Grounded

In Australian Competition and Consumer Commission v Flight Centre Limited (No 3) [2014] FCA 292 the Federal Court has made declarations and ordered that Flight Centre pay aggregate $11 million penalties  for repeatedly attempting to enter into anti-competitive arrangements with three international airlines.

The Australian Competition & Consumer Commission indicates that Flight Centre sought to eliminate differences in the international air fares offered to customers.

Last year in Australian Competition and Consumer Commission v Flight Centre Limited (No 2) [2013] FCA 1313  the Court found that Flight Centre

• competed with international airlines for the retail or distribution margin on the sale of international air fares and 
• had sought on six occasions between 2005 and 2009 to prevent certain airlines from undercutting it on these air fares
• had attempted to induce an anti-competitive arrangement to eliminate differences in air fares so as to maintain Flight Centre’s margins on each of those six occasions. 

It  found that Flight Centre’s conduct, extending over a  four year periods, formed part of

a concerted pattern of reactive corporate conduct by Flight Centre, reactive to a threat it perceived to be presented by the direct retail offering by airlines of air travel at fares it could not offer to retail customers, as opposed to a series of unrelated, isolated, idiosyncratic aberrations [with] the aggravating, adverse consequence of denying a would-be passenger a lower fare for air travel which the airline supplies. 

Logan J stated that he considered the emails sent in 2009 by Flight Centre Chief Executive and Managing Director Graham Turner evidenced “the most blatant of all the charged attempts to induce.”

ACCC Chair Rod Sims commented that

The ACCC took this action because it was concerned about the potential effect of Flight Centre’s conduct on competition and its ultimate impact upon the prices available to consumers.

The Court’s finding that Flight Centre’s conduct attempted to eliminate differences in the international air fares offered to consumers demonstrates the ACCC’s concern was well-founded. 

In the current judgment Logan J stated that

there is no doubt in the present case that commercial profit was the “driver” in Flight Centre’s contravening conduct. Further, it is the nature of such conduct that it is not engaged in in public. Its detection is almost invariably difficult and its investigation and related litigation involves the allocation of considerable public resources.

Archives

'Authority in the Archives' by Paul Halliday in (2014) 1(1) Critical Analysis of Law: An International and Interdisciplinary Law Review offers

a critique of the sensory deprivation under which legal studies normally operate by exploring how material forms shape law’s substance. Archives and the objects in them used for storing precedents have a history that we must understand if we are to ascribe meaning and authority to the texts they contain. Thus the images here do not simply illustrate propositions; they raise and answer questions about how physical forms constrain what is knowable as law. We can see this by studying practices in the eighteenth-century English court of King’s Bench, and especially the manuscript precedent books made by that court’s clerks. Examining one case — of the liberal campaigner, John Wilkes — we can watch clerks shaping authority as they used indexing tools of their own making to find the crucial precedents. Those same clerks then turned the case into a precedent by storing the results in the archive over which they were masters.

Halliday comments

Precedents matter. A nineteenth-century clerk in the Crown Office of the Court of King’s Bench appreciated this as he jotted Shakespeare’s lines into the front of his manuscript precedent book. That book provided clerks in his office with a great collection of examples. But it was only one of many such custom-made books serving as guides to the contents of other books, and to thousands of rolls and files he and his companions held in their care. Those records remind us that precedents exist as things. We have to store them; if we want to use them, we must find them again.

What follows is an exploration of the stuff of law: the physical objects and procedures for storing, using, and finding precedents to generate legal authority. In the eighteenth century, that authority pronounced itself in the voices of people called justices. But their voices could not have spoken authoritatively without the work of court clerks in an archive those clerks created and controlled. It was they who found the authorities; it was they who, once new authorities were made, put them back into the archive where they might be found again.

As Frederick Schauer has put it, “law is, at bottom, an authoritative practice,” one resting on citations. When Shakespeare had Henry VIII ask for a precedent, and when a court clerk two centuries later noted that line in one of his precedent books, they were both saying, “give me a citation.” They demanded textual and thus physical evidence of the previous thinking of some thought or practicing of some practice to justify acting again according to the same thought or practice. Because citation is “intimately connected with the authoritative core of the idea of law,” and because citations must remain to us in some physical form, law is not at bottom an authoritative practice; it is an archival one. And archival practice, like other legal practices and ideas, has a history. If we do not understand that history, we cannot hope to understand law and the authority claimed whenever anyone attempts to pronounce what is law.

Realizing this matters as much as the precedents themselves. How law as an archival practice was and is conducted shapes what law is and will be. Understanding the people who conducted this practice forces us to think again about where and how authority is made. It is easy enough for a modern justice to write the words, “Lord Mansfield wrote …” as he attempts to make his own authority out of Mansfield’s. But it is not entirely clear how his lordship came to write the ascribed words 250 years ago and thus what it might mean that he did so (or did not). Upon closer examination, we will find that authority, because it arises from an archive and citations to the archive, is made by a community of actors rather than by the exalted individual on whom both our legal histories and our legal arguments dwell.

Given this, how we write the history of legal ideas and the ways we employ them in legal problem-solving today must be reconceived from the archive up. The main approach to the history of legal ideas is fundamentally biographical: we line up ideas by lining up a series of utterances made by identifiable individuals—usually justices, sometimes the authors of treatises we accord canonical status. Rather than work in this monodimensional mode, I want us to do prosopography: to work from a collective biography and a set of practices of a community whose members created and mastered the archive out of which authority was, is, and must continue to be made. Borrowing an insight from Steven Shapin, we must appreciate “the epistemic role of support personnel” whose work has been “rendered invisible” in legal analysis and legal history “by positing a solitary knower as the sufficient maker” of authority. Peering behind that solitary figure, we discover that legal authority, like scientific knowledge, “is produced by and in a network of actors.” In the eighteenth century, justices rarely gave much sign of their place in that network, so wider contributions to authority have been overlooked. If we look hard, we can see the network in action: we can begin to consider the many ways that the role of clerks in the archive should force us to reexamine our own citation practices, whether we write law’s history or attempt to write its future.

To do this, I want to examine eighteenth-century practices in the archive of one English court, the court of King’s Bench. We will look to this period because two key developments intertwined then to transform the meaning and purposes of precedent and its role in generating authority. The first concerns judicial understandings of precedent. Over the course of the seventeenth century, English courts had come to place a greater reliance on the evidence of earlier cases — on examples — to determine cases coming before them. But only in the later eighteenth century did this practice begin to gel into habits and doctrines by which judges felt themselves directed or bound by such earlier cases. Second, this conceptual development was causally related to another development on a front we typically overlook: clerical practice, archival practice. It was the clerks who literally made the precedents by turning them into things: into words inked onto pages and rolls. It was they who made precedents by making it possible to find those same things again as needed. And it was they who made records into an archive.

Our traditional focus in the history and philosophy of law and its practices is on words. Reasonable enough: the law is made of words. But our obsessive attention to words causes us to miss something of vital importance: the law is also made of things. We must examine things closely to see this, and to see how the material forms by which law persists in a world of embodied beings controls what is known and knowable — what has been and will be authority.

We will thus proceed from ideas to the objects by which we hold and transmit ideas. We will move from generality to specificity, from law to history, from claims about the nature of precedent and authority and archives as theorized phenomena to temporally situated practices. We will go into the archive to see what is there. The images we will examine below do not illustrate propositions; they generate them. Looking at them should remind us of the sensory deprivation within which most accounts of law’s work operates. In the end, we will resolve upon a single case. By circling inward to look with ever-greater granularity at the stuff of law, we will reach a position from which we might think anew about authority and where it comes from. For though a justice may speak, he does not act alone.

Veils

'The Legal Recognition of Personality: Full Face Veils and Permissible Choices' by Jill Marshall in (2014) 10 International Journal of Law in Context 64-80 argues 

A woman’s freedom to develop her personality or identity as she sees fit is supposed to be legally protected in twenty first century Europe. The European Convention on Human Rights (ECHR) provides a right to respect for one’s private life in Article 8 which has been judicially interpreted to provide a right to identity or personality development. Additionally, Article 14 provides for non-discrimination and Article 9 and 10 for freedom of expression, including that which is religious. Arguments are examined of some different interpretations of the overall purpose of human rights law -- to respect human dignity and human freedom. These are examined by reference to the recent criminalization of wearing face coverings in public places in certain European countries where the intention is to prevent the wearing of the Islamic full face veil. It is argued that each woman’s identity is legally recognized when the concepts of human dignity and human freedom are interpreted as empowering and self-determining rather than constraining and paternalistic. Legally banning full face veils, in liberal democracies in situations where an adult woman says she has freely chosen to wear such a garment, misrecognizes her and disrespects her identity or personality: as a human being, as a member of a religious or cultural group and as an individual person capable of subjectively interpreting her own identity or personality as she sees fit.

Disclosure

'Shadows Amid Sunshine: Regulating Financial Conflicts of Interest in Medical Research' by Richard S. Saver in (2014) 145 CHEST 379 comments -

The controversial Physician Payments Sunshine Act (Sunshine Act) makes public a wide range of financial relationships between industry, physicians, and teaching hospitals. A response in part to increasing concern about financial conflicts arising in clinical trials, the Sunshine Act applies quite broadly in the research setting. This article considers the implications of the Sunshine Act for medical research. It also identifies important unresolved issues and implementation challenges that still lie ahead with the rollout of the legislation underway. Among reasons to question the law's effectiveness, some public reporting can likely be avoided through restructuring of financial relationships with greater participation by allied health professionals and distributors in place of physicians and manufacturers. Of even greater concern, the Sunshine Act primarily depends upon disclosure as a regulatory strategy, making its long-term impact open to question. Disclosure in the research context may have limited utility given uncertainty about who the intended recipients are and their ability to use the information effectively. Apart from the insufficiency of transparency, this article further explores how proportionality, fairness, and accountability considerations make optimal regulation of financial conflicts in medical research quite challenging.

In a dead man's shoes

'Lawyer allegedly used dead man's MCC member card' by Louise Hall in today's SMH reports that

A Sydney lawyer allegedly caught using the identity of a dead client to access the prized Members Reserve at the Melbourne Cricket Ground during AFL grand finals could be struck off the roll of solicitors.

Denis Manning Anderson was escorted from the stadium after security officers intercepted him using the membership card of Michael Alfred Starkey - who died almost 15 years earlier - at last year's match. 

It would appear that the 78 year old Anderson, described as a criminal law specialist, may have been using the deceased member's identity - with a yearly subscription fee of up to $625 - for much of the 15 year period.

The SMH comments that "Membership of the Melbourne Cricket Club is notoriously difficult to earn. There are about 233,000 people on the waiting list". Membership is  nontransferable.

 MCC spokesman Shane Brown said the club received a tip-off that a man was "using a membership card of a deceased person".

"After an investigation, the club intercepted the individual attempting to access the MCC Members Reserve at the 2013 AFL grand final", he said.

"The membership was subsequently cancelled and the individual was escorted from the stadium". ...

MCC full members are entitled to use the MCG Members Reserve without charge for all domestic and international cricket matches including the Boxing Day test and all AFL fixtures, including the grand final. Entrance to the members dining room, entertaining guests and reciprocal rights at clubs around the world are some of the perks.

The NYT meanwhile reports on 'end of life services', which allow you to plan "life’s last big event in the same way you might plan a wedding or another major occasion".

Everplan for example "walks users through what an end-of-life and estate plan should include, provides a place to store everything and goes as far as offering reviews on funeral homes and nearby restaurants. It will also handle the invitation" but apparently not "sending emails from the grave".

The Times comments

The next obvious question: How secure are these sites, particularly when storing so much personal information — even passwords — in one place? Most of these services advertise bank-level security and include other talk about encryption, which doesn’t mean much to most people.

In fact, Bruce Schneier, a well-known computer security expert, said a lot of hacking had nothing to do with encryption. You ultimately have to trust the company, he said, because somebody, somewhere, probably has access to the decryption keys.

Mr. Schneier said he would like to see some type of legal fiduciary responsibility. If the company makes a mistake, he asked, who is at fault? That’s a good question to keep in mind if you’re considering using these services.

An Everplan account

serves as a repository for just about everything: financial accounts and legal documents; where to find your Social Security card and life insurance policy; how to close the cable television account, to name but a few. There’s also room to share life lessons or an explanation of why your will was written a certain way. If you already have a contract with a funeral home or crematorium, you can upload that, too. How and when do your loved ones get access? You assign specific “deputies” for your plan, so they can find everything neatly in one place. Much of the site is free, but if you want to upload documents and have more than one deputy, the service costs $35 annually.

As you fill out your checklist, you’ll also notice a couple of “preferred providers,” including Integrity Life Solutions, an insurance and annuity firm, and Rapidocs, which helps you create legal documents, including wills, online. ... Right now, the co-creators said they weren’t getting paid for referring you to these companies, but it’s possible they might in the future.

The co-founders promise that, even if the company is sold in the future, they are working on a system that would allow people to gain access to their plans for at least the next 50 years.

Competitor Principled Heart requires three people  to validate the account owner’s death, with the site (US$45 per year for up to one gigabyte of storage) then providing access to the information.

AfterSteps

begins by asking you to name three verifiers ... the people who will be notified in the event of your death and will get access to all the information stored on the site (either now or a time you specify later). After you enter basic personal details, it asks who should be contacted by the verifiers after you die. ... Like the other sites, it provides a spot for other legal forms. You can also store passwords and instructions for digital accounts, upload photos and share wishes for your funeral arrangements, among other things. The site requires a credit card at sign-up — it costs $60 a year or $299 for life — but there is a free 14-day trial period.

Assessment

Chuffed to read the following in Journal of Medical Ethics -

Ethical issues related to paternalism are also raised by Wendy Bonython and Bruce Arnold (see page 168) in their discussion of recent Australian genetic privacy law. This set out to ‘permit disclosure of an individual's genetic information, without their consent, to genetic relatives’ but subsequently was amended in delegated legislation by means and in ways which appear even less consistent with respect for consent and confidentiality. This highly informative account of Australia's brave but flawed attempt to tackle the thorny issue of unconsented disclosure of genetic information to other family members deserves study by lawmakers and clinicians alike.

The account is 'Disclosure 'downunder': misadventures in Australian genetic privacy law' in (2014) 40(3) J Med Ethics 168-172, which initially appeared in 2012.

Chinese Security State

'The Rise of the Security State' by Yuhua Wang and Carl Minzner argues that

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance”  (weiwen, 维稳) operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that the origin of these changes lies in a policy response to the developments of 1989-1991, namely the Tiananmen democracy movement and the collapse of Communist political systems in Eastern Europe. Over the past twenty years, these practices have flowered into an extensive stability maintenance apparatus, where local governance is increasingly oriented around the need to respond to social protest, whether through concession or repression. Chinese authorities now appear to be rethinking these developments, but the direction of reform remains unclear. 

They comment that

… Public security chiefs have risen in bureaucratic influence. Funding and personnel for state operations aimed at controlling citizen petitioners and social protest have surged. And control of the institutions responsible for addressing these issues has been vested in progressively more senior Party political-legal authorities. 

But China remains far from a simple police state. To be sure, state authorities harass, detain, and arrest individuals they deem a threat to their rule. And vast numbers of state agents and informally recruited personnel have been employed to keep watch over selected political dissidents, citizen activists, and public interest lawyers. But heightened official sensitivity to social unrest has also led to state concessions to mobilized groups of aggrieved citizens, facilitated strategies of “rightful resistance” among petitioners, and prompted state authorities to revive Maoist-era populist judging practices and mediation institutions at the expense of late-20th century legal reforms. 

This article argues that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We argue that the origin of these changes lies in a policy response to the developments of 1989-1991, namely the Tiananmen democracy movement and the collapse of Communist political systems in Eastern Europe. Over the past twenty years, these practices have flowered into an extensive weiwen apparatus, where local governance is increasingly oriented around the need to respond to social protest, whether through concession or repression. Chinese authorities now appear to be rethinking these developments, but the direction of reform remains unclear. 

The past two decades have witnessed increased levels of domestic protest in China, despite a growing economy and rising living standards. While the literature on resistance has flourished, there remains limited scholarship on how China’s coercive institutions have responded to this challenge. We join a rising scholarly interest in coercive institutions in China, but our approach is distinctive in focusing on Party-state leaders and the internal organization of the Chinese bureaucracy. 

Beyond China, we also speak to the broader literature on authoritarian regimes. There has been a long tradition in the social sciences that views coercion as the pillar of model nation states. The recent uprisings in the Arab world have again called attention to the dependence of authoritarian regimes on coercive organizations. The loyalty of such organizations is said to explain the survival of the Bahraini monarchy, while the defection of the military contributed to the breakdown of autocratic rule in Tunisia and Egypt. 

However, our study argues that the response of the authoritarian Chinese regime to the “survival dilemma” goes beyond simply ratcheting up the use of coercion. Chinese authorities have remodeled the internal bureaucratic organization of the Party-state apparatus, incentivized local authorities to aggressively respond to citizen protests (whether through repression or concession), and reworked the political-legal apparatus to address citizen grievances in a more flexible and coordinated manner. 

Our research is based on both quantitative and qualitative analysis. Quantitatively, we manually constructed a Chinese Political-Legal Leaders Database, covering all national and provincial political-legal committee chairpersons, public security heads, procuratorate presidents, and court presidents from 1978 to 2013. The database includes variables measuring the Party bureaucratic positions concurrently held by these leaders. Qualitatively, we conduct a close reading of government and Party documents (including analyzing the public speeches of Qiao Shi, Party political-legal head during the late 1980s and early 1990s) to explain relevant changes in these bureaucratic practices. 

The next section details our quantitative data collection methods. The third section offers a descriptive analysis of the rank of political-legal leaders at the national and local levels. The fourth section identifies the early 1990s as a turning point of development in the political-legal apparatus and provides a historical analysis of relevant shifts. The fifth section examines recent developments. The sixth section discusses possible implications of our findings. The last section then concludes with a summary of our findings and broader implications of the study.

Hegemonic Masculinities

'Enforcing Masculinities At The Border' by Jamie R. Abrams in (2013) 13(1) Nevada Law Journal comments

"American men have no history," declared pioneering masculinities scholar, Michael Kimmel. Masculinities, the study of how men relate to each other and construct their identities, can be used as a powerful sociological and legal tool to understand institutions, power structures, and human relations. While the history of American immigration law has revealed rich multi-dimensional narratives of class, race, and domestic and international politics,  sparse historical work has considered the masculinities dimensions of immigration law.

Abrams states -

This Article considers how unpacking the masculinities dimensions of our paradigmatic shifts in immigration policy might offer an additional - even unifying - dimension to previously disparate and divergent immigration laws worthy of further research. This Article concludes that it is critical to make masculinities visible in immigration law and policy to understand how dominant masculine imperatives shape citizenship itself. This Article suggests that our immigration laws and policies reinforce dominant masculinities at the border by excluding marginalized masculinities and admitting those who comport with dominant masculinity norms. This Article considers whether the state is not just enforcing immigration laws at its borders but whether it also enforces masculinity norms. 

Such an analytical and historical examination might prove influential in modern immigration reform. As private citizens take up guns and machetes to "defend" our nation's borders,  as political movements call for the "taking back of our country," and as anti-immigrant violence and sentiment escalates to dangerous levels, deepening our understanding of immigration law's under-pinnings in terms of masculinities is acutely important. Contemplating the unifying thread of dominant and marginalized masculinities underlying immigration law suggests a cautionary tale for modern immigration legal responses. 

This Article first provides a brief overview of hegemonic, dominant, and marginalized masculinities concepts, revealing the insider/outsider dimensions of masculinities theory that are relevant to its application to immigration law. It then provides examples of how our immigration laws enforce masculinities - admitting immigrant populations that conform to dominant conceptions of western masculinities and excluding marginalized masculinities. Finally, this Article notes the implications of this thesis to modern immigration law in its endorsement of a masculinized state, and the enforcement of a masculinized conception of citizenship. This Article introduces the relevance of this methodology. There is indeed rich and robust work to be done to test these theories and to reveal the value in and the limits of this unitary narrative. 

Abrams claims that -

Masculinity is "both omnipresent and invisible." After famously declaring "American men have no history," Michael Kimmel - and other masculinities scholars - undertook the monumental task of documenting how manhood and masculine relations in America have shaped history, institutions, and social order, and have evolved over time. He revealed the history of changing con- ceptions of "ideal" masculinity, but also the competing versions that challenged the normative view. Kimmel's work identified transformational historical moments during which American masculinities were in crisis as men reinvented and redefined their identities and their social interactions. This Article suggests that these masculinities crises or transformational episodic periods align with peak nativist sentiments and dramatic shifts in our immigration law and policy in notable ways. 

Masculinities are distinctly a relational concept as institutions create masculinities and masculinities also construct institutions, rendering them keenly relevant to a thorough account of immigration law. Masculinities are fluid and characteristically dependent on the "other" to define itself, rendering it hard to capture and explore masculinities in isolation without its relational constructs. It is the framing of the "other" to define masculinities that positions masculinities theory as so informative to understanding immigration law. Likewise, our immigration laws explicitly and implicitly reflect a legal, political, and social framing of the "other," which, this Article reveals, aligns tightly with prevailing masculinities. 

This Article particularly relies on concepts of hegemonic masculinity, dominant masculinities, marginalized masculinities, and hyper-masculinity to support its thesis. Hegemonic masculinity has been described as the "defining gender performance of Euro-American males." Hegemonic masculinity theory defines a dominant conception of masculinity as synonymous with power. It explains how definitions of manhood in American culture reinforce the power that some men maintain and wield over women and other men. "It is a "culturally idealized form of masculine character." 

Hegemonic masculinity frames manhood as the quest to acquire and retain the symbols that express manhood," such as strength, success, and control.' Hegemonic masculinity imperatives exert pressure on men to conform to its ideals, but these cultural traits need not correspond closely to the actual person- alities of the majority of men. Hegemony is thus described by the "successful claim to authority," distinct from actual authority. Indeed, while men as a group may be dominant and powerful, most men as individuals do not feel powerful. The hegemonic model only actually represents a small number of men, but large numbers are "complicit in sustaining the hegemonic model." Men who do not meet these hegemonic norms will conclude that they are somehow "unworthy, incomplete, and inferior." Hegemonic masculinities are thus a relational concept, "not a fixed character type, always and everywhere the same," and "always contestable." 

Hegemonic masculinity is sustained by the quest for a dominant strand of masculinity and the perceived powerlessness that men can derive from the constant pressure to achieve this masculinity. This perception of inadequacy can lead to hyper-masculine expressions. Hyper-masculinity is a theory of exaggerated masculinity expressed as a manifestation of one's insecurities. Hypermasculinity is a "hedge, an effort to offset feelings of masculine inadequacy. " Hyper-masculinity has been used to explain some acts of male violence, extreme conservative viewpoints, and bodybuilding behaviors, to name a few expressions. 

Dominant and marginalized masculinities are hallmark characteristics of Western masculinities - particularly, the use of marginalization as an inter-group dynamic to sustain dominant masculinities. As Cheng explains, "[O]ne's membership in either the dominant group or a marginalized group is based on our conformity to hegemony": you either conform and belong to the dominant group or you do not conform and you are marginalized because you threaten the dominant hegemonic strand. Dominant masculinities refer to the"most common, celebrated, widespread, or powerful" types of masculinities. Marginalization describes "the relations between the masculinities in dominant and subordinated classes or ethnic groups." Marginalization is thus always relative to the "authorization of hegemonic masculinity of the dominant group." 

The exclusion of marginalized and threatening groups has long been a "masculine retreat" in our nation's history, as dominant masculinities have espoused consistent sentiments of nativism and fears of feminization. Hegemonic masculinity is distinctly framed "in relation to femininities and subordinated and marginalized masculinities." It necessitates a hierarchy by positioning masculinity in a hierarchical relationship to femininity. It refers to the "cultural dynamic by which a group claims and sustains a leading position in social life. At any given time, one form of masculinity rather than others is culturally exalted." It is thus framed heavily by what it is not: namely, that men not be gay and not be feminine. Connell described "gayness" as the "repository" of what is "symbolically expelled from hegemonic masculinity . . . ." Masculinity is historically anchored in an exclusionary paradigm, systematically excluding women, immigrants, and gays. Hegemonic masculinity is also historically anchored in nativism and shaped by governing race relations. 

Masculinity is historically fluid, rendering it rich for analysis in immigration law. R.W. Connell explains, "To recognize gender as a social pattern requires us to see it as a product of history, and also as a producer of history." Masculinity is often deployed as a political tool, as this Article will examine. The next sections of this Article examine how paradigmatic shifts in immigration law and policy have aligned with masculinities in crisis and how masculinities have shaped the ultimate direction of immigration law.

Scarcity

'IP in a World Without Scarcity' by Mark A. Lemley argues

Things are valuable because they are scarce. The more abundant they become, they cheaper they become. But a series of technological changes is underway that promises to end scarcity as we know it for a wide variety of goods. The Internet is the most obvious example, because the change there is furthest along. The Internet has reduced the cost of production and distribution of informational content effectively to zero. In many cases it has also dramatically reduced the cost of producing that content. And it has changed the way in which information is distributed, separating the creators of content from the distributors. 

More recently, new technologies promise to do for a variety of physical goods and even services what the Internet has already done for information. 3D printers can manufacture physical goods based on any digital design. Synthetic biology has automated the manufacture not just of copies of existing genetic sequences but any custom-made gene sequence, allowing anyone who want to create a gene sequence of their own to upload the sequence to a company that will “print” it using the basic building blocks of genetics. And advances in robotics offer the prospect that many of the services humans now provide can be provided free of charge by general-purpose machines that can be programmed to perform a variety of complex functions. While none of these technologies are nearly as far along as the Internet, they share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture. Combine these four developments – the Internet, 3D printing, robotics, and synthetic biology – and it is entirely plausible to envision a not-too-distant world in which most things that people want can be downloaded and created on site for very little money. 

The role of IP in such a world is both controverted and critically important. IP rights are designed to artificially replicate scarcity where it would not otherwise exist. In its simplest form, IP law takes public goods that would otherwise be available to all and artificially restricts their distribution. It makes ideas scarce, because then we can bring them into the economy and charge for them, and economics knows how to deal with scarce things. So on one view – the classical view of IP law – a world in which all the value resides in information is a world in which we need IP everywhere, controlling rights over everything, or no one will get paid to create. That has been the response of IP law to the Internet so far.  

But that response is problematic for a couple of reasons. First, it doesn’t seem to be working. By disaggregating creation, production, and distribution, the Internet democratized access to content. Copyright owners have been unable to stop a flood of piracy with 50,000 lawsuits, a host of new and increasingly draconian laws, and a well-funded public education campaign that starts in elementary school. Second, even if we could use IP to rein in all this low-cost production and distribution of stuff, we may not want to. The point of IP has always been, not to raise prices and reduce consumption for its own sake, but to encourage people to create things when they otherwise wouldn’t. More and more evidence casts doubt on the link between IP and creation, however. Empirical evidence suggests that offering money may actually stifle rather than drive creativity among individuals. Economic evidence suggests that quite often it is competition, not the lure of monopoly, that drives corporate innovation. The Internet may have spawned unprecedented piracy, but it has also given rise to the creation of more works of all types than ever before in history, often by multiple orders of magnitude. 

Far from necessitating more IP protection, then, the development of cost-reducing technologies may actually weaken the case for IP. If people are intrinsically motivated to create, as they seem to be, the easier it is to create and distribute content, the more content is likely to be available even in the absence of IP. And if the point of IP is to encourage either the creation or the distribution of that content, cost-reducing technologies may actually mean we have less, not more, need for IP. 

IP rights are a form of government regulation of market entry and market prices. We regulated all sorts of industries in the 20th century, from airlines to trucking to telephones to electric power, often because we couldn’t conceive of how the industry could survive without the government preventing entry by competitors. Towards the end of that century, however, we experimented with deregulation, and it turned out that the market could provide many of those services better in the absence of government regulation. The same thing may turn out to be true of IP regulation in the 21st century. We didn’t get rid of all regulation by any means, and we won’t get rid of all IP. But we came to understand that the free market, not government control over entry, is the right default position in the absence of a persuasive justification for limiting that market. The elimination of scarcity will put substantial pressure on the law to do the same with IP. 

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

Queensland's Great Leap Backwards

The passionate 'The Great Leap Backward: Criminal Law Reform with the Hon Jarrod Bleijie' by Andrew Trotter and Harry Hobbs in (2014) 36 Sydney Law Review [PDF] discusses the deeply problematical G20 Act and comments that 

On 3 April 2012, the Honourable Member for Kawana, Jarrod Bleijie MP, was sworn in as Attorney-General for Queensland and Minister for Justice. In the period that followed, Queensland’s youngest Attorney-General since Sir Samuel Griffith in 1874 has implemented substantial reforms to the criminal law as part of a campaign to ‘get tough on crime’. Those reforms have been heavily and almost uniformly criticised by the profession, the judiciary and the academy. This article places the reforms in their historical context to illustrate that together they constitute a great leap backward that unravels centuries of gradual reform calculated to improve the state of human rights in criminal justice.

The authors state -

Human rights in the criminal law were in a fairly dire state in the Middle Ages. Offenders were branded with the letters of their crime to announce it to the public, until that practice was replaced in part by the large scarlet letters worn by some criminals by 1364. The presumption of innocence, although developed in its earliest forms in Ancient Rome, does not appear to have crystallised into a recognisable form until 1470. During the 16th and 17th centuries, it was common to charge the families of a prisoner sentenced to death a fee for their execution, but by the 18th century prisoners had largely been relieved of the indignity of paying for their punishment. The coercive force of the state was a common and accepted tool for extracting incriminating information until torture was abolished in England in 1640, and from the early 18th century in other parts of Europe. Prosecutors were free to use a defendant’s criminal history against him in a criminal trial until about 1715. It was not until 1836 that reference to such evidence was statutorily restricted to cases where it served some purpose — either to respond to credibility attacks by the defendant or as similar fact evidence. Criminals whose acts sufficiently shocked the public conscience would be repeatedly punished, sometimes beyond death, with their disinterred cadavers subjected to further humiliation. This practice finally ceased in Ireland in 1837. 

By 1840, the concept of supervised release and reintegration of prisoners was developing, which would lead to the establishment of the parole authorities and court-ordered parole.8 Mandatory sentences were relatively common in the 18th and 19th centuries, but the last widespread network of minimum sentences was abandoned in 1884 after it became clear that they had a tendency to cause injustice. By 1915, suspended sentences had been introduced in some Australian courts, providing another means of sentencing offenders and deterring future offending. Emergency legislation providing for extraordinary offences and police powers had become unfashionable. 

By the turn of the 21st century, the criminal law had come a long way. 

Since coming to office in Queensland on 3 April 2012, Attorney-General Bleijie has, with remarkable efficiency, undone the better part of these developments in that State. From 20 June 2012, he reintroduced mandatory minimum sentences for various crimes, ranging from child sex offences to graffiti. On 21 August 2012, he introduced a levy charging sentenced offenders to ensure they ‘contribute to the justice system’. On 15 March 2013, he announced reforms to reveal defendants’ criminal histories to juries. On 1 May 2013, legislation he had introduced passed, authorising the seizure of ‘unexplained wealth’ and abrogating the presumption of innocence to require an explanation. On 31 July 2013, he announced a plan to abolish court-ordered parole and suspended sentences. On 20 August 2013, he introduced legislation to criminalise the possession of various innocuous objects during the G20 Conference and equipped police with emergency coercive powers. On 21 September 2013, the Queensland government moved to establish a website to announce the identity of certain offenders to the public. On 15 October 2013, he introduced legislation establishing crushing terms of imprisonment to be imposed for crimes committed in groups, which can be avoided only by providing inculpatory information. On 17 October 2013, he purported to give himself power to detain sex offenders indefinitely, after the expiration of their sentence, if, in his substantially unreviewable discretion, he considered it in the public interest. He has noted that there are roughly 6000 prisoners in Queensland, and room for about 500 more. There are, no doubt, more reforms to come. 

Each of these ‘reforms’ is an aspect of a broader policy to be tough on crime. There is no occasion in this article for a full exploration of the effectiveness of such a strategy: it is sufficient to observe that harsher punishments have been repeatedly and categorically demonstrated not to have the desired deterrent effect. Tough-on-crime movements have failed many times before. However, there is something troubling in Bleijie’s approach to reform. He has frequently cited community sentiments in support of harsher criminal laws. His focus on ‘victims’ rights above and beyond the offender’s rights’ comes at the expense of proper consultation and a balanced approach to law reform. The almost uniform opposition of an overwhelming majority of interested organisations with considerable expertise has been disregarded, and a body of experts established specifically for the purpose of considering and advising on proposed sentencing reforms has been abolished. As early as 1820, Frenchman Charles Cottu expressed his dismay at the English system of the time ‘confiding its punishment entirely to the hatred or resentment of the injured party’. It would be profoundly undesirable to return to such a time. This article traverses the historical background to each of Bleijie’s proposed and legislated endeavours. These endeavours disregard lessons learnt through centuries of reform and return the criminal law to a state from which it had long and happily departed.

In concluding they comment

For most of their history, baked beans have gone unnoticed by the criminal law. Haricot beans were introduced to Europe from Native America in the 16th century. They were used in ‘bean hole’ cooking, common in logging camps in Maine, and canned beans with pork: one of the early convenience foods. The first serious controversy came when this was attacked by consumers for not containing sufficient pork, until the United States Food and Drug Administration authoritatively determined that it ‘has for years been recognised ... that [it] contains very little pork’. The first recipe for baked beans was published in 1829 and designed to help poor families through the depression of the 1820s. By 1841 they were no longer a food for the poor, but for the industrious who were ‘growing rich’. Heinz Baked Beans came onto the market in the United Kingdom in 1898 and enjoyed a relatively uncontroversial existence for a time. By the 1930s, they were losing their connotation of frugality and gaining one of ‘health, spirituality and autonomy’. 

Admittedly, recent years have been slightly more turbulent. In 2007, Hugh Grant was arrested after an allegation that he assaulted the paparazzi with baked beans. In 2013, a woman was jailed for 20 months after ransacking a friend’s home with baked beans. In light of such incidents, it could be considered alarming that, in just four days in Britain, the same number of cans of baked beans is consumed as the number of guns manufactured in the US in an entire year. However, 2.3 million people in Britain continue to eat them every day, for the most part without incident. 

Then, on 20 August 2013, the Queensland government introduced legislation providing extraordinary powers for the policing of the G20 Heads of Government Summit in Brisbane on 15 and 16 November 2014. The Explanatory Notes to the Bill admit to ‘a number of provisions of the Bill that are not consistent with fundamental legislative principles’. An examination of those offending provisions occupies the next 12 pages of the Explanatory Notes. 

The G20 Act prohibits a number of items, including categories of weapons as well as antique firearms, knives, swords, spear guns, blowpipes, explosive tools, flares and cattle prods. However, the list includes more mundane items, including glass bottles or jars, eggs, reptiles and insects, two-way radios, urine, remote-controlled toy cars, manually operated surf skis, surfboards, kayaks, boats or canoes, flotation devices, and, relevantly, metal cans or tins. In case anything has been omitted, a catch-all provision extends to anything ‘that is not a weapon but is capable of being used to cause harm to a person’. With the passage of the G20 Act, the can of baked beans has achieved a new level of criminality. The breadth of this provision is ‘plainly absurd’. 

It is prohibited, without lawful excuse, to possess, attempt to take into, or use a prohibited items in a ‘security area’. This includes vast areas of both central Cairns and Brisbane, extending from South Brisbane across Spring Hill to Breakfast Creek, encompassing ‘tens of thousands of homes and businesses’. A child operating a remote-controlled toy car in their backyard, a family using a knife to consume food at a barbecue on South Bank, or construction workers using explosive tools to carry out their work, will have a ‘lawful excuse’. However, the Bill reverses the presumption of innocence. Any person carrying a tin of baked beans at Kangaroo Point is prima facie guilty of an offence and must provide a lawful excuse for their possession. 

Certain searching and other coercive powers are conferred on police officers and other ‘appointed persons’, who may be anyone who the Commissioner is reasonably satisfied ‘has the necessary expertise or experience to be an appointed person’. A police officer may enter and search any non- residential premises in a restricted area without a warrant in order to find that tin of baked beans. They may then conduct a ‘basic’ or ‘frisk’ search on anyone in the premises, or indeed anyone attempting to enter, about to enter, in, or leaving, a security area. An appointed person could search such a person’s bag in certain security areas for the prohibited haricots. If the police reasonably suspect that the person is in possession of a can of Heinz without lawful excuse, they may conduct a strip search or medical X-ray to locate the beans. If the person refuses, the police officer can arrest that person without a warrant. If the person is then charged with ‘attempting to disrupt any part of the G20 meeting’, the presumption in favour of bail is reversed. In any event, the Queensland courts will be closed for the week of the conference. 

In addition, a person can be prohibited from entry into any security area if the Police Commissioner is reasonably satisfied that he or she may disrupt any part of the G20 meeting. Unless it is ‘reasonably practicable to do so’, the person need not be notified of the prohibition; and the list need not be made public. If the person enters or is in a prohibited area, he or she is liable to be removed by police or appointed persons. If the person lives in the security area, the cost of their alternative accommodation will fall to the Queensland government. 

The use of extraordinary police powers during G20 summits is not new. In 2010, the Ontario government came under fire for using an obscure 1939 Act, which had originally been enacted to protect Ontario’s hydroelectric facilities against Nazi saboteurs, to pass a regulation giving police broad arrest powers during the summit. This was done despite the Federal Deputy Minister of Public Safety’s advice to his Provincial counterpart that existing police powers were ‘sufficient’. The Ontario Provincial Police also considered that additional powers were unnecessary. The same could be said of the Queensland laws. 

With the benefit of those coercive powers, authorities ‘fuelled the belief’ that any person within five metres of the summit security fence would be required to provide identification and submit to a search. In reality, this power could only be exercised within the security fence. In response to allegations that the widespread misunderstanding of the regulations had a chilling effect on the rights of citizens and emboldened police, Toronto Police Chief Bill Blair was unrepentant, explaining that he ‘was trying to keep the criminals out’. During the summit, 1100 people were arrested, of whom 779 were released without charge, 204 had charges stayed, withdrawn or dismissed, and 40 others ended without a conviction. By contrast, more than 30 police officers were recommended for full disciplinary hearings. 

The history of emergency legislation is characterised by legislative excess in times of panic and emergency. Fear has never been a good legislator. In his powerful dissent in Korematsu v United States, Jackson J warned that every emergency power, once conferred ‘lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need’. It is positive that the G20 legislation will expire on 17 November 2014, but the potential for excesses of the Canadian variety is concerning. …. 

Bleijie and his government are cutting red tape, green tape,and blue tape. To this we would add the ‘golden thread’ of the presumption of innocence and the various other strands of gold tape meticulously woven over the course of centuries to restrain criminal proceedings from impinging upon human rights and ensure the fair administration of criminal justice. This article has traversed history to illustrate centuries of improvement to the criminal justice system and to human rights — undone with each snip of the legislative scissors. 

The development of a government website to publish the photos of sex offenders is reminiscent of scarlet letters laws dating back to 1364. Unexplained wealth laws serve to further unravel the presumption of innocence, which the common law began weaving as early as 1468 and had more or less perfected by 1935. The introduction of an offender levy is akin to charges imposed on prisoners for their own penalties in the 16th and 17th centuries. The threat of 15 or 25 years extra imprisonment unless the prisoner produces information is not much more subtle than the extraction of such information by torture in England before 1640. Allowing juries access to the criminal histories of defendants undoes a refined framework that has stood in place since 1836. The largely unreviewable and unconstrained power to detain sex offenders after they have served their sentence is reminiscent of post-punishment penalties that were abandoned by 1837. The abolition of court-ordered parole and suspended sentences would derogate from the graded system of deterrent mechanisms that has gradually developed since 1840. The introduction of a series of mandatory sentences fails to learn from an error made and swiftly undone in 1884. The emergency G20 laws and the coercive police powers that support them repeat the Canadian mistake of 2010. 

If this historical context is not enough to illustrate the thorough undesirability of the criminal reforms legislated and foreshadowed by the Attorney-General, there is no shortage of practical and policy objections to supplement it. Some of these have been mentioned in the case of each reform, but they only graze the surface of the criticisms that have been more fully aired in the various submissions on each Bill, the academic discussion and the public objections of civil libertarians. 

The role of the institution of criminal punishment is ‘a very old and painful question’. The tension between the ‘passionate, morally toned desire to punish’ and the ‘administrative, rationalistic normalising concern to manage’ can be traced back to the famous disagreement between Plato and Aristotle on whether the function of the criminal law was to punish past wrongs or moderate future conduct. It is clear that there is an ‘obligation of the government to protect’, which has been characterised by the United States Supreme Court as ‘lying at the very foundation of the social compact’. However, it is clear also that human rights must ‘tame the excesses of political pursuits of security and public protection’. There is a delicate balance to be struck. Bleijie’s approach to reform, and his reforms themselves, have failed to strike this balance. The roll-back of human rights in Queensland, primarily instigated by the Attorney-General, must be noted in detail. In due course, steps must be taken to redress his great leap backward.

Classification

The Minister for Justice has announced the "first tranche" of reforms to the National Classifications Scheme, with introduction of the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014 (Cth) to amend the Classification (Publications, Films and Computer Games) Act 1995 (Cth).

The Bill is intended to -

• broaden the scope of existing exempt film categories and streamline exemption arrangements for festivals and cultural institutions
• enable certain content to be classified using classification tools (such as online questionnaires that deliver automated decisions) 
•  create an explicit requirement in the Classification Act to display classification markings on all classified content 
• expand the exceptions to the modifications rule so that films and computer games which are subject to certain types of modifications do not require classification again
• enable the Attorney-General’s Department to notify law enforcement authorities of potential Refused Classification content without having the content classified first, to help expedite the removal of extremely offensive or illegal content from distribution

The Minister states that the Bill will

reform the National Classification Scheme to identify opportunities for faster, more reliable and cost effective classification of large volumes of content such as mobile and online games. ... The reforms remove the need for reclassification when minor changes are made to computer games, such as software updates, bug fixes, or even when a new song is added to a karaoke game. 

Films that were modified to play on the small screen of an aeroplane in-flight service, or movies changing from 2D to 3D, will no longer require reclassification. Festivals and cultural organisations like the ‘Australian Centre of the Moving Image’ and events such as ‘Tropfest’ will no longer be required to submit cumbersome applications to the Director of the Classification Board for a formal exemption before they screen material, so long as they satisfy criteria in the Classification Act. 

The Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014 amends the Classification (Publications, Films and Computer Games) Act 1995 to implement a number of ‘first tranche’ reforms that were agreed to by Commonwealth, state and territory Ministers responsible for classification. 

These ‘first tranche’ reforms are based on a number of recommendations from the Australian Law Reform Commission’s review into the National Classification Scheme, and will be limited to the content currently regulated by the scheme. 

“We need to improve the effectiveness of this scheme, enhance compliance with state and territory classification laws and provide more classification information, specifically to parents and young people,” Mr Keenan said. 

“Ultimately we aim to deliver benefits to industry by reducing administrative red tape and the regulatory burden, whilst continuing to provide consumers with important classification information,” Mr Keenan said.

Insignia and Ambushes

On the heels of the Commonwealth Games Arrangements (Brand Protection) Amendment Act 2013 (Cth) and the Queensland events protection regime noted here the Australian Government has introduced the Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth), intended to protect three major sporting events -

• Asian Football Confederation (AFC) Asian Cup 2015;
• International Cricket Council (ICC) Cricket World Cup 2015;
• Gold Coast 2018 Commonwealth Games.

The Bill is described as meant to

prevent the unauthorised commercial use of certain indicia and images associated with these events in the lead up, during, and immediately after the events; and 

provide a more secure environment in which the relevant local organising committees can raise revenue through sponsorship and prevent ambush marketing.

The Regulation Impact Statement indicates that -

The Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games will be significant international sporting events to showcase Australia. As a condition of being awarded the right to host these events, the Australian Government provided written undertakings to protect the unauthorized commercial use of certain indicia and images associated with each of the Events, commensurate with the support provided to the Melbourne 2006 Commonwealth Games, and enact any required legislation by early 2014. 

Traditionally event owners rely on sponsorship revenue to stage their events, reducing the reliance on government financial support. In return for their event sponsorship, sponsors can publicise their support by using event indicia and images. However, businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images, suggesting a sponsorship arrangement with the event. This is called ‘ambush marketing by association’. 

Precedent for major sporting events legislation has been established by the Sydney 2000 Games (Indicia and Images) Protection Act 1996 and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005. These were enacted to provide legislative protection to event owners for certain event insignia as existing legislative mechanisms were deemed inadequate to prevent incidents of obvious ambush marketing. Both these Acts have since been repealed. 

Problem or Issue Identification 

Event owners and the AFC Asian Cup Local Organising Committee, the ICC Cricket World Cup Local Organising Committee, and the Gold Coast 2018 Commonwealth Games Corporation have sought a commitment from the government to protect against the unauthorized use of certain indicia and images associated with the respective events to help them secure event sponsorship. 

If sponsors do not have certainty that they are the only businesses that can directly benefit from association with the Events, they may withdraw their sponsorship or decide not to support the Events. A decrease in sponsorship revenue could increase the need for financial assistance from the Australian Government and/or state and territory governments to stage the events. 

An analysis was undertaken by the Major Events Taskforce in the Office for Sport and relevant government agencies of the existing legislation and the commitments provided by the Australian Government. The analysis identified that:

• The existing Acts do not provide the level of protection committed to. In particular, not all Event indicia can be trademarked as the Trade Mark Act 1995 and the Copyright Act 1968 do not extend to the protection of common words, titles and short expressions. 

• Customs powers in the Trade Marks Act 1995 and the Copyright Act 1968 have been strengthened in the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 since Melbourne 2006 and these should be utilized in the major sporting events legislation to avoid confusion for business, consumers and those administering the measures. 

• Limited legislation exists at the state/territory government level to support ambush marketing with no consistent approach.

The results of a review of the two previous major events legislation undertaken by Frontier Economics in 2007 noted that:

• the effectiveness of these Acts was due to their deterrence and signaling effects and the enhanced ability of the event organisers to enforce their rights by threatening to take action under the legislation thus limiting the number of breaches; and

• greater clarity regarding the existence and scope of property rights enhances competition.

Procedure, Evidence and Proceeds of Crime

If you are using a hammer to crush an eggshell it is wise not to hit your toes. Procedure and drafting matter.

Seven West Media has had a victory in the Federal Court, which in applying s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) has quashed the search warrants used by the Australian Federal Police in that agency's high profile and ineptly managed visit to Seven West's offices.

The Age refers to "a dramatic raid", reporting

The AFP raided the Sydney offices of Seven last month in relation to the Proceeds of Crime Act, which prevents people from profiting from a criminal offence, because of speculation the network had paid convicted drug smuggler Schapelle Corby for an interview. 

No evidence of a deal with Corby, who spent nine years in an Indonesian jail, was found and Seven has since decided not to pursue an interview. 

Seven was successful, on Wednesday, in having search warrants used for the raids quashed. 

The Court found that errors contained in the warrants and orders - which said Seven legal representatives and personnel had been reasonably suspected of having committed criminal offences - affected the decision of the Magistrate to issue the warrants. 

The AFP had later admitted that nobody from Seven was suspected of committing a criminal offence, blaming a “word-processing error.”  

The traditional 'law enforcement dog ate my homework' excuse is unpersuasive.

Seven West's statement [PDF] indicates

The Court found that errors contained in the warrants and orders, which referred to Seven personnel and solicitors as “suspects” of an investigation and as being reasonably suspected of having committed criminal offences, could not be brushed aside as trivial or insignificant as the AFP had submitted. 

Instead, the errors were material and serious and affected the decision of the Magistrate to issue the warrants. 

Seven will seek payment of its legal costs from the AFP and is considering other options available to us to redress the costs of the AFP’s failed investigation.

From a justice perspective it is reassuring that Australian courts continue to be underwhelmed by poor procedure on the part of law enforcement agencies.

In Seven West Media Limited v Commissioner, Australian Federal Police [2014] FCA 263 [PDF] Jagot J states

The following search warrants issued under s 225 of the Proceeds of Crime Act 2002 (Cth) (the search warrants) be quashed as invalid and of no effect:

(a) CMO 14/035 in relation to the premises of Seven West Media Limited; 

(b) CMO 14/037 in relation to the premises of “Pacific Magazines (New Idea), Media City”; 

(c) CMO 14/039 in relation to the premises of Addisons Lawyers; 

(d) CMO 14/043 in relation to the premises of Justine Munsie, each issued on 17 February 2014; and 

(e) CMO 14/045 in relation to the premises identified as “Media City”, issued on 18 February 2014. 

2. The following orders issued under s 246 of the Proceeds of Crime Act 2002 (Cth) (the s 246 orders) be quashed as invalid and of no effect:

(a) CMO 14/036 to “Seven West Media Ltd (Seven Network)”; 

(b) CMO 14/038 to “### or or any other employee, Pacific Magazines (New Idea)”; 

(c) CMO 14/040 to “Justine Munsie or any other employee, Addisons Lawyers”; and 

(d) CMO 14/044 to Justine Munsie or any other resident, ###.

3. In the event of any request by a non-party to access to documents filed in the proceedings, all parts of documents filed in the proceedings (including pleadings, affidavits and submissions) which identify the names of:

(a) the natural persons identified as suspects in condition two of the search warrants; or 

(b) the natural persons the recipient of a s 246 order, other than the names Justine Munsie, Vasilios Kalantzis, Schapelle Corby and Mercedes Corby,

not be disclosed other than to the parties and their legal representatives. ...

The Court explains -

On 17 February 2014 the second respondent, a magistrate, issued five search warrants in respect of premises occupied by Seven West Media Limited (Seven West), Pacific Magazines Pty Limited (Pacific Magazines), Addisons Lawyers, Justine Munsie, a partner at Addisons Lawyers, and Kalantzis Lawyers. At the same time the second respondent issued five s 246 orders to provide information and assistance to Seven West, “[a named individual], or any other employee Pacific Magazines (New Idea)”, “Justine Munsie or any other employee, Addisons Lawyers”, “Justine Munsie or any other resident” at Ms Munsie’s residential address, and “Kalantzis Lawyers”. On 18 February 2014 the third respondent, a magistrate, issued a search warrant in respect of premises identified as “Media City” and which are occupied by Seven West’s wholly owned subsidiaries, including Pacific Magazines. 

The applicants are persons aggrieved by the issue of the search warrants being, in proceeding NSD 201 of 2014, Seven West , Addisons Lawyers, Ms Munsie and Pacific Magazines and, in the second proceeding NSD 207 of 2014, Mercedes Corby and her lawyer Vasilios Kalantzis, the principal of Kalantzis Lawyers. The applicants contend that the search warrants and s 246 orders are invalid on numerous grounds most of which relate, one way or another, to the propositions that the s 246 orders identified the recipients as “reasonably suspected of having committed the offence stated in the warrant” when, in fact, none of them were or at any time had been suspected of having committed an offence, and that the search warrants identified individuals who were the applicants or their employees or partners as being “suspects…that are the subject of the investigation” when, in fact, none of them were, or at any time had been, suspected of having committed an offence or suspects the subject of an investigation. ...

it is common ground in this proceeding that none of the 33 people, entities and things identified in the second condition of the search warrants, other than Schapelle Corby in respect of the offence committed in Indonesia in 2005 for which she had been convicted and was on parole, was or had ever been a “suspect”. Further, none of the recipients of the s 246 orders was or had ever been “reasonably suspected of having committed the offence stated in the relevant warrant”

What went wrong?

the applicants’ primary contentions of invalidity are founded upon the propositions that the s 246 orders wrongly asserted the recipients were reasonably suspected of having committed an offence and the search warrants wrongly identified numerous individuals as “suspects”. According to the applicants, as a result of these matters, the s 246 orders and search warrants are bad on their face as they show the second and third respondents addressed the wrong question, and the decisions to issue the s 246 orders and search warrants should be vitiated for error of law as those decisions: - (i) were based on facts which did not exist, (ii) disclose a failure of any consideration of the statutory conditions for the issue of the s 246 orders and search warrants, (iii) disclose the taking into account of an irrelevant consideration, and (iv) were so unreasonable that no reasonable person could have made the decisions. 

The AFP answered the applicants’ primary contentions in a number of ways. 

The AFP submitted that while the s 246 orders contained a clear clerical error (the statement that “[y]ou are reasonably suspected of having committed the offence stated in the relevant warrant”), the same could not be said of the search warrants. The second condition in the search warrants involves three alternatives – suspects, entities or other matters that are the subject of the investigation. Some of the items appearing in the list are plainly not capable of being “suspects” (for example, the item the “Mercedes CORBY Exclusive Agreement”). It is not tenable, according to the AFP, to construe “entities” and “other matters” as excluding natural persons as to do so would “suggest that individuals who were not suspects were intended to be excluded from the Second Condition (in circumstances where non-suspect entities were included”.

Jagot J states

It may be accepted that the search warrants identify Schapelle Corby as having committed an offence. However, the second condition of the warrants also identifies “suspects, entities or other matters that are the subject of the investigation”. I do not accept the submission that a natural person may fall within the descriptions “entities or other matters”. The natural and ordinary reading of the second condition is that all of the individuals named in the list are “suspects… that are the subject of the investigation”. The ordinary meaning of a “suspect”, in the context of a search warrant, is a person suspected of having committed an offence. 

The AFP’s submission that no person in the list “could even conceivably be regarded as a “suspect” in the commission of an offence” ignores the terms of the second condition. The submission also assumes both knowledge of the PoC Act (specifically that, despite its title, the Act provides a civil scheme for the recovery of literary proceeds and does not create any offence in connection with the payment of funds which might be recovered as literary proceeds) and that such knowledge would trump the plain words of the second condition. Neither assumption is justified. The AFP called no evidence explaining what occurred before the second and third respondents. No inference may be drawn in the AFP’s favour that the second and third respondents knew about the scheme of the POC Act insofar as it applies to literary proceeds or, if they held that knowledge, that it meant they did not give the search warrant its natural and ordinary meaning that each of the individuals appearing in the list under the second condition were “suspects … that are the subject of the investigation”. 

Damningly, Jagot J states

The issue of a search warrant and a s 246 order are solemn acts issued under the hand of the individual magistrate. They authorise actions which would otherwise constitute trespass and, insofar as searches of the person are concerned, an assault. They represent serious intrusions into private and property rights of which the common law “has long been jealous” (George v Rockett (1990) 170 CLR 104 at 110). Accordingly, the orders and warrants would not have been issued lightly by the second and third respondents. 

These circumstances make it exceedingly unlikely that the second and third respondents failed to consider the terms of what they were issuing (the first possible explanation). It is equally exceedingly unlikely that the second and third respondents considered the terms of what they were issuing and, because they knew the scheme of the PoC Act, knew also that the terms included errors involving accusing numerous people of being suspected of having committed an offence or being suspects in an investigation when there is no offence under the PoC Act, and yet dismissed those matters as “mere clerical errors” and decided to issue the orders and warrants in any event (the second possible explanation). If that was the decision-making process, then it was so unreasonable that no reasonable magistrate could have made the decisions. Yet, accepting this last proposition – attributing to the second and third respondents manifest unreasonableness – is what the AFP’s submissions necessarily involve, once properly analysed. How else can it be said that the erroneous statements – such a prominent part of the s 246 orders and plainly disclosed in the search warrants – played no part in the second respondent’s reasoning process, as the AFP would have it? 

Against these extremely unlikely possibilities is the third possibility identified – that the erroneous and ambiguous statements in the AFP’s material were considered by the second and third respondents as part of a proper consideration of the material as a whole and, in the circumstances of urgency and a lack of any cogent explanation in the material of how the PoC Act operated in respect of literary proceeds, led the second and third respondents to assume the AFP’s statements were correct and that there thus was some offence relating to literary proceeds in the PoC Act, thereby justifying the issue of the s 246 orders and warrants. 

While I have said it is not necessary to make a finding as to which of the three possibilities is correct because each involves legal error sufficient to quash the s 246 orders and search warrants, I have considered these matters because of the way in which the hearing proceeded. In short, the AFP was critical of the applicants for identifying the alternative ways in which they asserted there must have been legal error by the second and third respondents. What the AFP did not acknowledge was that, when analysed, its own submissions – that the second and third respondents must be taken to have considered what was before them and treated the statements in issue as “mere clerical errors” – would have the second and third respondents acting in a manner in which no reasonable magistrate could have acted (that is, by issuing solemn documents identifying people as suspected of having committed and offence and as suspects, who could not be suspects or suspected of any offence given the terms of the legislation on the basis that those statements were a “mere clerical error”). Nor did the AFP acknowledge the fact that, had the second and third respondents done exactly what they could be expected to have done in the circumstances – that is, rely on the AFP to provide cogent and accurate information about the investigation in terms of the scheme in the PoC Act – it is not at all difficult to see how and why the second and third respondents were led into error by the AFP. 

Third, the AFP said that no evidence was placed before the second or third respondents relevant to the commission of any offence by any person other than Schapelle Corby. As discussed above, the material placed before the second and third respondents did identify that Schapelle Corby had committed an offence. However, the problem is the combination of the erroneous statements and what the material did not say. The material did not explain that the PoC Act created no offence in respect of the derivation of literary proceeds, whether by Schapelle Corby in deriving such proceeds or by another person in facilitating that derivation. The material did not explain that a literary proceeds order is not founded upon any such offence, the scheme created by the PoC Act being a civil, rather than criminal, regime. The material did not do these things in the face of statements that the recipients of the s 146 orders were reasonably suspected of having committed an offence and the individuals listed in the third condition of the search warrants were suspects the subject of the investigation. In these circumstances, the fact that the material did not identify the commission of any offence by any person other than Schapelle Corby does not support the AFP’s submission that the erroneous statements played no part in the reasoning process of the second (or, for that matter, the third) respondent. 

Fourth, the AFP said that the erroneous statement appears in each and every one of the s 246 orders and it is “highly improbable” that the second respondent was declaring himself satisfied that each recipient was reasonably suspected of committing an offence. I disagree. The submission assumes that the second respondent, despite the urgent circumstances, the errors and ambiguities in the AFP’s material, and the lack of any cogent explanation in the affidavit as to how the PoC Act operated, knew that the PoC Act did not create any offence relating to the derivation of literary proceeds yet issued orders and warrants asserting that numerous people connected with the Corby family perhaps deriving literary proceeds were suspected of having committed an offence. It is that assumption which is highly improbable. What is not highly improbable is that the second respondent was misled by the AFP, albeit by innocent errors, and wrongly assumed that there was an offence relating to the derivation of literary proceeds and that those involved in facilitating that derivation, accordingly, were reasonably suspected of having committed an offence and were suspects in the investigation.

Earlier this month the Government introduced the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 (Cth), reflecting recommendations by the Parliamentary Joint Committee on Law Enforcement, "to take tough steps to strike at the heart of organised crime” through "the toughest framework possible to target criminal proceeds".

The Minister for Justice has promoted the Bill as

• ensuring that in all circumstances Federal law enforcement is able to seize relevant material such as bank statements, financial records and payslips as evidence in ascertaining the total wealth of the suspect, and what income is legitimate or dirty; 
• ensuring that unexplained wealth proceedings will not be stalled by a suspect simply because they fail to turn up to court; 
• expanding the circumstances in which Federal law enforcement is able to share information obtained under the Proceeds of Crime Act 2002 with appropriate state, territory and foreign authorities; 
•  introducing a new process to lock down dirty money and assets so a suspect can’t hide, spend or offload what the Commonwealth can confiscate.

Trade and Copyright, 1878

'Free Trade in Books — The 1878 Royal Commission on Copyright' by Barbara Lauriat in (2013) Journal of the Copyright Society of the USA comments that

 The doctrine of free trade dominated Victorian policy discussions for decades — including those about copyright law. But the application of free trade doctrine to copyright policy discussions was not at all straightforward. Professed free trade supporters disagreed profoundly on the question of copyright. Some saw it as an illegitimate restriction on trade, while others viewed it as a mode of enforcing a natural property right. Why did the application of free doctrine to copyright policy result in such widely divergent positions on the proper scope and purpose of copyright law? This article attempts to answer that question, focusing on the 1878 Royal Commission on Copyright as illustrative of the extent to which free trade doctrine failed to guide copyright policy consistently. The complex relationship between free trade and copyright is a powerful example of the extent to which political ideologies are not predictive of individual views on the optimal scope of copyright protection. …. 

Although politicians, economists, and authors - and plenty of Victorians were all three - strove to fit copyright law into broader theories, questions of copyright policy and reform did not enter the realm of party politics as such. As Scrutton explained “the reform of the Copyright laws is not a ‘party question’ and authors are not deemed to have votes.” The Copyright Commission illustrates how individuals with similar political and economic views could disagree about exactly where copyright and other kinds of intellectual property fell within the framework of their ideologies and how those with opposing political views could find common ground in their approach to copyright. In 1883, the economist Henry Sidgwick also noted the dilemma faced by those attempting to apply classical economic principles to copyright law.

A different kind of problem has somewhat perplexed and divided the adherents of natural liberty in respect of property in the results of intellectual labour. On the one hand it has seemed clear that the man who works with his brain has as much right to have the fruits of his labour secured to him as the man who works with his hands. On the other hand since the only effective way of protecting such fruits is to prohibit imitation on the part of others, it is not surprising that this very exceptional interference with the freedom of action of those others should have been thought by some persons to conflict with the principles of natural liberty.

For writers like Scrutton and Sidgwick in the 1880s, the Commission’s debates brought this complicated relationship between copyright and political economic thought to the fore. It is a paradox that attracts insufficient attention today. Fundamental philosophical differences about the purpose of copyright law and the empirical challenges presented by assessment of its effects, for good or ill, still make it difficult to assign copyright a role within larger political or economic frameworks. Moreover, the question of copyright law was often viewed as rather difficult, esoteric, and, ultimately, perhaps just not as important as other political and economic questions of the day. In consequence, disagreement about copyright’s normative foundations and the complexity of its application created surprising allies and enemies. The fact that the great minds the nineteenth century had difficulty placing debates over copyright firmly into prevailing economic theories and political agendas provides another compelling reason why the royalty proposals must be set within the context of such theories and agendas in order to be understood.

Protection

'Citizenship and Protection' by Andrew Kent in (2014) 28 Fordham Law Review discusses

 the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States both noncitizens and citizens have had more or less equal civil liberties protections (putting to one side the question of immigration law). But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This essay sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.

Kent notes that

Chief Justice Earl Warren famously described citizenship as “man’s basic right” because “it is nothing less than the right to have rights.” As Justice Robert Jackson put it for the full Court, “Citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar. The years have not destroyed nor diminished the importance of citizenship nor have they sapped the vitality of a citizen’s claims upon his government for protection.” U.S. citizenship—the topic of this Symposium—is thus theorized to be the foundation upon which all other rights rest and the ultimate basis upon which to claim protection against the U.S. government. 

But the actual connection over the course of American history between citizenship, the Constitution, and protection from government overreach has been much more muddled and complex than this. In ordinary peacetime contexts, citizenship has historically played a relatively minor role in demarcating the Constitution’s domain—that is, in determining who is under the umbrella of its civil liberties protections. Most political rights have always been reserved for citizens. And in the immigration context, of course, citizenship can be crucial. But with regard to civil liberties, the practice of U.S. constitutionalism has been to make relatively few distinctions based on citizenship within the United States and during peacetime. 

Instead of citizenship, the primary axes along which the domain of the Constitution’s protections has been demarcated are territorial location, domicile, and enemy status during wartime. For much of American history, constitutional protections stopped at the boundaries of the United States and did not extend to military enemies or persons in war zones, no matter their citizenship. The right to access the courts to claim legal protections, which often is as important as having substantive constitutional rights themselves, was also dependent on enemy status and territorial location more than on citizenship. 

In Part I, this Article summarizes the historical evidence about the role of enemy status, territorial location, domicile, and, to a lesser extent, citizenship in determining who was protected by the Constitution and could access U.S. courts. I also set out the most prominent typologies and theories that legal academics have used to describe the rules setting the boundaries of constitutional protection and contrast them with the actual historical concepts and practices used in earlier eras. 

Part II explores the justifications for these traditional limits on the domain of the Constitution’s protections by addressing two questions: First, why have both citizens and noncitizens generally been protected by the Constitution and courts while in the United States? Second, why have protections ceased—entirely for noncitizens and to a lesser extent for citizens—when they are outside the sovereign territory of the United States or when they are military enemies? Having explored the reasons why noncitizens have historically received robust protections while within the United States, this Article suggests that some additional protections for noncitizens present in the United States might be warranted. In particular, I suggest that there should be a rebuttable presumption that noncitizens in the United States during peacetime have equivalent constitutional protections to citizens. The lack of extraterritorial constitutional rights for noncitizens and for military enemies has been subjected to sustained criticism in recent decades. This Article acknowledges those criticisms, but suggests that there are some reasonable justifications for limiting constitutional protection to the traditional domains. Before proceeding, I want to note the limits of this discussion, which is focused on the national security and foreign affairs context. Over the course of American history, women, slaves, African Americans including freed slaves, suspects and defendants in state and local criminal cases, incarcerated convicts, the institutionalized mentally ill, and other groups have moved from largely or entirely outside the domain of the Constitution’s and the courts’ protections to their current position inside. Indeed, in many ways, the enlargement of the domain of protection has been the most important part of the story of U.S. constitutional development. Here I am talking instead about contexts involving national security and foreign affairs. Thus, when I say that enemy status, territorial location, domicile, and, to a lesser extent, citizenship determined the domain of the constitutional protections, I do not mean to slight the importance of race, gender, and other categories. Those topics are critically important, but are not mine in this Article.