact that the question was not whether the choice made by parliament in enacting the legislation was preferable or desirable but rather whether it was reasonable. He also drew the distinction between laws that have as their purpose the restriction of communication on governmental or political matters and those that merely affect such communications incidentally. He submitted that the law in question in the present case fell into the latter category and, as the limiting effect was incidental and unrelated to the political nature of the communication, an affirmative answer to the second question posed by Lange was unlikely.

The Solicitor General submitted that in those circumstances the primary judge was correct in her conclusion, particularly having regard to the fact that for there to be a contravention, the communication must be offensive to a reasonable person in all the circumstances.

The appeal by Monis's co-accused, Amirah Droudis, charged with eight counts of aiding and abetting the sending of the letters, was also dismissed.

The Ausralian jurisprudence differs from that in the US, where speech that is offensive but does not involve threats has received greater protection. A salient example is expression by adherents of the Westboro Baptist Church, infamous for homophobic protests at the funerals of US military casualties. That hatespeech is discussed in works such as 'Not Your Mother's Remedy: A Civil Action Response to the Westboro Baptist Church's Military Funeral Demonstrations' by Chelsea Brown in 112 West Virginia Law Review (2009), 'The First Amendment Right Against Compelled Listening' by Caroline Corbin in 89 Boston University Law Review (2009) 939, 'The Respect for America's Fallen Heroes Act: Conflicting Interests Raise Hell with the First Amendment,' by Rebecca Bland in 75 University of Missouri-Kansas City Law Review (2006-2007) 523 and 'The Constitutionality of Let Them Rest in Peace Bills: Can Governments Say Not Today, Fred to Demonstrations at Funeral Ceremonies' by Katherine Ritts in 58(1) Syracuse Law Review (2007-2008) 137.

Political Databases

The Age (Melbourne) reports that an injunction in the Victorian Supreme Court last night stopped state police from removing three journalists' personal computers from the Age, after "police from Victoria's e-crimes unit executed a warrant to search electronic and hard-copy files held by investigative reporters Nick McKenzie, Royce Millar and Ben Schneiders".

The search reflects the newspaper's November 2010 report on private information about voters held on an ALP database. Such profiling appears to be standard practice among Australian political parties.

Today's item states that -

In court last night, The Age's editor-in-chief, Paul Ramadge, said the removal of the computers, which contained a great deal of confidential information beyond the scope of the investigation, would cut to the heart of the paper's code to protect sources. He explained to Justice Karin Emerton that investigative journalists received a lot of highly confidential information from a range of sources and the release of such information, inadvertently or otherwise, would be extremely damaging.

After hearing evidence from Victoria Police about the challenge of analysing the computers at The Age's Media House premises rather than at police headquarters, Justice Emerton ordered that police be restrained from removing the computers, that they inspect them at Media House and that The Age provide access and assistance.

Earlier yesterday, detectives and IT experts from the e-crimes unit spent about seven hours at The Age in legal discussion and going through electronic and hard-copy files in the newsroom.

The Age revealed in November last year that the Labor Party had a database containing personal details of thousands of Victorians and that campaign workers had access to them prior to the election.

The search warrant executed by the detectives was aimed at determining whether Age staff had illegally tapped into that database.

Unsurprisingly, the publisher highlighted a public interest rationale, with Fairfax chief executive Greg Hywood commenting that ''It would be extremely disappointing if quality journalism, the public interest in the story and the integrity of what we stand for - including protecting our sources at all costs - suffers because powerful individuals didn't like what we revealed'' . The Age's editor in chief commented that -

'While we are co-operating with police, we have expressed our grave concerns over the risk that our sources for the report may be identified.

We protect our sources at all costs. It is a code that cuts to the heart of everything we do as journalists. It is about trust. It is about ethics. If the sources for this report are identified through the police searches, even inadvertently, it will be a dark day for journalism.

In practice the maintenance of political databases is a dirty but not so secret activity that poses substantive privacy concerns. Politicians - and the organisations or commercial entities involved in maintaining/feeding those databases - would presumably claim that their activity is "in the public interest".

Louise Connor, state secretary of the Media, Entertainment & Arts Alliance, is reported as commenting that the story was clearly in the public interest and that the reporters involved were bound by a code of ethics. Let's not, of course, ask inconvenient questions about the meaningfulness of that code of ethics. Connor indicates that ''I have discussed the story with them and their actions at the time and I am satisfied that they accessed the database only for the purposes of the story they published". Sleep soundly in your beds, kiddies, after that reassurance.

In 2007 I commented that the major Australian federal political party databases at that time appeared to be Electrac (ALP) and Feedback (Coalition), both based on the Australian Electoral Roll - which under amendments to the Commonwealth Electoral Act 1918 (Cth) is not available to commercial or non-profit organisations - and are installed across electorate offices to track voters who are in mail, telephone or fax contact with members of Parliament. Much data input involves electorate office staff. It has been claimed that the databases are valuable in identifying swinging voters (up to 30% of voters in marginal seats).

Peter Van Onselen & Wayne Errington in the 2003 'Electoral Databases: Big Brother or Democracy Unbound?' [PDF] and 2004 'Voter Tracking Software: The Dark Side of Technology & Democracy' [PDF] argued that the federal party secretariats target campaign resources (including telephone polling and direct marketing) at these swinging voters in marginal seats "at the expense of the majority of the electorate", thereby "skewing democracy" because -

the system allows the major parties to treat voters who strongly identify with either major party, particularly against their own, with contempt.

It was subsequently been suggested - a claim that hasn't been substantiated - that the Liberal Party has on-sold to its federal and state candidate databases containing private information about voters, in breach of federal electoral legislation.

TRIPS

'When Framing Meets Law: Using Human Rights as a Practical Instrument to Facilitate Access to Medicines in Developing Countries' by Duncan Matthews in 3(1) The WIPO Journal (2011) 113-127 comments that -

Although it is recognized widely that human rights-based approaches have underpinned substantive arguments in favor of utilizing the full range of flexibilities contained in the TRIPS Agreement to ensure access to medicines, the extent that human rights have been used by health activist NGOs in developing countries is far greater than previously thought. This paper outlines how NGOs have used concrete human rights principles enshrined in national constitutional law as a practical tool in their access to medicines campaigns.

Memory, Obscurity and Misunderstanding

'The 'Right to Be Forgotten' - Worth Remembering?' by Jef Ausloos in (2012) Computer Law & Security Review argues that -

In the last few years there has been a lot of buzz around a so-called ‘right to be forgotten.’ Especially in Europe, this catchphrase is heavily debated in the media, in court and by regulators. Since a clear definition has not emerged (yet), the following article will try to raise the veil on this vague concept. The first part will weigh the right's pros and cons against each other. It will appear that the ‘right to be forgotten’ clearly has merit, but needs better definition to avoid any negative consequences. As such, the right is nothing more than a way to give (back) individuals control over their personal data and make the consent regime more effective. The second part will then evaluate the potential implementation of the right. Measures are required at the normative, economical, technical, as well as legislative level. The article concludes by proposing a ‘right to be forgotten’ that is limited to data-processing situations where the individual has given his or her consent. Combined with a public-interest exception, this should (partially) restore the power balance and allow individuals a more effective control over their personal data.

Ausloos concludes that there is merit in an ‘right to be forgotten’, arguing that the right has a well-defined scope and could be established, including an exception-clause to avoid any negative consequences a broader interpretation would entail.

The ‘right to be forgotten’, therefore, should definitely not be ‘forgotten’. Instead, a potential adoption of the right should be thought through thoroughly and not be the result of a panic reaction to the events of the day. The main objective should always be to give individuals a balanced control over their personal data. An adequate implementation of the ‘right to be forgotten’ will definitely contribute to a shift in the power balance, to the benefit of each and every individual in the information society.

Another perspective on obscurity and dignity is provided by the Queensland Civil and Administrative Tribunal in Emanuel and Anor v State of Queensland [2011] QCAT 731, duly footnoted in my doctoral dissertation.

 Sunrise Eliza Kayah Celeste Emanuel and Mimi Yahjah Emanuel (formerly known as Wilhelmina Maria Anthonia) sought to refuse being photographed for a driver's licence, arguing that the requirement for inclusion of her image as photo ID on the driver licence card was contrary to her religion and hence impermissibly discriminatory under the Anti-Discrimination Act 1991 (Qld).

The Tribunal states

Each of these ladies complains that they have been unlawfully discriminated against because the State of Queensland has refused to issue them with driver licences because they declined to allow themselves to be photographed so that the relevant photographs could be imprinted on the relevant licences. 

Each of the Complainants says that she cannot agree to having her photograph taken for this purpose because her religious beliefs prevent it, the taking of a photograph being in direct violation of God‟s Second Commandment. 

The complaint is that the refusal of Queensland Transport to issue a licence, without a photograph on it, amounts to unlawful discrimination, in accordance with the Queensland Anti-Discrimination Act 1991, on the ground of religious belief or activity. ... 

Each of the Complainants lodged complaints with the Anti-Discrimination Commission of Queensland in 2009. Matters did not resolve there, and duly were referred to this Tribunal. The referrals stated that the ground of complaint, in each case, was “religious belief or activity” in the area of administration of State laws and programs....

The matters arose because the Complainants changed their names (properly in accordance with law), and then sought to have their existing current and valid driver licences reissued, showing their new names. Queensland Transport refused to do this, when the ladies said that they could not have their photographs taken because of their religious beliefs. ... 

The relief sought by the Complainants, if they make good their complaints, is, it seems, that they should be issued with a photo-less licence. They make suggestions as to the contents of such licences so as to ensure that, as drivers, they are properly and validly identified.

The Decision notes

The Complainants relied principally upon two volumes of very detailed material. That material begins with a fourteen page letter signed by the Complainants. It is difficult to summarise, but its essence seems to be that the reasons given by the authorities for refusing to change Mrs Mimi Emanuel‟s licence details and refusing to issue a new licence to her daughter, Sunrise, are unreasonable, in all of the circumstances, including the circumstance that the Complainants‟ refusal to have their photographs taken involves their following “God’s Commandments as they are written in the Bible”. 

In particular, the Complainants express their view of the Second Commandment which “tells us not to make an image or a likeness”. In their materials, there are then references to Sir William Blackstone‟s writing to the effect that human laws are only valid when in line with God‟s laws; to United States legislation; to the Annotated Constitution of the Australian Commonwealth; and to a large number of other matters. 

It is argued that the cost and risk of issuing the Emanuels with photo-less driver licences is minimal, and an appeal is made “to have the law of common sense applied and for Queensland Transport to make good to Sunrise and negotiate a workable arrangement with the Emanuels”.

The Tribunal states that it is worth reproducing some of the arguments by the Emanuels

“1. Does one need a photograph to be able to drive a car? This is not a trick question; it is an honest straightforward question. 

2. Of course one does not need a photograph to drive a car. Any child will tell us that. 

3. God gave us all our right to travel our roads freely as is reflected not only in our Constitution but also in many other covenants and treaties, as is our right to freedom of thought, conscience and religion. 

4. Queensland Transport, a government department is disputing our right to religious freedom and our right to travel our roads freely. 

5. They are not only disputing this right, they have actively taken these freedoms away without even allowing an appeal. 

6. Queensland Transport argues that soon there will be a law ... that regardless of the outcome of this tribunal ... 

7. If what Queensland Transport states were to be true this would obviously make a mockery of this whole conciliation process, both the anti-discrimination law as well as the tribunal. To make a person with a genuine complaint wait for nearly 20 months before they get a tribunal hearing meanwhile pretty much disputing the facts, reiterating policies and procedures and not in any way whatsoever attempting to come to some kind of agreement, even if this were to be interim. None of this shows us goodwill, or the right spirit abiding by anti-discrimination law. 

8. To then state that regardless of what the ruling of the tribunal will be, this law ... well .. So now all of a sudden the Anti-Discrimination Act legislation is overruled by other state regulation? How does that work in a fair society? 

9. None of this makes sense to us. We understand that the anti-discrimination laws and Tribunal are in place exactly to determine if what has taken place was lawful, fair and reasonable and to prevent discrimination. Not to be outdone by some clever manoeuvring of state legislators. 

10. The Australian Constitution states under 116 that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion ... ...

11. And under 109, when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. 

12. The Anti-Discrimination Act 1991 prohibits indirect discrimination under chapter two, Part 3 section 9(b) based upon religious belief or religious activity under chapter Two, Part 2, section 7(i).

A Queensland government representative testified 

in his experience it has become increasingly evident and accepted by the Department that the Queensland driver licence is more than an authority to drive. Not only does it enable police to identify quickly a driver in relation to a relevant matter, but it has become a primary form of identification, used by holders when proof of identity is required, for example when opening a bank account, taking out a loan, proving age to purchase liquor, et cetera. [

In turn, the view of the Department is that, in following the Administrative Guidelines, the Department has, and accepts that it has, a duty to ensure that a driver licence is only issued where the licence can reliably identify its holder to any law enforcement agency, government agency, commercial entity, or community group. He expresses the view that reliable identification cannot occur in the absence of a photograph, and that a driver licence does not compare to other identity documents such as a birth certificate or a passport, because it is more functional and durable, can easily be carried on a person, and is one of the only photographic identity documents to include a person‟s address. 

He says that in his position of responsibility, he is of the view that issuing a driver licence without a photograph would – a) be inconsistent with nationally agreed administrative guidelines; b) significantly compromise the primary uses of the licence; and c) set a precedent that would be readily open to abuse by members of the public who may seek to fraudulently reproduce or alter a non- photographic licence.

Another representative is reported in the Tribunal's decision as arguing

he ability to readily identify a person from a photograph contained on a driver licence is the primary advantage of a driver licence containing a photograph. He then identifies numerous risks which would be associated, potentially, with the issue of photo-less driver licences, including possibilities of theft, misuse, and the like. 

He says that he is greatly concerned, as an investigator of fraud and identity theft, that permitting two people to have a driver licence that is valid without a photograph would result in significant risk to the process of obtaining a driver licence and the security features of a driver licence. He expresses the view that the security of the driver licence system would be put at risk, and refers to the possibility of offenders falsely claiming to have the same beliefs as the Complainants, to be issued a driver licence without a photograph. 

He makes reference to proposals for a new digital driver licence in Queensland and the use of biometric technology, and expresses concern that if the Complainants were permitted to have a digital driver licence without a photograph, the new project might be undermined.

The  Tribunal in concluding that the anti-discrimination statute had not been breached noted

Reference is made to numerous matters, which are in turn referenced to the evidence –

a) A photograph driver licence is a key identity document, often used as a primary means of authenticating identity. The photograph, signature and address are critical in this regard; 

b) The State has a duty of care to ensure that driver licences are issued in a manner ensuring that the correct identity of a person is on the licence, and this, in turn, requires imposing objective requirements of the sort referred to in the evidence; 

c) It is not contrary to the scheme and objects of the Anti-Discrimination Act 1991 to permit a decision making authority to identify a threat to the safety or, in this instance, welfare of other persons (in the case of the community in general, which is adversely affected by identity fraud for whom the welfare of the decision maker is responsible); 

d) Other identification documents are inferior to the driver licence for a variety of reasons outlined in the evidence; 

e) A photograph on a driver licence plays a critical role to expedite and facilitate identification at accident scenes, or when vehicles are stopped by police officers; 

f) A precedent would be created that would undermine the integrity and purpose of a driver licence if an exemption is made, because other applicants would or could seek to obtain non-photographic driver licences, for instance, because of claimed religious beliefs. Some such claims may be genuine, but an exemption would not be able to prevent a person with illegal or fraudulent aims from claiming the relevant belief; 

g) There is an increased and significant risk for identity fraud to occur if a driver licence is issued without a photograph, as set out in the evidence of Detective SergeantGorrie, and in the Victorian Ombudsman's document referred to above. To issue a driver licence without a photograph also would be inconsistent with the State‟s obligations under the Inter-Governmental Agreement and the Regulation; 

h) The inclusion of a photograph on a driver licence ensures compliance with the National Administrative Guideline, ensuring that a driver licence can be mutually recognised throughout Australia; 

i) Relevant Queensland State legislation requires the chief executive of the Department of Transport and Main Roads and/or the chief executive‟s delegate to refuse to consider an application for the grant, renewal or replacement of a driver licence if a person refuses to allow the taking and keeping of a digital photo and signature of the person; 

j) The last point relates to the intention to introduce biometric facial recognition software, aimed at uncovering and preventing instances of duplicate identities, and ensuring renewals of driver licences are genuine and not a consequence of identity theft; 

k) Any exemptions from the mandatory photograph requirement will (it is said) materially increase the vulnerability of the licensing system and the risk of identity-related fraud; 

l) If a small number of complainants were to be accommodated by some alternative non-photographic licence, the State would need to change its processes or technology; 

m) On the evidence, there are no available or practical alternatives to the requirement for a photograph which achieves the same desired end or objective and, in particular, fingerprint technology is not a practical, cost-effective or workable alternative.

The decision thus differs from claims by people seeking a photo ID in which the head is covered (eg by a veil, turban or even a Pastafarian colander) but the face is clearly visible.

In Kosteska v Phillips; Kosteska v Commissioner of Police [2011] QCA 266 the Qld Supreme Court has considered three applications by Lille Kosteska for leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld). The applications are a matter of pseudolegalism, highlighted elsewhere in this blog, particularly in relation to the sovereign citizen mindset. 

The judgment states 

 [2] The first, CA No 63 of 2011, is from an order of Judge Rafter SC on 31 March 2011 refusing the applicant's request to delist her appeal to the District Court from a magistrate's finding that she was guilty of unlawful possession of cannabis. The appeal was listed in the District Court for hearing on 15 April 2011. On 31 March 2011, the applicant argued that the appeal should be delisted because she wished to make an application in respect of it to the High Court of Australia. Judge Rafter referred to correspondence on the file from the Deputy Registrar of the High Court to the appellant dated 26 November 2010. The Deputy Registrar had noted that the documents that she had attempted to lodge did not comply with the rules and would not be accepted. The correspondence from the High Court Deputy Registrar suggested that her efforts in that court were futile. As the applicant had filed the appeal in the District Court, it was in the interests of justice that the appeal proceed to hearing on 15 April. For those reasons, Judge Rafter refused her application to delist the appeal. 

 

[3] The appeal was subsequently heard and refused by Judge Shanahan on 15 April and that order is the subject of CA No 96 of 2011. It would therefore be pointless to grant leave to hear an appeal from Judge Rafter's order refusing to delist a matter which has been heard since and is now itself the subject of another application for leave to appeal to this Court. It follows that the application for leave to appeal in CA No 63 of 2011 should be refused. 

 

[4] CA No 64 of 2011 is from another order of Judge Rafter made on 31 March 2011. The applicant was charged with an offence of disqualified driving as a repeat unlicensed driver. On 23 March 2011 she appeared before Magistrate Callaghan in the Brisbane Magistrates Court. The applicant said she wanted the case heard that day. The magistrate explained that this was not possible as the prosecution was also entitled to procedural fairness and had only been informed that day that the applicant was pleading not guilty. The magistrate set the case down for hearing on 12 May 2011 to allow both sides to prepare their cases. 

 

[5] The applicant appealed to the District Court from this unremarkable order listing the matter for trial. Judge Rafter noted the interlocutory nature of the order. This meant that the appeal to the District Court was premature; so much was clear from Coulter v Ryan. For those reasons, his Honour dismissed the appeal. [ 

 

6] Judge Rafter was plainly right. The applicant had no right of appeal under s 222 Justices Act 1886 (Qld) from Magistrate Callaghan's interlocutory order: see Coulter v Ryan. The application for leave to appeal from Judge Rafter's order in CA No 64 of 2011 should be refused. 

 

[7] CA No 96 of 2011 concerns the appeal to the District Court from Magistrate White's finding at the Beaudesert Magistrates Court on 31 May 2010 that the applicant was guilty of unlawful possession of cannabis. The sentence proceedings were adjourned and had not been dealt with at the time of this application. The appeal was heard on 15 April 2011 by Judge Shanahan who gave ex tempore reasons dismissing it. The applicant has applied for leave to appeal from that order. Her arguments before Judge Shanahan seem to have been the same arguments she has raised in this court. 

 

[8] First, she challenged the jurisdiction of the District Court to hear her appeal. As she was the appellant, this challenge seems irrational. In any case, Judge Shanahan rightly noted that he had jurisdiction to hear the appeal under s 222 Justices Act. 

 

[9] She next contended the matter should not have been dealt with summarily in the Magistrates Court. Judge Shanahan noted that the Drugs Misuse Act 1986 (Qld) s 118 provided for the prosecution to elect to deal with a charge of this kind summarily; that was what occurred here. His Honour also noted the applicant's argument that the Drugs Misuse Act was unlawful, as were all statutes since the Imperial Statute of Westminster and the Australia Act 1986 (Cth) abolished the English Parliament's capacity to legislate for Australia. The applicant also raised a complaint that the only form of legal tender was gold or silver coin. These arguments, his Honour observed, had previously been dismissed by superior courts and were without merit. 

 

[10] Judge Shanahan noted the applicant's claim that cannabis had beneficial effects and that the drug was not dangerous as she used it medicinally. His Honour observed that this was no basis for overturning a finding of guilt. 

 

[11] Judge Shanahan reviewed the evidence before the magistrate. A valid search warrant was executed by police on the applicant's residence. Police found a small amount of green leafy material there. The material was later examined and a certificate was tendered stating that it was cannabis. Indeed, the applicant gave evidence that the cannabis was hers and that she used it for medicinal purposes. She also agreed she was the occupier of the premises. There was abundant evidence on which Magistrate White could properly convict the applicant of the charge. 

 

[12] Although the applicant claimed that she was confused at times during the trial, his Honour observed that she made the points she wished to make orally; gave evidence; and made submissions about her legal arguments. He considered it unsurprising that she had difficulty articulating her legal arguments because they were without merit and tortuous. As the evidence against her was overwhelming and confirmed in her own evidence, and as there was no unfairness in the way the trial was conducted, his Honour ordered that the appeal should be dismissed. 

 

[13] The applicant made oral submissions at the Court of Appeal hearing in a courteous manner. She read from a document which she later handed to the Court. She challenged the authority of this Court to hear her applications, claiming that it was not a lawfully established court and that, for constitutional reasons, her matters should be uplifted to the High Court of Australia. She stated that she had informed the Queensland Attorney-General of her arguments but that she had not informed other Attorneys-General of her application as required under s 78B Judiciary Act 1903 (Cth). 

 

[14] Although ordinarily s 78B(1) prevents a Court proceeding to hear a matter involving the interpretation of a constitutional question, notices under s 78B are unnecessary where the contention raised is plainly unarguable. As Toohey J explained in Re Finlayson: Ex parte Finlayson: "In terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution". (footnotes omitted) More recently, Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation cited Toohey J's observations with approval. 

 

[15] As I shall shortly explain, the applicant's contentions as to her constitutional argument are so clearly misconceived that it cannot be said they involve a matter arising under the Constitution. This Court can determine her applications even though she has not served s 78B notices on the Attorneys-General. 

 

[16] When I questioned the applicant about one of her submissions, she stated she was "just following directions given to me". She later said that "Alan" had helped her with her material. Mr Alan Skyring was in the back of the Court. She explained that she suffered from anxiety and was confused about dates and asked the Court to consult "Alan" if the Court wanted information which she could not supply. Mr Skyring at this point moved forward to address the Court but was quickly told that his assistance was unnecessary. He resumed his seat in the rear of the Court. It is clear from the transcript of these matters in the Magistrates and District Court and from the applicant's submissions in this Court that Mr Skyring has been present at some (if not all) of these hearings and has aided and encouraged the applicant in pursuing her appeals in which arguments were raised that he had previously raised unsuccessfully in this Court where Mr Skyring has been a frequent litigator: see for example Skyring v Commonwealth Commissioner of Taxation; Skyring v Australia & New Zealand Banking Group; Re Skyring; and Skyring v Lohe. Unfortunately it seems likely that his "assistance" to the applicant has added to her anxious and confused state and her financial difficulties about which she addressed this Court. 

 

[17] Mr Skyring was declared a vexatious litigant under the Vexatious Litigants Act 1981 (Qld) (repealed) on 5 April 1995. Under s 16 Vexatious Proceedings Act 2005 (Qld), orders under the repealed Act are taken to be orders under the current Act. It is of concern to the administration of justice that a vexatious litigant like Mr Skyring may be encouraging vulnerable people like the applicant to undertake unwinnable litigation and to pursue appeals which impose unnecessary costs on the community. It amounts to an abuse of process. It may be appropriate in like instances in the future, for the Attorney-General to consider whether an application should be made to permanently stay proceedings if it is thought that Mr Skyring may be acting in concert with another person in the institution of proceedings in Queensland Courts: see s 10 Vexatious Proceedings Act and Cameron v Peter D Beattie (in his capacity as Premier) & Ors; but cf Clampett v Kerslake (Electoral Commissioner of Queensland). 

 

[18] As Judge Shanahan identified, the applicant's contentions have all been aired in this and other courts before and have rightly been dismissed: see for example Sharples v Arnison; Skyring v Australia & New Zealand Banking Group Ltd; Re Skyring's Application (No 2); and Re Cusack. 

 

[14] In Re Skyring, Dawson J said: "It would, in my view, be an abuse of process to allow the applicant to relitigate a matter which has already been decided adversely to him". 

 

[16] See also Professor Anne Twomey's discussion of these arguments in "The Australia Acts 1986 Australia's Statutes of Independence". 

 

[17] Constitutional arguments specifically challenging the constitutionality of the Drugs Misuse Act on other bases have also failed: see, for example, R v Gorton and Till v Johns. 

 

[19] The applicant's arguments in this Court are as unmeritorious as those she mounted before Judge Shanahan. She has not demonstrated any error in Judge Shanahan's approach to her appeal. She should not be given leave to appeal from it. It follows that application CA No 96 of 2011 should also be refused.

Fertility and Privacy

'A, B and C v. Ireland: Europe’s Roe v Wade Still Has to Wait' ( Oxford Student Legal Studies Paper No. 14/2011) by Paolo Ronchi asks -

Does the European Convention of Human Rights (ECHR) include the right to abortion? Is there ECHR obligation for Member States to legalise or de-penalise abortion? Can the right to privacy enshrined in Art. 8 ECHR be interpreted as guaranteeing a right to abortion? The European Court of Human Rights (ECtHR) has never before had the occasion to rule directly on these issues. A Grand Chamber of the ECtHR has held 11–6 in A, B, and C v Ireland (application no.25579/05), final judgment 16 December 2010, that the ECHR plainly does not confer a right to abortion.

Ronchi comments that

The issue of balancing the right to life of the foetus against the rights of the mother was for the Grand Chamber strictly connected to the legal definition of the beginning of life, on which subject little consensus obtained, the effect of which must be a broad margin of appreciation. Consequently, and because of the supposed connection identified by the Grand Chamber between the two issues, this wide margin with respect to the definition “translates into a [wide] margin of appreciation for that State as to how it balances the conflicting rights of the mother” (at [237]).

The Court proceeded to the nature of the balancing carried out by Irish authorities between the applicants’ right to respect for their private lives and the rights of the foetus: given the lawful possibility accorded to pregnant women to get information on all options available, including abortion abroad, and to travel to another State to do so, the Grand Chamber did not consider the restriction on permitted grounds for lawful abortion to exceed the Irish margin of appreciation. The majority thus gave the Irish policy its imprimatur to the Irish “anywhere but here” policy.

In contrast to their division concerning the cases of A and B, the Grand Chamber agreed with unanimity on a violation of C’s right to privacy: her circumstances potentially fell into the exceptional category of abortion lawful in Ireland—abortion performed on the grounds of risk to the life of the mother. The Court earlier, in Airey v Ireland 2 E.H.R.R. (1979) 305 at [32], had held that Art.8 not only has a negative aspect, but also a positive one, imposing on the State positive obligations to ensure its effective respect. The Court considered it highly relevant that no effective legislative implementation of this article had followed since its approval in 1983. This uncertainty was compounded by the fault of modification of the Offences Against the Person Act 1861, which still was in force with its absolute prohibitions, and vague and ambiguous medical guidelines. The former contributed “to the lack of certainty for a woman seeking a lawful abortion in Ireland”; the latter did not provide “any relevant precision as to the criteria by which a doctor is to assess that risk” (at [253]).

This amounted, therefore, to a failure by Ireland to comply with its positive obligation to protect C’s right to private life. The Grand Chamber was quite terse on this point: once the State recognizes a right in its Constitution, as was the case with Ireland, it must not only respect it ostensibly, but also protect and fulfil it effectively. Though not quoted directly by the grand Chamber, the now classic statement in Airey v Ireland at [24] that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, seems to have leavened this part of the decision.

He concludes that -

after Tysiac v Poland 45 E.H.R.R. (2007) 42, extensively quoted in A, B and C, where the Court had come very close to recognising a Convention right to abortion, it was thought by many that Strasbourg was champing at the bit to make just that move. In point of fact, the Court in A, B and C held that “legislation regulating the interruption of pregnancy touches upon the sphere of private life”, which included “the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world” as well as a “person’s physical and psychological integrity” (at [106–07]). It would be a dull ear that did not detect how akin this reasoning is to that of Blackmun J’s majority opinion in Roe v Wade (at [152–53] of Roe). The Strasbourg Court was, however, not minded to interpret in A, B, and C the right to privacy as guaranteeing a right to abortion; not even the minority inclined to that view. The hopes of those waiting for a European Roe v Wade were, in other words, dashed.

e-Identities

The 21 page 'Governance Models for Interoperable Electronic Identities"' by Tobias Mahler in Journal of International Commercial Law and Technology (JICTL) comments that -

Current implementations of electronic identity in Europe are rather diverse; they include state-driven identity management frameworks as well as private sector frameworks and different forms of public-private collaborations. This diversity may represent a major challenge for the deployment of information society services addressed towards the European internal market. This raises the question: How can we achieve interoperability of electronic identities across Europe, and potentially beyond Europe’s borders? This paper argues that the interoperability of electronic identity could be governed by a multi-stakeholder governance framework that brings together different parties with interests in the provision and use of electronic identities. Such a governance framework could, for example, consist in designing and operating a portal with common functionalities that allows interoperable authentication across multiple domains and contexts. Inspiration for the governance of such a portal could come both from existing successful implementations of electronic identity and from multi-stakeholder institutions that have proven useful in Internet governance.

Mahler notes that -

It may be the case that existing eIDs in Europe are too heterogeneous to be incorporated in a single hub. However, this example illustrates fairly clearly that there are alternatives to creating a single and all-encompassing European eID if one wishes to facilitate interoperability in Europe. Rather than offering European citizens and others yet another eID (for European use), we should consider the alternative of governing authentication processes based on a selection of existing eIDs.

Of course, the model raises many new questions, such as who might establish such a portal, and how it should be governed. In my view, a governance framework for a potential European eID portal should go beyond the participative model selected in Norway and also encompass other stakeholders, such as eID providers, other intermediaries and perhaps also end-users and their representations in civil society organizations. Moreover, if the intention is to ensure eID interoperability also for non-governmental actors, the private sector should definitely be incorporated into the governance framework.

The advantage of the eID hub model is its potential openness, which could potentially be used to encompass not only European eIDs, but perhaps even allow sufficient flexibility to facilitate interoperability with other non-European eIDs in the future. At the same time it has to be acknowledged that the model also may involve new legal challenges related to, for example, compliance and liability.

Humbug?

I see that Central Queensland University is planning to offer a degree in chiropractic, perhaps - I of course jest - to be followed by a degree in homeopathy and then one on augury, astrology, phrenology and astral travel. Why not a unit in exorcism?

Those fields - disciplines, according to the true believers - all involve theories, albeit theories that are inconsistent with conventional science and that have not been validated through empirical research.

RMIT already offers a cutely-worded unit in energy medicine apparently delivered by a self-described "quantum psychologist" who is a fan of the akashic field that is derided elsewhere in this blog. Should a leading institution be teaching 'energy medicine', as distinct from dealing with it as a research subject?

A sceptic might be forgiven for wondering whether the willingness of Australian universities to embrace deeply problematical therapies and junk science is a function of a postmodern disregard for fact (or merely for common sense) and the pressure to bring in dollars in an increasingly competitive environment for academic funding.

Fin de siecle notions of subluxation (notably Palmer's absurdist theory that diseases were attributable to spinal misalignments rather than infections) and claims that spinal manipulation can cure ADHD or other disorders are interesting - not least for people interested in the psychology of belief - but it is disturbing to see what is dignified as 'complementary medicine' and 'alternative medicine' (homeopathy, reiki, therapeutic touch, remote healing and the 'non local mind', etc) being tacitly endorsed by Australian universities and regulators.

As a non-specialist, who hasn't undertaken the chiropractic degree but is unimpressed by some of the more extreme claims from chiropractic enthusiasts, I wonder why CQU isn't simply offering units in physiotherapy.

basket

The Australian Communications & Media Authority (ACMA) has released a 37 page report on industry self-regulation of food and beverage advertising to children on free-to-air commercial television [PDF].

The document reflects ACMA's undertaking in 2009 to monitor industry self-regulation of food and beverage advertising to children. Unfortunately, it quickly flicks the regulatory problem to the new Australian National Preventive Health Agency (ANPHA), an entity without enforcement powers and responsibilities.

ACMA indicates that the report covers "the operation of two key food industry initiatives developed in response to community concerns about junk food advertising to children" -

The Australian Food & Grocery Council’s Responsible Children’s Marketing Initiative (the 'AFGC Initiative') and the Quick Service Restaurant Industry's initiative for Responsible Advertising & Marketing to Children (the 'QSR initiative') have been operating now for 18 months. The ACMA had agreed to monitor these initiatives when it reviewed the Children’s Television Standards (CTS) [PDF] in 2009.

ACMA's findings are underwhelming, with the regulator stating that -

It is unclear whether the AFGC and QSR Initiatives have resulted in a real reduction in the level of children’s exposure to food and beverage advertising on free-to-air television, and

There is continuing community concerns around food and beverage advertising to children.

Who'da thunkit, even if you are working for what used to be tagged as the fast food vendors or purveyors of junk food.

ACMA goes on to state that -

Taking into consideration the limited research on the effectiveness of the industry initiatives, the limited evidence of the benefits of restricting food and beverage advertising and the absence of national standard nutrition criteria, the ACMA will not be moving to develop new television standards on food and beverage advertising to children.

The ACMA will continue to investigate complaints about advertisements during children’s programs, including food and beverage advertisements. However, the ACMA does not propose to conduct further monitoring of the RCMI and QSRI initiatives.

Indeed. ACMA goes on to state that -

The report notes the recently created Australian National Preventive Health Agency (ANPHA) and the key role it will play in monitoring food advertising and devising obesity prevention strategies in the future.

"As the broadcasting regulator, the ACMA reiterates that it is neither equipped nor resourced to make independent judgements on issues of preventive health" said ACMA Chairman, Chris Chapman. "The ACMA's view is that the ANPHA is ideally placed to inform and promote a whole-of-government response to the challenges of childhood overweight and obesity and looks forward to working collaboratively with the ANPHA on these issues wherever appropriate."

While the ACMA will not develop program standards on food advertising to children at this time, it will continue its role of administering the CTS and investigating complaints about prohibited advertising during children’s television programming periods.

Not my problem, and congratulations, you have inherited the "it's too too hard" basket?

As things stand there is no financial penalty for breaches of the industry initiatives or [Australia Association of National Advertisers, AANA] codes. The report notes the Obesity Policy Coalition comment that

In the event that the [Advertising Standards] Board upholds a complaint under the AANA or food industry codes there are very limited consequences for the advertiser. The Board ... has no power to force an advertiser to comply with its request: the system relies entirely on voluntary compliance by advertisers. No other sanctions apply.

... by the time a complaint is submitted, and a determination is made, a period of up to 9 weeks is likely to have passed since the advertisement was broadcast. … Even if an advertisement is withdrawn as a result of an ASB determination (or complaint), the time that will have passed means that any damaging impact on children will have already occurred.

As a consequence of the lack of effective deterrents for breaches, we are concerned that neither the AFGC or signatories to the QSRII are committed to complying with their codes.

Wandering Thumbs

Amid brouhaha over the predictable data breach at Telstra (now reported as exposing information regarding a million customers) it is useful to remember that data isn't only exposed online.

There has been less media attention this month to an exercise in security street theatre by IT security company Sophos, busy spruiking its malware solutions. Paul Ducklin, described as chief technology officer at Sophos (presumably the Australian arm of Sophos), purchased some 70 USB drives from RailCorp - the NSW transport state owned enterprise - in September this year. The drives were being auctioned by RailCorp - along with laptops, bags, umbrellas, thongs, jumpers, beanies, books and other items - as part of its disposal of unclaimed lost property, ie things left behind at railway stations and in RailCorp's trains. (Comments on the Australian Defence Dept's loss of a thumb drive are here.)

How better to get some publicity - and increase consumer awareness - than by buying a swag of pre-loved thumb drives that - quelle horreur - were duly found by Sophos to contain unencrypted personal information. (Sophos is reported as being "shocked when the auction price was nearly twice the average retail value of the USBs", which suggests the security company was after the story rather than stretching the corporate dollar by stocking up on drives at throwaway prices.)

Some 57 of the drives were functioning and reported as containing "troves of personal data including resumes, tax returns, photos and documents". Ducklin is reported as commenting that "We revealed a good deal of personal information about many of the people who lost the USBs, about their families, friends and colleagues".

RailCorp apparently disposed of laptops at the same time after wiping the hard drive on those devices. Such diligence is welcome, given the incident in 2005 where the NSW State Transit Authority auctioned 12 servers but - oops - failed to delete payroll and financial information, Sydney public transport passenger counts, ticketing system codes, incident reports and employee access PINs.

In responding to the current incident the NSW deputy Privacy Commissioner has reportedly "chastised" RailCorp. (There's no statement on the Commissioner's site or on that of RailCorp.)

The Commissioner reportedly stated that RailCorp should have wiped the USBs prior to selling in order to follow best practice.

By selling the information on the USBs they are deemed to be using it and they should delete the information.

They should not disclose the data without the consent of the person the data relates to.

I suggest that if the cost of wiping the USB drives is deemed to be too high, RailCorp should simply dispose of the drives on a secure basis rather than unleashing the tax returns, photos, university assignments, and other information into the world.