Diversion

The NSW Law Reform Commission has released its 462 page report [PDF] on People with cognitive and mental health impairments in the criminal justice system: Diversion. A second report will deal with issues of criminal responsibility, fitness to plead, the management of forensic patients and procedures relating to forensic samples.

This report is a comprehensive look at the opportunities to enhance diversion at all stages of the criminal justice system for people with cognitive and mental health impairments.  [It] is timely in that it coincides with the establishment of the NSW Mental Health Commission and the National Mental Health Commission. It is also contemporaneous with a number of other reviews, including the current review of the Mental Health Act 2007 (NSW) by the NSW Ministry of Health. 

The authors comment that

There are a number of over-arching issues that are important to this report. There is strong evidence  that people with cognitive and mental health impairments are over-represented throughout the criminal justice system. But the great majority of people with a cognitive and/or mental health impairment do not offend. The higher rate of offending does not arise from any simple relationship between impairment and crime, but from impairment together with a multiplicity of other factors, such as disrupted family backgrounds, family violence, abuse, misuse of drugs and alcohol, and unstable housing. 

Diversion of people with cognitive and mental health impairments generally involves them engaging with a range of providers of treatment and services that have a rehabilitative focus. The relationship between the criminal justice system (police and courts) and the service sector is crucial to effective diversion. Both are complex systems. Effective diversion relies on connecting offenders with the right services and maintaining that connection when problems arise. Understanding and communication between the criminal justice system and services is crucial for diversion to work well. Significant challenges include: the great multiplicity of agencies providing services; different disciplinary understandings; different perspectives on key issues; gaps in the availability of services; and problems of integrating service delivery for people whose needs are complex.

They characterise diversion as including:

• practices that seek to minimise contact with the criminal justice system, such as cautions, conferencing and other types of pre-court diversion 
• measures by courts to refer defendants to treatment and/or services that aim to rehabilitate the offender and prevent further offending, and
•  “problem solving courts” that combine referral to rehabilitative services with ongoing court monitoring of the defendant’s progress. 

They go on to consider the advantages and disadvantages of diversion.

Diversion can benefit both the offender and the wider community by addressing the causes of offending, and thus reducing offending behaviour. It can reduce involvement in the criminal justice system which may be particularly detrimental for people with cognitive and mental health impairments. There may be potential cost savings associated with diversion, for example reduction in costs of incarceration or hospital readmissions. Diversion may however be unsuitable for serious offences. It may net-widen. A person may make inappropriate admissions to access diversion. The requirement of diversion may be more burdensome than the consequences of being dealt with according to law. 

The Commission's assessment is that "diversion can be an effective means of reducing reoffending and producing better outcomes for people with cognitive and mental health impairments [but] diversionary schemes need to be carefully designed to avoid some of the potential drawbacks".

It notes that

 On the basis of available data, the representation of people with cognitive and mental health impairments in the criminal justice system is disproportionately high. This is true for police contact and for Local Court proceedings, though the data is indicative only. It is also true for people in custody, where we have better data. For example the rate of mental health impairment in prisoners appears to be more than triple the rate in the general population, although there can be significant variation depending on the mental health impairments concerned. From available data, there also appears to be an over-representation of people with cognitive impairments in custody. The level of over-representation of young people with a mental health impairment or a cognitive impairment in the juvenile justice centres is particularly high.

However, the paucity of data means the exact scale of over-representation is unknown. This lack of available, comprehensive and consistent data regarding the representation of, and outcomes for, people with cognitive and mental health impairments in the criminal justice system has made it very difficult for us to quantify the present deficiencies, in order to evaluate the potential impact of our recommendations.

We recommend that a working group should develop a strategy to ensure improved data collection and analysis, so that in future there will be a better foundation on which to make policy and to estimate the cost and impact of proposed changes

The report indicates that the definitions of cognitive and mental health impairment used in the criminal law are "inconsistent and outdated", so that the law "lacks a consistent and clear approach to defining cognitive and mental health impairment", resulting in"unnecessary confusion and complexity". The Commission  recommends two separate definitions of cognitive impairment and of mental health impairment, to be inclusd in the diversionary provisions of s 32 and s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) - the MHFPA  and in the context of bail and pre-court diversion .

In discussing bail the Commission notes that the Bail Act 1978 (NSW) provides for the use of bail as a diversionary tool under s 36A and comments that  s 32 of the MHFPA generally provides a sufficient framework. It recommends that s 33 be amended to make it clear that, if a person is taken to a mental health facility for assessment, a bail determination is not to be made unless the person is brought back to court following that assessment. It goes on to comment that

Unless people with cognitive and mental health impairments are first identified, and assessed, the criminal justice system cannot respond appropriately to them. NSW presently has an assessment service for people with mental health impairments, the Statewide Community and Court Liaison Service (SCCLS.) However this service is available in only 20 of 148 Local Court locations. We recommend the expansion of the SCCLS or other services that provide for identification, assessment and advice: to make them available state-wide and to make assessment services available in relation to defendants with cognitive impairments

Assessment and support services depend on referral. The people who identify and refer are police, lawyers, magistrates, court staff and others. These people need sufficient information to allow them to be effective referral agents. We recommend that the Department of Attorney General and Justice (DAGJ), in consultation with Justice Health, develop and distribute information that supports early identification of people with cognitive and mental health impairments, and referral where necessary.

Research has identified the key role played by Legal Aid lawyers in representing people with cognitive and mental health impairments. We therefore recommend the provision of particular training and supports for Legal Aid lawyers, to assist them to identify and refer clients with cognitive and mental health impairments.

In relation to  case management the report comments that

 Where the defendant is to be diverted to services that will deal with the causes of offending, those services must be identified and the defendant connected with them effectively. Problems arise frequently in making and maintaining connections with services, especially for those with complex needs. When problems arise a case manager who can resolve difficulties needs to be available. Presently, despite “treatment plans”, defendants do not connect with services, cannot find appropriate services, encounter problems and disengage. The current system for reporting noncompliance with treatment plans is ineffective. ... If a whole-of-government perspective is taken, we consider it is likely that the costs of this expansion will be offset by a reduction in offending, and other benefits.

In discussing crisis response for mentally ill persons the report indicates thsat police are empowered to take a person who appears to be mentally ill or mentally disturbed to a mental health facility under s 22 of the Mental Health Act 2007 (NSW) - those referrals account for 23% of all requested admissions to mental health facilities but 26%  are not admitted.

There are many reasons for this, including that the person does not fit the criteria for involuntary admission. However, numerous stakeholders expressed concerns that other reasons cause refusal to admit, such as the lack of available beds, or inability or unwillingness to deal with violent people. This issue also arises ... in relation to referrals by courts to mental health facilities.  We recommend that when a person is referred to a mental health facility under s 22 and is not admitted, police should be able to refer the decision to the Mental Health Review Tribunal for review, in accordance with proposals already under consideration by government. This option may not be used frequently, but will be available to police in cases of particular difficulty. Stakeholders also identified significant problems concerning the relationship between the NSW Police Force, NSW Health and the Ambulance Service of NSW. An agreement regarding roles and responsibilities has been subject to renegotiation for nearly five years. We recommend that the re-negotiation of the memorandum of understanding (MOU) be completed within 6 months, and that the NSW Mental Health Commission should monitor and report on the progress of finalising the MOU

With pre-court diversion ("particularly valuable for people with cognitive and mental health impairments as it minimises their contact with the criminal justice system") the Commission recommends -

 a statutory scheme providing police with a clear power to discontinue proceedings in appropriate cases in favour of referral to services. In our view, diversion should be available pre-and post charge, should not require admissions, should be available more than once, should not take the place of warnings and cautions and should be supported by procedures developed in consultation between key stakeholders. Police need support in identifying and assessing people with cognitive and mental health impairments. Where they divert a person, that person may already be in receipt of services or there may be an obvious framework for diversion. However, in other cases police need a service to which they can refer defendants to be assessed and a diversion plan developed.  ... The high level of police involvement with people with cognitive and mental health impairments justifies an increased investment in training, and we recommend that the NSW Police Force increase the training of Mental Health Intervention Team officers and, further, ensure that all police officers have received training that covers working with people with cognitive and mental health impairments and the operation of pre-court diversion

 Regarding diversion in the Local Court  the report notes that

NSW has “mainstreamed” its diversionary powers for people with cognitive and mental health impairment, making them available to all magistrates in the Local and Children’s Courts. Section 32 of the MHFPA is the main diversionary provision. We recommend a number of reforms to broaden the section’s scope and improve its operation.

The terms used to describe cognitive and mental health impairments in s 32 are now outdated and we recommend that the new definitions  be incorporated into s 32. This will extend the scope of the section to the full range of people with cognitive and mental health impairments. The current section gives no guidance to a court in deciding whether to divert. We recommend that s 32 include a non-exhaustive list of factors relevant to a decision to divert. Our intention is that courts should be prompted to consider relevant matters, but that their discretion should not be unduly fettered. A number of problems have been identified with s 32. First, it is under-used: about 1% of cases in the Local and Children’s Court are dealt with under s 32. Section 32 involves submitting a treatment plan. The challenges of producing a proper plan for defendants who have multiple diagnoses and complex needs are considerable and involve knowledge of the service sector. But this task is carried out by lawyers who usually have no expertise in the service sectors or in the requirements of a satisfactory plan. In addition, orders are presently limited to 6 months, and some stakeholders believe this is too short to be effective. The provisions relating to breach are ineffective and non-compliance is very rarely reported to the court. We heard from some stakeholders that these problems are barriers to diversion.

We make a number of recommendations in response to these problems. We have recommended in Chapter 7 that courts be provided with support to assist with assessment and case management of defendants, and to report on compliance with s 32 orders. These supports are central to the successful operation of diversion. 0.39 We recommend amendment of s 32 to increase and clarify the diversionary options available.

In discussing those options the Commission states that they are - 

• Option 1: discharge the defendant unconditionally. This may be appropriate where the offending is not serious and the defendant is not likely to reoffend. 

• Option 2: discharge the defendant on the basis that a diversion plan is in place. This option may be appropriate if the court is satisfied the defendant is motivated to engage with services. 

• Option 3: adjourn the proceedings with a view to later discharge, on condition that the defendant undertake a diversion plan and report to the court in relation to his or her progress in complying with the plan. This option provides for court monitoring of compliance with diversion. Such monitoring may be minimal and simply require a report back to court at the end of the order. Alternatively it may respond to key milestones in the plan. In other cases it may involve more intensive judicial monitoring through regular reports to the court. 

• Option 4: where the defendant meets the eligibility criteria, which include imminent risk of imprisonment, the court may refer the defendant to the specialist Court Referral for Integrated Service Provision (CRISP) list.

It recommends removal of the power under s 32 to discharge into the care of a responsible person, as  the provision is very rarely used, the role of a responsible person is ill defined, and service providers and family members are unwilling to take on the role.

In our view, a diversion plan could incorporate care responsibilities, where available and appropriate.

Diversion plans must set out a program of treatment and/or engagement with services and/or other activities. The plan must address those matters that appear to give rise, directly or indirectly, to offending behaviour. Depending on the individual, these may include services as diverse as psychiatric treatment, housing, counselling, social supports, drug programs, and educational activities. Diversion plans may be brief and simple documents in appropriate cases.

Where reporting to the court is required under option 3, a responsible reporter must be nominated. Where the CREDIT program is available, it will report to the court. In other cases the role may be taken on by a service provider, or a legal representative.

We recommend that courts have powers to amend plans during their currency, and the power to terminate early. On completion, the court may discharge the person or deal with the person according to law. We also recommend that the court should be able to extend the length of a diversion plan beyond 6 months for up to 12 months.

In discussing diversion in the Local Court the report notes that section 33 of the MHFPA (designed for people who appear in court who are acutely mentally ill) provides magistrates with the power to refer a mentally ill person to a mental health facility for assessment. ("A mentally ill person is someone who is suffering from a mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of that person is necessary whether for the person’s own protection from serious harm or the protection of others from serious harm.") Section 33  is used infrequently, withis a high rate of return to court. It is , and there may be limited numbers of such people.

There is presently a difference between the power of the magistrate to refer, which is confined to those who are mentally ill persons, and the authority of the mental health facility to admit, which extends to mentally ill persons and mentally disordered persons. A mentally disordered person is a person who do not have a mental illness, but whose behaviour, for the time being, is so irrational as to justify a conclusion, on reasonable grounds, that temporary care, treatment or control is necessary for the person’s own protection, or the protection of others, from serious harm. We recommend that courts should be able to refer for assessment those people who appear to be either mentally ill persons or mentally disordered persons

There is some confusion among stakeholders as to whether the person who is referred to a mental health facility can come back to court to be dealt with and, if so, in what circumstances. We therefore recommend amending s 33 to make it clear that it authorises both a final order or an interlocutory order, at the discretion of the court

We also recommended that the option of discharging the defendant into the care of a responsible person be repealed. One of the major problems reported to us with s 33 is that courts refer people who appear to them to be mentally ill persons to mental health facilities, but they are assessed as not eligible for admission and are returned to court (or discharged onto the streets). In some cases, when the person is assessed by a psychiatrist, they will not fit the definition of “mentally ill person” and will not require hospitalisation. However stakeholders told us that there are other cases where defendants are not admitted, despite being referred on the basis of clinical advice, or cases where defendants were repeatedly taken back and forth between court and a mental health facility in a state of acute ill health until they are ultimately admitted. Stakeholders suggested that the reasons for not admitting were sometimes related to resourcing problems. Stakeholders also expressed concern that some staff at mental health facilities believe that police or prisons are more appropriate to manage defendants who may be violent. To deal with this problem we propose that when a defendant is not admitted, the mental health facility must provide a short report to the court and that a court should be able to refer a refusal to admit to the Mental Health Review Tribunal for review.

Finally, we recommend that the interlocutory power under s 33 should be available to the Local Court in indictable matters

The Commission   notes that mental health courts or specialist lists have either established or proposed in Queensland, South Australia, Tasmania, Western Australia and Victoria. It considers that there is a strong case for the introduction of a specialist list in NSW to supplement our enhancements to s 32.

There is a great deal of stakeholder support (though not unanimous), and there is good evidence that such an approach can provide substantial benefits, including the reduction of reoffending. Although our recommendations in relation to s 32 will provide suitable diversionary options for many cases, there is a group of defendants in relation to whom a specialist list appears to be the appropriate response. We have given the list a name that describes what it does – Court Referral for Integrated Service Provision (CRISP). This list would operate in the Local and District Courts.

 A defendant should be eligible for the list if he or she:

• has a cognitive or mental health impairment 
• faces a serious prospect of imprisonment 
• is not contesting the facts that form the basis of the alleged offence, and 
•  has a CRISP list geographically accessible. 

Offences that are “indictable only” would be excluded from the list. In cases that are indictable triable summarily there would remain a discretion for the case to be rejected as not appropriate for the list. The list would operate in the manner of a problem solving court.

It would be informal and not be bound by the rules of evidence. When a defendant is admitted to the list a diversion plan would be prepared, and the defendant’s engagement with services monitored. The CRISP team would deal with any problems. The court would approve the diversion plan and any major changes to it. The defendant would report regularly to court. If the defendant does not comply with the plan, the normal response of the court would be to provide positive reinforcement to encourage compliance. The plan may be amended, for example to increase case management. Ultimately however, persistent non-compliance would mean termination of the defendant from the list. At this point the court would deal with the defendant according to law, either in the list or by transferring the case to the referring court.

Successful participation in the list will not entitle the defendant to discharge. It may be appropriate in some cases, for example where the defendant has repeatedly committed minor offences and the program has successfully dealt with the problem behaviour. In other cases participation in the program may persuade the court that a contemplated sentence of imprisonment should not be imposed, but that an alternative is appropriate. In any case, participation in the program will be taken into account if it is in favour of the defendant, but not if it is to the defendant’s detriment

 Regarding diversion in the higher courts the Commission notes that the District and Supreme Courts presently have more limited diversionary options than the Local and Children’s Courts.It recommends that diversion under s 32 and s 33 of the MHFPA be available to the District and Supreme Courts . Amendment of s 32 would provide that the court should take into account when deciding if diversion is suitable, the “nature, seriousness and circumstances” of the alleged offence and  that the services of the SCCLS and CREDIT should be available in those courts to support diversionary decisions .

The report notes that diversion is already a strong focus of the criminal law and procedure relating to young people but concludes that  pre-court diversion could be improved to take into account the situations of young people with cognitive and mental health impairments. Under the Young Offenders Act 1997 (NSW), the present limit of three cautions may cause problems for young people with cognitive and mental health impairments who may not understand that their behaviour is wrong or may have difficulty controlling it. The Commission recommends that it should be possible to exceed the three caution limit when it appears that the young person has a cognitive or mental health impairment, that the proposed scheme for adult pre-court diversion also apply to young people and that the Children’s Court should have access to case management and court support services along the lines of the CREDIT and MERIT programs, and that a government agency be allocated to lead the development of this service. It does not recommend "a specialist list within an already specialised Children’s Court".

Marriage by another name?

The Civil Unions Act 2012 (ACT) is intended to enable couples who are unable to marry under the Marriage Act 1961 (Cth) to "enter into a legally recognised relationship and ensures that even though a civil union is different to a marriage it is to be treated for all purposes under territory law in the same way as marriage".

The Act repeals 

the Civil Partnerships Act 2008 (ACT) and amends the following statutes -

• Administration & Probate Act 1929 (ACT)
• Adoption Act 1993 (ACT)
• Births, Deaths & Marriages Registration Act 1997 (ACT)
• Civil Law (Wrongs) Act 2002 (ACT)
• Corrections Management Act 2007 (ACT)
• Crimes Act 1900 (ACT)
• Discrimination Act 1991 (ACT)
• Domestic Relationships Act 1994 (ACT)
• Domestic Violence & Protection Orders Act 2008 (ACT)
• Duties Act 1999 (ACT)
• Evidence (Miscellaneous Provisions) Act 1991 (ACT)
• Family Provision Act 1969 (ACT)
• First Home Owner Grant Act 2000 (ACT)
• Guardianship & Management Of Property Act 1991 (ACT)
• Instruments Act 1933 (ACT)
• Land Titles Act 1925 (ACT)
• Legislation Act 2001 (ACT)
• Married Persons Property Act 1986 (ACT)
• Parentage Act 2004 (ACT)
• Powers of Attorney Act 2006 (ACT)
• Rates Act 2004 (ACT)
• Sale of Motor Vehicles Act 1977 (ACT)
• Testamentary Guardianship Act 1984 (ACT)
• Wills Act 1968 (ACT)
• Witness Protection Act 1996 (ACT)

and the Births, Deaths And Marriages Registration Regulation 1998 (ACT) and Adoption Regulation 1993 (ACT).

Why bother? 'Modern Marriage and Judgmental Liberalism: A Reply to George, Girgis, and Anderson' by Matthew Clemente in Journal of Law and Social Deviance (2012) 1-66 comments that

State by state, cantankerous debates about same-sex marriage continue to capture headlines. The outcome of these debates has not only changed the political landscape in United States but has also impacted public policy and legal theory. Moreover, the same-sex marriage debate raises a more fundamental philosophical question — why is the state involved in marriage in the first place? I argue that the best answer to this question is that marriage plays a vital role in modern Western democracies, habituating the character traits that are essential to effective democratic citizenship.

The standard liberal justification of same-sex marriage is fundamentally flawed since it is precluded from discussing the “good” of marriage. In their article “What is Marriage?”, Robert George, Sherif Girgis, and Ryan Anderson exploit this weakness. After demonstrating the inconsistencies of the standard liberal justification, George, Girgis, and Anderson offer their own conception of marriage which inherently precludes same-sex couples. After examining their argument against gay marriage, I argue that it is rooted in an untenable notion of what is essential to marriage. By utilizing judgmental liberalism, a slight alteration of neutral liberalism, I answer George, Girgis, and Anderson’s objections to same-sex marriage. The state ought to encourage same-sex marriage because marriage, at its core, is about fostering fidelity, monogamy, and lasting stable relationships. Because this social function applies equally to homosexual and heterosexual couples alike, gay marriage ought to be permitted and promoted.

Wall Street Personhood

'Occupy Santa Clara? Corporate Personhood Reconsidered' by Stephen Diamond comments that

The Occupy Wall Street Movement and the controversial Supreme Court decision in Citizens United have combined to bring back to public debate an issue long considered non-controversial: whether private corporations are legal persons. This paper argues that a complete understanding of the debate requires analysis of four distinct approaches to the characterization of the corporate form, including a reassessment of the Supreme Court’s 19th century Santa Clara decision. Liberal and left analysis of the personhood issue has been stymied by the assumption that the debate had long been settled, as suggested in the classic article on the Santa Clara case by the critical legal studies (CLS) figure, legal historian Morton Horwitz. This paper suggests that Horwitz’s analysis, while valuable, has critical flaws including a failure to recognize the impact of law and economics thinking on this topic. Any attempt to reassess personhood must take into account the underlying nature of capitalism, which the paper suggests has been problematic for the CLS school.

Diamond concludes that -

Despite the effort of conservative law and economics theorists to deconstruct the corporation out of existence in favor of freely contracting individuals, conservatives in actual seats of political power have continued to act as if the corporation is a real entity deserving of legal protection. Until Citizens United, perhaps the most striking case involving free speech for corporate entities was First National Bank v. Bellotti in 1978, when the southern reactionary Justice Lewis Powell wrote the majority opinion in another 5-4 decision. Powell tried to slide around the question of whether the corporation itself had speech rights by claiming that it was the speech not the entity that was being protected. Powell nonetheless cited Santa Clara for the proposition that the Court had long ago recognized corporations as persons and that simply because the speech in question comes from a corporation does not alter the Constitution’s protection of it under the Fourteenth Amendment. This is no less clever an approach than what Justice Field attempted when he tried to distinguish between the wealthy investors in the Southern Pacific Railroad and the corporation itself. Neither decision really fooled anyone. Powell, of course, had an agenda as ambitious as that of Justice Field. His impact was felt on affirmative action in Bakke as well as in a series of decisions that significantly weakened federal securities laws. 

Although it was completely unnecessary to his opinion, Powell, for good measure, reminded the litigants and corporate reformers that there could be no turning back the clock to the era when corporations were “creatures of the State” and thus “have only those rights granted them by the State.” This was also an attempt to dismiss the dissent of Chief Justice William Rehnquist, who made a valiant if lonely attempt to restore what Horwitz might call “old conservatism” to the Court by reviving the artificial entity theory of the corporation, where the business firm is viewed solely as a creation of the state and thus subject to that state’s regulatory authority. 

The dissent in Bellotti by Justice White, joined by Justices William Brennan and Thurgood Marshall, was rooted, if unconsciously, in the real entity view that took hold in the Progressive era. White noted that mechanisms inside the corporation had centralized power such that one could no longer find a reliable link between the corporation and the desires of its individual shareholders. The natural person element of the Field aggregation theory had indeed disappeared, even if one wanted to imagine the corporate entity now as a mere “nexus of contracts.” Corporate speech, White argued, is “not fungible with communications emanating from individuals” and thus must be examined carefully for the potential “threat” it poses to the “functioning of free society.” It is precisely this centralization of power in a market economy and its break with any realistic notion of genuine free association that must lie at the center of any attack today on the constitutional rights of corporations rooted in personhood. 

For the majority in Citizens United, the case was in essence a replay of Bellotti and they relied on Powell’s opinion to bolster their rejection of the restrictions on speech emanating from corporations. To the majority the social reality of centralized corporate power, standing apart even from shareholders who nominally “own” their corporations, was nonexistent. Justice Kennedy wrote, “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.” The homeless and the unemployed, in other words, are as free to amass money in the marketplace and to express their views as Exxon, Apple, or, for that matter, the non-profit Gates Foundation. Thus, Anatole France: “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.” 

It is true, of course, that not all corporations are as wealthy and powerful as Exxon. In fact, most are not, and most will fail and dissolve, using the convenience of corporate personhood to do so. Yet that is precisely the point. Not all corporations are the same and the current view of corporations as persons fails to distinguish among them. For the 99 percent of for profit and nonprofit corporations, constraints such as those examined in Citizens United may make no sense. But when it comes to the 1 percent who dominate the “marketplace of ideas,” it is hard to imagine a genuine democracy without such restraints. What might be considered an economically convenient mechanism can also be used to distort our democratic culture, which has long stood on the basis of recognizing the value of a diversity of views expressed by freely associating individuals. And corporations, as the dissent by John Paul Stevens in Citizens United reminds us, “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” 

Unfortunately, the dissent avoided explicitly any interest in a coherent theory of the modern corporation to underpin its claim. That weakens the political and legal potential in their opinion. It is precisely the need for a theory that explains the vast inequities of the modern corporate economy that is so great. The Occupy movement has performed a valuable service in putting that debate back on the table for public consideration.

Tweet Pleadings

'Occupy Wall Street Protester's Petition to Overturn Court Orders Requiring Twitter to Turn Over Tweets, Location Data & Other Information' - a pleading by US legal practitioner Emily M. Bass - offers a perspective on her representation of Occupy Wall Street protestor Malcolm Harris, whose prosecution was highlighted in this blog.

Bass comments that -

Malcolm Harris was one of 700 people arrested during a peaceful protest march in support of the Occupy Wall Street Movement. He was charged with one count of disorderly conduct for having blocked traffic. Allegedly in preparation for trial, the prosecutor served three subpoenas on Twitter Inc. for 3 1/2 months of information from Harris' social networking account. The D.A. sought two types of information: the contents of Petitioner's electronic communications (e.g., "tweets") and "location" information for the 3 1/2 month period. 

Petitioner moved to quash the subpoenas as violative of the First and Fourth Amendments, the New York Constitution, the Criminal Procedure Law and common law. After the Court held that Petitioner lacked standing to object to the subpoenas because they had been served on Twitter, Twitter moved to quash. The Court then rejected Twitter's challenges and upheld the subpoenas under the Stored Communications Act, 18 U.S.C. 2701 et seq. 

On August 20, 2012, Malcolm Harris commenced an Article 78 proceeding to overturn the Court's rulings. Twitter took a direct appeal on August 27, 2012. 

This is the Article 78 Petition I prepared on behalf of the #OWS protester and filed in the first proceeding. It raises and addresses significant constitutional, intellectual property, privacy, statutory and common law issues. 

For those who are interested in cutting-edge technology and cutting-edge law.

Conceptions

The Australian Government has released its 18 page response to last year's Senate report on assisted fertility.

The response [PDF] to the Senate & Legal Constitutional Affairs References Committee report into Donor Conception Practices in Australia indicates that

The report highlighted several areas of concern within the Australian community about the regulation of donor conception practices. Many of the recommendations in the report identified a desire for nationally consistent legislation regulating donor conception. The report also addressed concerns about consanguinity, importation of embryos and payments made to donors. The report also provided a comprehensive analysis of the record keeping practices of Assisted Reproductive Technology (ART) service providers. It recommended that there was a need for a nationally consistent method of maintaining and sharing information about donors, donor recipients and donor conceived individuals that will enable those concerned to access information, where appropriate, about their genetic history and relationships. ....

The Australian Government supports the need for the interests of donor conceived individuals to be protected but acknowledges that there is no constitutional power that would support a Commonwealth scheme to legislate comprehensively in this area. States and Territories are responsible for enacting legislation regulating donor conception practices in Australia.

It concludes that -

States and Territories looking to regulate the ART industry have the opportunity to make use of two significant national resources. One supported by the Australian Government through the development of the NHMRC ART Guidelines and the other by the Fertility Society of Australia, through the RTAC Code of Practice and the development of a robust accreditation system. The Australian Government encourages States and Territories, who have not already done so, to implement a legislative framework that will mandate compliance with the established accreditation and regulatory scheme. Using the RTAC accreditation process and the NHMRC ART Guidelines as the basis for legislative frameworks will ensure consistent approaches to donor conception across Australia. States and Territories also have the option of ensuring compliance with the regulatory framework through making provisions in their legislation for offences and penalties for ART service providers who do not comply with the national standards. In addition, individual Australians who are involved in ART procedures can assist in the protection of their interests and those of their donor conceived children by using the services of accredited facilities. In cases of non-compliance by accredited ART service providers, individuals are encouraged to avail themselves of the proper channels for making health related complaints, by contacting the Health Complaints Commissioner or equivalent in the relevant State or Territory.

The response to specific recommendations is -

R1 - that jurisdictions which do not already have legislation in place (Qld, Tas, NT and ACT), should  establish legislation to regulate donor conception in those jurisdictions. 

• The Australian Government supports this recommendation as consistent with recommendations by the NHMRC in the 2007 NHMRC ART Guidelines. States and Territories are responsible for the enactment of legislation in their respective jurisdictions. The Australian Government encourages those States and Territories that do not currently have legislation regulating donor conception practices to establish such legislation. The Australian Government also supports consistency of State and Territory legislation. Consistent legislation will ensure that donors, donor recipients and donor conceived individuals will have the same access to information regardless of which jurisdiction they are in. It will also discourage the practice of forum shopping for persons who wish to donate or who wish to use ART services. 

R2 - that the Australian Government pursue all available policy and political options, including through COAG and SCAG to ensure that nationally consistent legislation relating to donor conception is developed as a matter of priority. 

• supported in principle. The Australian Government does not have constitutional power to legislate comprehensively in this area to ensure that legislation is nationally consistent. 

R3 - that any nationally consistent legislation should include, at a minimum: a prohibition on donor anonymity;  a limit on the number of families a donor is able to assist;  rights of access by donor conceived individuals to identifying and non identifying information about their donor and siblings; and protection for the welfare and interests of donor conceived children. 

• supported in principle. 

R4 - in the context of the development of nationally consistent legislation relating to donor conception, the Australian Government and state and territory governments give consideration to how private donor conception arrangements can best be regulated to ensure the rights of donors, recipients, and donor conceived individuals are appropriately protected. 

• The Australian Government supports this recommendation in principle. The Australian Government does not have constitutional power to regulate private arrangements. 

R5 - The committee recommends that the Australian Government, through the Standing Committee of Attorneys General, do everything possible to ensure the establishment, as a matter of priority, of a national register of donors, and that such a national register should also include information about donor conceived individuals. 

• The Australian Government does not support this recommendation. The Australian Government does not have constitutional power to comprehensively legislate to create a national register, absent a referral of power from the States. 

R6  - that a national register established by the Australian Government and State and Territory governments should have a particular focus on: security arrangements;  privacy protections; and a clear articulation of the role of the body administering the register. 

• See Response to R5. The Australian Government supports the principle of the recommendation that registers established by State and Territory governments should have a focus on security arrangements, privacy protections and a clear articulation of the role of the body administering the register. 

R7  -  that each state and territory should put in place their own centralised register.

• supported in principle but a matter for States and Territories. 

R8 - that, in the establishment of state and territory central registers, consistency in approach to the granting of access to information held on those registers should be a matter of priority. 

• supported in principle but a matter for States and Territories. 

R9 - that a central register, either in the form of a single national register or a separate register in each state and territory, should operate according to the following principles regarding access to information: donor conceived individuals should be able to access identifying information about their donor, once the donor conceived person reaches 18 years of age, or such younger age as agreed by all states and territories; donors should be able to access identifying information about individuals conceived as a result of their donation only with the consent of the donor conceived person; donor conceived individuals should be able to access identifying information about their siblings only with the consent of those siblings; and donors, donor conceived individuals, and recipient parents, as well as close relatives of donors or donor conceived individuals, should be able to access non-identifying information about the donor or donor conceived person, as applicable (provided that where a donor conceived individual seeks information, the person is at least 16 years of age, or such younger age as agreed by all states and territories) 

• supported in principle but a matter for States and Territories. 

R10 - that, if after further consideration by the states and territories of the issue of retrospectivity, registers will not be retrospective, a national voluntary register or separate register in each state and territory should be established to allow donors who previously donated anonymously to agree to have their information recorded and disclosed to any individuals conceived as a result of their donation. 

•  supported in principle but a matter for States and Territories. 

R11 - that donors in private arrangements be encouraged to have their information recorded and disclosed to any individuals conceived as a result of their donation on a national voluntary register or separate register if such registers are established in each state and territory. 

• The Australian Government supports this recommendation in principle but notes that this is a matter for States and Territories. 

R12 - that any voluntary registers incorporate a DNA databank, to enable donors and donor conceived individuals to have their details placed on the register for possible matching, in circumstances where records relating to their identities have been destroyed. 

• supported in principle but a matter for States and Territories. 

R13 - that the states and territories jointly fund a campaign to widely publicise the establishment of either a national voluntary register or separate voluntary registers in each state and territory. 

• supported in principle but a matter for States and Territories. 

R14 - that the Australian Government review, within a period of two years after this report, the current regulatory framework for overseeing compliance by clinics and medical practitioners with the National Health & Medical Research Council Guidelines on the use of assisted reproductive technology in clinical practice and research, with a focus on: whether the regulatory framework is adequate to ensure compliance with the guidelines; whether sanctions applied to clinics for failure to comply with their obligations under the guidelines are sufficient; and whether a more comprehensive regulatory framework is required. 

• The Australian Government does not support this recommendation. 

R15 - If, following the review as set out in R 14, it is considered that the current regulatory framework for clinics and medical practitioners undertaking assisted reproductive technology procedures is not sufficient, the committee recommends that the Australian Government, through COAG and SCAG, work with the state and territory governments to develop a more comprehensive regulatory framework. 

• See response to Recommendation 14. 

R16 - Regardless of the outcome of the review described in RR 14 and 15,  that the Australian Government, in consultation with the Fertility Society of Australia, create a review mechanism (eg an Ombudsman-type mechanism or health complaint commission), that can be accessed by donor conceived individuals and parties undergoing assisted reproductive technology procedures, to investigate and address complaints against clinics, including when they fail to comply with their obligations under the National Health & Medical Research Council Guidelines or relevant legislation and regulation. 

• The Australian Government does not support this recommendation. States and Territories are responsible for regulating donor conception practices in their jurisdictions. They are therefore responsible for conferring complaint handling responsibilities on their own Ombudsman-type mechanisms to investigate complaints against clinics and their compliance with the NHMRC ART Guidelines and relevant legislation and regulation. 

R17 - that, except in circumstances where the parties have a particular ethnic background and it is difficult to obtain gametes or embryos from a person with the same ethnic background (or in any other similar circumstances), the importation of gametes and embryos from overseas donors should be banned in Australia. 

• The Australian Government does not support this recommendation. The NHMRC ART Guidelines do not currently support the proposed ban on the importation of gametes from overseas. See Recommendation 19. 

R18 - if a ban on the importation of gametes and embryos from overseas is not possible, the committee recommends that any gametes and embryos imported into Australia from overseas donors undergo the same requirements and procedures for use in donor conception as gametes and embryos donated in Australia, including screening and counselling requirements. 

• supported. 

R19 - that the Australian Government undertake a review of the National Health and Medical Research Council Guidelines to specifically address the rights of access to information of donor conceived individuals conceived with the use of gametes and embryos imported from overseas. 

• The Australian Government supports this recommendation. Paragraphs 6.1, 6.10, 6.11, 6.12 and 6.13 of the NHMRC ART Guidelines acknowledge the right to information of all those involved in ART procedures. The NHMRC ART Guidelines provide that clinics ‘must not use donated gametes in reproductive procedures unless the donor has consented to the release of identifying information about himself or herself to the persons conceived using his or her gametes.’ Para 7.1 identifies a similar right for donor conceived persons to knowledge about genetic parents and the existence of any genetically related siblings.  

R20 - that the Australian Government and state and territory governments work together, including through COAG and other appropriate national forums, to agree to a nationally consistent and permanent long-term solution to the management of records relating to donor conception, to ensure that records which identify donors, donor recipients, and donor conceived offspring, are appropriately preserved. 

• supported but a matter for States and Territories: management of health records is governed by State and Territory legislation. 

R21 Until such time as R 20 is implemented a temporary moratorium be placed on the destruction of all records held by government agencies, doctors, clinics, and assisted reproductive technology providers that identify donor conception treatment procedures undertaken by donors and donor recipients. 

• supported in principle; the regulation of health services and health records including data collection and mandatory record keeping requirements is a matter for States and Territories. 

R22 - that the prohibition on payments for donations of sperm, oocytes or embryos in Australia should be maintained. 

• supported. 

R23 - that donors should continue to be able to be reimbursed for 'reasonable expenses' incurred in relation to their donation. 

• supported  

R24 - that the Australian Government, in consultation with state and territory governments and the Fertility Society of Australia, develop more detailed guidelines on what constitutes 'reasonable expenses' for which donors can be reimbursed. 

• noted 

R25 -  that: counselling should be mandatory for donors and donor recipients prior to undergoing a donor conception procedure; donors and donor recipients should be able to elect to receive counselling on the donor conception process and its consequences from a counsellor independent of the fertility clinic in which they are undertaking treatment; parents of donor conceived individuals should have access to counselling following the birth of their child, to equip them to be able to tell their child about their conception and to support their child in dealing with any self-identity issues that may arise; and donor conceived individuals should have access to counselling as they mature and, in particular, when making contact for the first time with their donor or half-siblings. 

•  supported in principle. The Australian Government encourages States and Territories to legislate to require ART service providers to maintain an RTAC licence which in turn will require ART service providers to comply with the NMHRC Guidelines on counselling of persons involved in ART procedures. 

R26 - that State and Territory governments, in consultation with the Fertility Society of Australia, should give consideration to funding the provision of counselling for donors, donor recipients and donor conceived individuals following the birth of donor conceived individuals. 

• noted; a matter for States and Territories and the Fertility Society of Australia. 

R27 - that State and Territory governments, in consultation with the Fertility Society of Australia, should develop guidelines or requirements to ensure that counsellors providing counselling to donors, donor recipients or donor conceived individuals have an appropriate understanding of the issues involved with donor conception. 

• noted; a matter for  States and Territories and the Fertility Society of Australia. 

R28 - that State and Territory governments should commission research to ascertain the numbers of individuals born through donor conception in their respective jurisdictions and that, once more accurate data is obtained, further research should be conducted in relation to the risk of consanguine relationships among those people. 

• noted; a matter for States and Territories.

R29 - that each donor should only be able to assist up to a maximum of four families (in addition to their own) in Australia. 

• noted; a matter for States and Territories.

R30 - that the issue of limits on donations should be reviewed by the states and territories, in consultation with the Fertility Society of Australia, once further evidence becomes available about the importance of forming a strong sense of self-identity for donor conceived people and the risks of consanguine relationships. 

• noted; a matter for States and Territories.

R31 - that clinics and medical services should amend the consent forms which are signed by donors, to ensure that consent is given to the sharing of information with other clinics and medical services in the same jurisdiction and in other jurisdictions in Australia. 

• noted; a matter for States and Territories.

R32 - to the extent that the states and territories have not already done so, birth certificates of donor conceived children should be notated so that when they apply for a birth certificate over the age of 18 years, they can be provided with additional information about their donor conception circumstances if they choose. 

• noted; a matter for States and Territories.

Therapy

If prayer, cold showers and ECT doesn't work there's always castration?

The Medical Council of NSW Professional Standards Committee (PSC), in responding to a complaint made to the NSW Health Care Complaints Commission, has censured a Sydney doctor for prescribing cyprostat - dubbed chemical castration - to a fellow member of the Exclusive Brethren Church on the basis of that member's homosexuality.

The PSC's findings [PDF] under the Health Practitioner Regulation National Law (NSW) are worth reading, both for the handling of a difficult area of law and for an insight into the stance of some practitioners - and some religious sects - regarding same sex affinity.

The Commission indicates that it

recently prosecuted Dr Mark Christopher James Craddock, a general practitioner and radiologist, before a Medical Professional Standards Committee. The prosecution resulted from a complaint by a patient about Dr Craddock’s treatment of him. Both were members of the Exclusive Brethren church and the patient consulted Dr Craddock in relation to his homosexuality. 

The Commission argued that Dr Craddock was guilty of unsatisfactory professional conduct in that he failed to provide appropriate medical management of the patient’s therapeutic needs by:

• failing to physically examine the patient or take a medical history 

• failing to refer the patient to a counsellor or psychologist 

• prescribing cyprostat (a drug used to treat prostate cancer or to manage sexual deviation by reduction of testosterone), in circumstances which were not clinically indicated 

• failing to discuss side effects of the drug 

• failing to organise appropriate follow up. 

The Commission also alleged that Dr Craddock failed to observe appropriate professional boundaries by consulting with the patient at his home rather than his surgery. 

Dr Craddock admitted most of the particulars of the Commission’s complaint, and that he was guilty of unsatisfactory professional conduct. 

In its decision of 23 August 2012, the Committee ordered that Dr Craddock be severely reprimanded and that conditions be placed on his registration, including that he:

• only practice in the field of radiology; 

• only prescribe medication in his place of practice as part of radiology treatment, other than in emergency situations.

Confused or captured?

Yesterday's newspapers reported that the national Attorney-General has apparently done another backflip on the controversial proposals for mandatory traffic data retention. Having disavowed her earlier support for retention she's now back to singing the AFP and ASIO song.

It's confusing, to say the least, and suggestive that an opportunistic and uninformed minister has experienced bureaucratic capture.

In her keynote Security in Government speech yesterday afternoon the A-G indicated that

Another area the Government is working hard in, is the area of privacy. 

This Government has taken active measures to provide a robust, predictable and transparent privacy framework that all Australians expect. 

Reforms to the Privacy Act will enhance the protections already in place to ensure that, regardless of changing technology, personal information remains secure. You should also be aware that the proposed national security reforms that have received significant media coverage also propose a strict privacy regime that ensures information is only used when necessary and used according to the law. 

But there’s more to this story. 

To keep pace with the online environment, we also need to make sure our police, security and intelligence professionals are properly equipped to do their work. That’s why I have referred this package of national security reforms to the Parliamentary Joint Committee on Intelligence and Security. 

Key areas for consideration include:

• A modern regime for lawful access to telecommunications to ensure that vital investigative tools are not lost as telecommunications providers update their business practices and begin to delete data more regularly and more Australians communicate online in a wider variety of ways 

• Whether the Government needs to obligate the Australian telecommunications industry to protect their networks from unauthorised interference because more is being done online than ever before 

• An authorised intelligence operations scheme for ASIO officers – so that ASIO officers are afforded the same protection from criminal and civil liability for authorised operations as AFP officers are afforded now.

I want to strike a balance between ensuring we have the investigative tools needed to protect the community and individual privacy. This includes protecting individuals from activities that deeply affect their privacy, including hacking and identity theft. 

As you will be aware, there has been a lot of press coverage about one component of the reforms – and that is data retention. 

Many investigations require law enforcement to build a picture of criminal activity over a period of time. Without data retention, this capability will be lost. 

Many of you will recall the disturbing murder of Cabramatta MP John Newman in Sydney in 1994. Call charge records and cell tower information were instrumental in the investigation and subsequent conviction on Phuong Ngo. These records allowed police to reconstruct the crime scene. 

The intention behind the proposed reform is to allow law enforcement agencies to continue investigating crime in light of new technologies. The loss of this capability would be a major blow to our law enforcement agencies and to Australia’s national security. 

Apart from data retention there are a number of other aspects to the proposed reforms, focussed on modernising our laws. 

Gone are the days when we relied on landline phones, the odd fax or two and mail to keep us all connected. Smart phones allow us to engage with people in our workplace and across the world. 

Criminals and terrorists have also benefited from this leap in technology. Our police and national security agencies must be backed by solid legislation, to ensure we are all protected and that criminals can be prosecuted. 

And it’s not only about strangers contacting your kids on the internet. 

It’s also about protecting the layers of hidden technology driving society like power, water and transport, banks and hospitals. 

Another part of the reform focusses on the management of these security risks in the telecommunications sector. Telecommunication networks are critical infrastructure that hold personal data and is an increasingly attractive target to unwanted intrusion. 

And, our process is open. 

Unlike the Howard Government, I didn’t want to blindside the Parliament and the Australian people by introducing national security reforms into Parliament and rush them through without good advice and public scrutiny. 

The Government is putting all options on the table so the Australian public, experts and politicians can engage in this important national debate. 

That process has already started with more than 170 submissions from people and organisations of all walks of life having their say. 

This will ensure the Government has advice from the experts and will be informed by community views, before making final decisions on these important reforms. 

I do want to reaffirm the intention of these reforms. We cannot live in a society where criminals and terrorists operate freely on the internet without fear of prosecution. We cannot allow technology to create a ‘safe haven’ for criminals, or a ‘no go’ zone for law enforcement. 

But, this does not mean unfettered access to private data either. 

What it does mean are carefully drafted, tested and oversighted national security laws – and this is what I’m focussed on delivering.

The reality is, alas, that the Government's proposals have been conspicuously short on detail, so Ms Roxon's preening about transparency is disingenuous. The proposals have been criticised by observers such as myself, by bodies such as the Law Institute of Victoria and by government agencies.

The Office of the Victorian Privacy Commissioner for example commented that

The Australian Government‟s Discussion Paper proposes amendments to existing legislation and additional proposals, both of which threaten to have an adverse and significant effect on the privacy rights of individuals across Australia. This submission considers that, in general, the introduction of intrusive powers suggested in the Discussion Paper fails to achieve those tests of legitimacy, necessity, proportionality and effectiveness. .... 

Preserving freedoms under law is part of what it means to guard the national security of a democracy. To diminish freedoms unnecessarily or disproportionately makes the nation insecure. 

Secret policing, covert searches, surveillance, information that cannot be tested for accuracy, closed decision-making, absence of independent scrutiny of government agencies: these are all hallmarks of systems of government that democratic nations tend to want to secure themselves against. 

Where any such measures are adopted by democracies, they are adopted reluctantly because they are an aberration from the norm, which is freedom and democratic governance. The norm is accountable policing; minimal and overt search, seizure and surveillance; and a presumption of open government, with necessary, clearly defined exemptions subject to independent review. 

The security of the Australian nation’s way of life depends on these norms being preserved. ... Fear can make us welcome what should be only reluctantly and warily tolerated. The measures [in the Bill] are an unwelcome necessity for a democratic society that prizes advocacy, dissent and diversity. They ought to be viewed cautiously, their necessity queried rigorously, and the safeguards against their misuse built carefully and applied scrupulously.

The Commissioner's submission to the PJCIS inquiry [PDF] commented that -

It is axiomatic that technology has advanced to such an extent that the telecommunications laws drafted in the 1970s can be considered outdated. However, when revising these laws, the goal should not be to lower protections contained within, but rather to standardise and enhance existing protections irrespective of the method of communication (that is, to make the laws technologically neutral). The terms of reference in the Discussion Paper state that this is one aim of the proposals. To that end, I support changes to accomplish this. 

However, many of the suggested amendments go far beyond this approach. The terms of reference note that the Committee should have regard to whether the proposed responses contain appropriate safeguards for protecting the human rights and privacy of individuals and are proportionate to any threat to national security. While I acknowledge that many of the proposals in their current format are only considerations, it is my view that many of the proposed changes in the Discussion Paper exceed what is necessary to achieve appropriate balance between national security and other human rights such as privacy. .... 

To access a third party‟s computer which has no connection with the target is extraordinarily broad and intrusive. These are powers usually characteristic of a police state. Adversely impacting the privacy of an individual (the third party) should only be permitted in the most extreme circumstances as a „last resort‟ when all other methods have been exhausted. Furthermore, the power to alter (rather than „access‟) a third party computer should not be permitted. 

Even with such safeguards and accountability mechanisms (which are not detailed in the Discussion Paper), I cannot support a measure that could severely diminish the privacy of individuals and could cause a chilling effect on the way that individuals communicate and use technology. .... 

The proposed data retention scheme, on which the Government is “expressly seeking the views of the Committee”, is perhaps the most controversial and concerning of the proposals in the Discussion Paper. The scheme would be “tailored” and (presumably) require carriage service providers (CSPs) and internet service providers (ISPs) to retain data from users for use by intelligence agencies to predict crimes and terrorism offences. 

As noted above, this proposal is characteristic of a police state. It is premised on the assumption that all citizens should be monitored. Not only does this completely remove the presumption of innocence which all persons are afforded, it goes against one of the essential dimensions of human rights and privacy law: freedom from surveillance and arbitrary intrusions into a person‟s life. 

While the Government appears to have already withdrawn its support for the proposal, it is necessary to examine the issues. It would appear that public support for this type of proposal is largely absent. As noted in the introduction to this submission, for there to be any extension of intrusive powers, such powers should be legitimate, necessary, proportionate and effective. I fail to see how the proposal achieves any of these. Collecting the data of all Australians does not appear proportionate to the risk of terrorism, nor is it likely to be effective in stopping terrorist acts (described below). Like any information system, would-be criminals and terrorists will either find a way around the technological limits (such as using a Virtual Private Network, encryption services, or an anonymity network such as Tor), or move communications to other non-electronic channels. 

The detail in the Paper is scarce. Accordingly, there are multiple unanswered questions:

a. Why has two years been chosen as the appropriate time period for data retention? Is this time period particularly significant for law enforcement? Two years appears arbitrary and without justification. 

b. Will it involve actual collection of raw data or merely data relating to what Internet Protocol/web addresses a user connects to? If the former, how will the data be stored, given it is likely to be prohibitively expensive and arguably technically impossible for internet service providers to do? If it is the latter, which would be far less encompassing and of limited utility in comparison to raw data, how does this achieve the goal of stopping terrorist attacks? (For example, if only web access was recorded, and terrorists were conversing on Facebook – how would knowing a user had visited Facebook stop a terrorist attack?) 

c. How will the data be secured? Retaining the data would create a massive security risk if an ISP suffers a breach of security, including a significant risk of identity theft. The immense amount of data would also create an incentive for hackers to view ISPs as a target. Unlawful access of this data could cause extensive privacy concerns, given the data is likely to contain a wealth of personal information, including potential online financial transactions. 

d. Who will have access to the data? The proposal clearly anticipates ASIO/law enforcement access; however, the ISPs that collect the data will also have access. How will employees of CSPs/ISPs be prevented from accessing what is likely to be an extremely valuable, if not tempting, data source? 

e. Will there be a standard format in which the data is required to be kept? How will each CSP/ISP ensure that the data is consistent across all services so that it can be data-mined? 

f. How will the information be „linked‟ to a particular person? If multiple people use one computer, how will the system determine which user is which (clearly necessary to determine if a law has been breached)? How will agencies ensure accuracy?

These questions need to be both considered and answered before a genuine debate can be entered into.

Bureaucratic convenience should not trump law.

Anklets

Tagging victims rather than offenders? Today's SMH reports that incoming NSW prisons boss Peter Severin

wants more electronic monitoring of high-risk prisoners and is exploring the use of satellite tracking devices for use in domestic violence situations to warn women of an unwelcome approach. 

Mr Severin, 56, who replaced Ron Woodham as the Commissioner for NSW Corrective Services this week, believes electronic monitoring ''can be very effectively used for controlling offenders in the community both at the end of their sentence but also on bail''. 

Mr Severin said he had been investigating a system by which domestic violence victims were fitted with a receiver. "If the perpetrator comes within a certain radius … it sets off the alarm", he said. "I'd like to think that we across justice really explore the use of that type of technology far more intensely. We do use GPS here [in NSW] but I understand it is first generation." 

The Police Commissioner, Andrew Scipione, recently said the electronic tracking anklet devices were totally unreliable after the accused murderer Ron Medich was allowed to stop wearing one in June. 

But Mr Severin said the latest generation of devices were more advanced.

The same newspaper only days earlier reported that the company

responsible for the electronic monitoring of serious criminals and providing security around prisons has failed to complete its state government contract. Internal government documents obtained by the Herald reveal that ATMAAC International asked to break its contract with Corrective Services NSW in May because it was in financial difficulty.  

The company, which was engaged to provide armed perimeter security for maximum security jails including Long Bay and Goulburn, wrote to the Attorney-General, Greg Smith, asking to trade out of its contract. 

The company also used electronic tracking anklets of the kind that monitors about 20 of the state's worst sex offenders. 

The NSW Police Commissioner, Andrew Scipione, recently described the devices as ''totally unreliable'' after the accused murderer Ron Medich was allowed to stop wearing a GPS tracking device in June. 

In a letter dated July 31, Mr Smith's department warned the director-general of the Department of Finances & Services, Michael Coutts-Trotter, that if ATMAAC was unable to continue delivering its prison security services ''there is both an unacceptable security risk to CSNSW [Corrective Services NSW] operations and an adverse financial risk if CSNSW is required to resume providing those services''. The letter from the director-general of the Attorney-General's department, Laurie Glanfield, said GEO Group Australia had been identified as an alternative service provider. 

The former director-general of Corrective Services NSW, Ron Woodham, and Mr Glanfield had agreed to a recommendation seeking approval to negotiate with GEO Group in late July. 

They said there would be an ''adverse financial risk'' if the Corrective Services NSW was required to resume providing the prison security services. 

The correspondence repeatedly warned of the risk of adverse media attention about ''the failure of a government contract''. 

Stewart Little, a senior industrial officer for the Public Service Association NSW, said the failure of the government contract with ATMAAC had made a ''mockery of the tendering process''. 

He said his association had not been informed of the new arrangements beginning today. 

Mr Little said it was disturbing that responsibility for electronic monitoring of prisoners convicted of serious crimes has been left to private contractors instead of Corrective Services NSW.

Never fear, tracking is in safe hands?

Registers

'The Cape Town Convention’s International Registry: Decoding the Secrets of Success in Global Electronic Commerce' (University of Washington School of Law Research Paper No. 2012-11) by Jane Winn comments -

The International Registry, established pursuant to the Cape Town Convention on International Interests in Mobile Equipment, is a new global electronic commerce system for recording interests in aircraft equipment. Other examples of global electronic commerce systems include the airline computer reservation system, the SWIFT financial network, and the credit and debit card networks. The International Registry may be the most successful global electronic commerce network ever built in terms of the speed with which it was developed and implemented, its adoption rate, and the dearth of controversy surrounding its operation. This paper will identify some of the factors that have contributed to its remarkable success, and note how the absence of some or all of these factors has limited the success of other global electronic commerce systems. While some aspects of the Cape Town Convention - such as notice filing and creditor self-help rights - may have been controversial, its electronic commerce framework has attracted much less attention. The real “driver” of the International Registry’s success is the aviation industry’s interest in a more efficient aircraft financing regime - the design of the International Registry is a secondary factor that “enables” the realization of the primary goal. Another important contributor to the success of the International Registry is its tight integration into an international “hard law” system rooted in national property rights. Use of the International Registry is mandatory for any party wishing to enjoy the benefits conferred by the Convention. The electronic commerce dimensions of the International Registry evolved organically together with the property rights dimensions, as a result of CTC provisions that are both technology neutral and technology promoting. The governance system for the International Registry has proven to be flexible and dynamic in adapting to the needs of stakeholders, as well as stable. No other global electronic commerce systems have benefited from such a wide array of institutional factors favoring their success.