Affinity and embezzlement

'HJ (Iran) and Another - Reflections on a New Test for Sexuality-Based Asylum Claims in Britain' by Janna Maria Wessels in (2012) 24(4) International Journal of Refugee Law 815 comments that

The case HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 was celebrated as a ‘fundamental shift in asylum law’. In this decision, the UK Supreme Court rejects the ‘reasonably tolerable test’ that had been applied in the case of the gay men HJ, a 40-year-old Iranian, and HT, a 36-year-old citizen of Cameroon. On the basis that the claimants could be reasonably expected to tolerate being discreet about their sexual identity in order to avoid persecution, their applications had been unsuccessful. This ‘reasonably tolerable test’, which was fairly well established in case law, was much contested and its rejection was overdue. Yet in their decision, the Justices not only reject this old test, they go a step further and formulate a new approach to be followed by tribunals in asylum claims on grounds of sexual orientation.

This article argues that this new approach fails to discard ‘discretion’ as a concept in asylum cases as a whole, contrary to the submissions of the intervening parties in the case, namely, UNHCR and the Equality and Human Rights Commission. The new test continues to be constructed on ‘discretion logic’ – which is not tenable for a series of reasons. First, the test creates two distinguishable categories, openly demonstrated sexuality and concealed sexuality. Secondly, it assumes that this distinction and the underlying choice are relevant for assessing whether the applicant is at risk of persecution. Finally, the case relied heavily on the subjective element of assessing the ‘fear’ of persecution, which leads to a stricter test than necessary. The assessment of the existence of a well-founded fear of persecution in LGBT cases should instead be made without reference to whether or not the applicants would conceal their sexual orientation.

Last year I noted the exposure of Hohepa Morehu-Barlow, the Queensland Health manager who snaffled a mere $16.69 million between 2007 and 2011, an appropriation disguised by claims that he was a Taghitian or Maori prince. In March this year he was sentenced to 14 years' imprisonment after pleading guilty to eight offences that including aggravated fraud and forgery.

A report by the Queensland Crime and Misconduct Commission has now attributed the fraud to

• low-levels of compliance with existing policy and procedures by other staff;
• failures of financial management and accountability;
• failures in supervision and management;
• low awareness of the risk of fraud among staff at all levels; and
• failure to properly investigate information provided in audits and complaints and evaluate that information in a wider context.

Fraud, financial management and accountability in the Queensland public sector: An examination of how a $16.69 million fraud was committed on Queensland Health states

Queensland Health (QHealth) identified a fraudulent transaction of $11 million of public funds paid to Healthy Initiatives and Choices (HIC), a trading name registered to one of its own employees, Hohepa Morehu-Barlow (Barlow). Further investigation identified this transaction to be the latest in a series of 65 fraudulent transactions totalling $16.69 million and committed over a four-year period commencing October 2007. 

Barlow’s fraud may be the single largest fraud ever committed in the Queensland public sector. The real cost to the State would be even greater, not only in the initial loss of millions of dollars of public money, but also in the cost of the multiple agencies required for follow-up investigations and recovery action, and in the damage to public confidence in financial management across the public sector. Given the enormity of the fraud perpetrated against QHealth, two key questions arise: • How equipped were QHealth’s management systems and internal controls to handle the risk posed by an employee intent on committing fraud? • What can other public sector agencies learn from the QHealth experience? 

This report gives an account of the fraud committed by Barlow over those four years. It provides a narrative of the main events surrounding Barlow’s fraudulent activities between September 2007 and December 2011, and describes the impact of that discovery. It is directed to Parliament and the general Queensland community and, most of all, to senior managers and other employees in the Queensland public service. It aims to: 1. highlight public servants’ responsibilities — and accountability — as stewards of public money 2. raise their awareness of the potential for fraud in the workplace, of their own responsibilities to prevent it and, finally, of the high cost of managerial inaction. 

For that reason, the report includes a summary of the lessons to be learned from the QHealth experience — the factors that allowed the fraud to be committed and remain undetected for so long, as well as recommendations to managers and staff of public agencies.

The report notes that

After the criminal proceedings involving Barlow were finalised, the CMC sought formal orders to have the restrained assets returned to the State, and on 13 June 2013 a forfeiture order of approximately $11.88 million was granted by the Supreme Court in Brisbane. 

The Supreme Court also granted a proceeds assessment order of $20,058,389,8 representing the total benefit derived from Barlow’s fraud. The order offset the value of the forfeited assets against the value of the proceeds assessment order. This returns all possible assets to the State, while recognising the full cost of Barlow’s fraud.

Vetting problems were evident. The CMC indicates that

Joseph Hikairo Barlow was born in New Zealand on 13 February 1975. The curriculum vitae Barlow provided to QHealth stated that he received a number of tertiary qualifications and academic awards in New Zealand between 1995 and 1999. However, inquiries conducted by the QPS confirm that Barlow does not, in fact, possess any tertiary-level qualifications. A Transcript of Academic Record from Victoria University shows that in 1996 Barlow commenced, but failed to complete, a Bachelor of Commerce and Administration and a Graduate Diploma in Professional Accounting. There is no evidence he received any academic awards. 

On 4 August 1999, Barlow was convicted and sentenced in the Wellington District Court for “theft as a servant” and “using a document”. The offences occurred while Barlow was employed in the New Zealand Internal Revenue Department. 

On 10 May 2001, Barlow changed his name by deed poll to Hohepa Hikairo Morehu-Barlow, and on 31 March 2003 he left New Zealand and moved to Australia. In July and August 2003, Barlow was recorded as being wanted in New Zealand for questioning in relation to a fraud committed while employed as a private contractor to a steering group funded by a New Zealand Government department, and in relation to another fraud committed after his employment with a private business was terminated due to theft.

Barlow’s initial employment with Queensland Health Barlow was as contractor in a position obtained through an employment agency. In 2005 he accepted a temporary position as an Assistant Finance Officer. A former colleague said that when Barlow started working for QHealth in 2004 his lifestyle was beyond the means of his QHealth wage. He said Barlow told QHealth employees that he was Tahitian royalty and made it known that he had a trust fund but needed to have a job to access it….

On 29 August 2007, QHealth’s ESU received a complaint alleging that Barlow (under the name Hohepa Morehu-Barlow) had misused an official QHealth vehicle. It was alleged Barlow did not return the vehicle on the date specified in the log book and used the vehicle for an unauthorised purpose. The complaint arose out of a speeding fine. According to the complaints management arrangement in place at the time between QHealth and the CMC, QHealth reported the complaint to the CMC on 4 October as a matter of routine. The matter was referred to QHealth to deal with, and the CMC was to be advised of the outcome of the matter once it was finalised. There was nothing in the first complaint against Barlow that would have identified him as a potentially serious fraud risk. However, due to an extensive delay in QHealth’s handling of this complaint, it was not until December 2010 that Barlow received a letter from an Acting Deputy Director-General (DDG) asking him to explain the allegation. ... 

From September 2007, Barlow began to perform higher duties as an AO7 in the position of Principal Finance Officer (PFO).17 In this position, Barlow gained reporting and monitoring responsibility for QHealth grants cost centres, including the Minister’s Grants in Aid (MGIA) and Non Government Organisation Support (NGOS) cost centres. On 3 October 2007, 12 days after commencing as the PFO, Barlow established Muse Business Inspiration (The Muse) as a QHealth vendor. The Muse was a business registered to Barlow’s neighbours, established to work in the areas of strategy, communications, policy and advocacy, and dealing mainly with not-for-profit organisations and small businesses. Barlow signed the vendor set-up form for The Muse as authorising officer. No vendor address was included in the form and no Australian Business Number (ABN) search was attached to the form. The following day, Barlow authorised the first fraudulent payment of $2200.6120 to The Muse using a GPV. He authorised subsequent fraudulent payments to The Muse on 29 October ($2200.61) and 10 December ($6601.80), bringing the total of money defrauded from QHealth at the end of 2007 to $11,003.02.

The bells weren't ringing, despite  complaints about Barlow’s conduct and work performance

Relatively early in his employment, staff began voicing concerns about Barlow’s poor attendance and work performance. This would be a recurring pattern throughout his time at QHealth.

• Finance Officer 3 said Barlow was never in the workplace before 10 am and was a very inconsistent worker. He would disappear for lunch breaks for hours on end and didn’t complete timesheets. Often he would not turn up for meetings. He also generated more workload for other staff members as he didn’t respond to requests. Finance Officer 3 said he mentioned his concerns to Barlow’s supervisor, Manager 1, on a number of occasions  and was aware other staff had complained about Barlow’s conduct. 

• An officer who worked with Barlow in 2007 said Barlow was very difficult to deal with: ... because of his spotty attendance at work and he wasn’t very responsive ... For a whole year that I was involved with budgets, we had many meetings with Ho ... He would say he would sort it out, but wouldn’t and in the end we would go through the same thing again and it was never sorted ... 

• Finance Officer 2 said Barlow bullied him and other staff and recalled a number of staff members crying because of the way Barlow treated them. He said Barlow did not complete timesheets, regularly started work late and sometimes left early, and took a lot of leave without pay in block periods; however, he appeared to be on top of his work requirements. 

• Sometime in 2008, Manager 1 asked an officer to reconcile a budget previously managed by Barlow. The officer identified that there were no controls over the payments being made and told Manager 1 that “budgeting wasn’t Barlow’s strong point”. Once he had reconciled the budget, the officer said Barlow bought him a new iPhone to thank him for not making an official complaint about Barlow’s mismanagement of the budget. However, he had refused to accept the gift. The officer also said Barlow regularly arrived at work between 12 and 3 pm, and treated junior staff with contempt — for example, telling them to pick up his dry cleaning and get him coffee. The officer reported both the gift and his concerns about Barlow’s conduct to Manager 1 and another senior officer. He said Barlow’s supervisors tried to deal with his conduct, but Barlow would just take leave to avoid the issue. Manager 1 did not remember any complaints about Barlow’s ability to do his job, but recalled speaking to Barlow twice about his unexplained absences. 

After Barlow was chastised, his attendance improved for a period of time but then deteriorated. When Manager 1 again raised the issue, Barlow explained that he had a serious illness and was having some difficulty coping with the resulting mental and physical demands. Manager 1 said he gave Barlow considerable latitude with leave because of his alleged illness. The considerable extent of Barlow’s leave can be seen in QHealth records: during the period from December 2005 to July 2009, in addition to over 16 weeks of recreation leave, he took over 11 weeks of “other” leave.

Despite the recurring performance and conduct issues, Barlow was permanently appointed as PFO in May 2009. Throughout 2008, he continued to engage in fraudulent behaviour. For example he signed a letter to Queensland Transport in relation to demerit points accumulated by a friend and referred to himself as a “solicitor” and “legal counsel” and in a letter to the Fortitude Valley Police Station  referred to himself as a solicitor for the state government. For his final payment to The Muse, Barlow attached supporting documentation which included an unsigned and undated Ministerial letter, purportedly from the then Minister for Health Barlow acknowledged that he exploited the trust of staff he asked to sign documentation, saying

they all knew me as ... the Prince ... so what would I want with a lousy $200,000 dollars ... So for them you know, maybe trust was a big issue.

Fraudulent payments for “consultancy services”  were paid into Barlow’s neighbours’ joint bank account, with electronic  transfer to Barlow’s bank account. Barlow’s neighbour indicated he never gave Barlow access to or control of this account but said Barlow had the opportunity to obtain the internet banking details when he looked after their apartment in 2006.

Barlow prepared and authorised the vendor set-up process to establish “Healthy Initiatives and Choices” (HIC) as a QHealth vendor. HIC was a trading name registered to Barlow as the individual operator and owner, and was registered to his home address. The ABN was registered two days after the date of the HIC invoice attached to the vendor set-up form.  The QPS established that Barlow opened the bank accounts associated with HIC and had sole access to them. When interviewed by CMC officers, Barlow confirmed he established HIC for the sole purpose of perpetrating frauds against QHealth.

When asked what he considered to be the likelihood of being caught submitting the vendor set-up form for HIC, Barlow said: ... a simple ABN search would have stopped this in the beginning and later, ... it could of easily been found out and stopped had the Finance Business Centre done its due diligence. 

Asked what would have happened if the checks had been done, Barlow said “I would of had to deal with it but it was a gamble”. He said that he thought there was a very good chance the form wasn’t going to get through, but he was prepared to take that risk.

In June 2009 Barlow authorised another two fraudulent payments to HIC, bringing his total fraudulent gains in the first half of 2009 to $482,494. In February he had hosted and paid for his birthday party at a Fortitude Valley bar, which was attended by some QHealth staff and was reported to have cost about $130,000. In  August the CMC received an anonymous email complaint alleging that Barlow (under the name Joseph Hikairo Barlow) was defrauding QHealth and was due to leave Australia on 24 August 2010 “to start a new life of luxury” in Paris. The complaint also listed a number of his aliases.

Based on set criteria established by the CMC, the CMC officer responsible for handling the complaint determined: • The complaint did not meet the criteria of a Category 1 (the most serious) complaint because it did not specify that a substantial amount of money was being defrauded, did not allege that the fraud was being committed by a very senior officer, and did not indicate that the fraud was systemic. • The matter did not involve a public interest disclosure (PID), as set out by the Public Interest Disclosure Act 2010. PIDs about official misconduct can only be made by public sector employees and there was no information to indicate that that was the case. Because the complaint was made anonymously, there was no way to contact the complainant and seek further detail about the allegations. 

Criminal history checks were not done as the complaint concerned an agency whose Ethical Standards Unit included a seconded police officer who could do them. Barlow’s complaints history was not checked, as this was the responsibility of QHealth under the complaints management process in place at the time. 

The CMC officer did not respond in a timely way to the information in the email stating Barlow’s proposed date of departure from Australia. However, that part of the anonymous complaint was not accurate, as Barlow did not in fact leave the country for Paris on that date. As a result, the complaint was not sent to QHealth until the day that Barlow was allegedly intending to leave the country. …

Barlow’s conduct and performance continued to be erratic -

• An officer who worked with Barlow said he “was pretty much always late for work. I don’t think he would have got to work any day before 10.00 am.” 

• A senior officer in Barlow’s previous work unit said he complained to Manager 3 about Barlow’s poor work performance: that he failed to complete normal processes, hardly ever showed up for work, and failed to deliver on what he promised to do.  The senior officer also spoke to Manager 2, Barlow’s direct supervisor in Finance, about Barlow’s poor work performance. The senior officer said he believed that Barlow could not fulfil the functions of the PFO position and thought Barlow provided poor service to his unit.   Manager 2 said the senior officer did not raise any issues with him about Barlow’s work performance. 

• An officer who worked with Barlow said: I used to think it was strange that Ho used to come to work at about eleven o’clock then leave about two and worked so little. He then got promoted to manager of governance. He also used to come into work later after we had all left. He would sign in using Facebook to let everyone know he was working late. 

• Finance Officer 3 was asked to fix some budget reporting problems, which were Barlow’s responsibility. He discovered the budget reports were being “flatlined” (no variance was recorded) and did not reflect the true state of the budgets. Finance Officer 3 said he spoke to Barlow “lots of times” while he was trying to fix the budget reports, and Barlow was “not impressed” with his inquiries. 

• Manager 2 said he had concerns with Barlow’s conduct including timeliness of reports, non-completion of timesheets, and hours worked. He brought these issues to Manager 3’s attention and he assumed that Manager 3 raised the issues with Manager 4. 

• Manager 3 was aware of various issues related to Barlow’s conduct, such as working irregular hours, providing questionable reasons for his sick leave, and not providing payroll forms (such as sick leave and annual leave) despite constant requests. 

• Manager 3 said he often spoke to Manager 4 about his concerns with Barlow, but Manager 4’s response was “well that’s Ho”. He believed Manager 4 defended Barlow and had faith in his abilities.  During the period from August 2009 to December 2010, Barlow took over four weeks recreation leave and over ten weeks of “other” leave. During that period, he was absent from work 23 per cent of the time. Manager 3 said he attempted to address Barlow’s attendance issues.  According to Manager 3, he met with Manager 4 sometime in late 2010 to discuss his concerns about Barlow’s performance, saying he thought he needed to put Barlow on a performance management plan. Manager 3 said Manager 4 said he was going to put Barlow into an AO8 position in Governance. According to Manager 3, Manager 4 said “leave him to me, he’s not going to be a problem anymore, we are going to put him in the Governance role”.  Although Manager 4 says he does not recall this conversation, this move did occur.

And on it goes.

The report notes that

The CMC located an unsigned personal character reference for presentation to an unspecified court, dated 11 January 2011, in which Barlow stated he was a qualified solicitor admitted to the Supreme Court of Queensland and was the “1st son of the Royal Family of Tahiti”. The CMC also located a personal character reference in Barlow’s name for presentation to the Presiding Magistrate, Southport Magistrates Court in relation to a “family friend”. The document was written on official QHealth letterhead and included the qualification “LLB”  in his signature block.

CNIL and Google

Posts in this blog have noted criticism (eg here and here) by European data protection authorities of Google.

Last year those authorities, through France's Commission nationale de l’informatique et des libertés (CNIL), stated that

Google provides insufficient information to its users on its personal data processing operations:

Under the current Policy, a Google service's user is unable to determine which categories of personal data are processed for this service, and the exact purposes for which these data are processed.

E.g.: the Privacy Policy makes no difference in terms of processing between the innocuous content of search query and the credit card number or the telephone communications of the user ; all these data can be used equally for all the purposes in the Policy.

Moreover, passive users (i.e. those that interact with some of Google's services like advertising or ‘+1' buttons on third-party websites) have no information at all.

EU Data protection authorities remind Google and internet companies in general that shorter privacy notices do not justify a reduction of information delivered to the data subjects.

EU Data protection authorities ask Google to provide clearer and more comprehensive information about the collected data and purposes of each of its personal data processing operations.

For instance, EU Data protection authorities recommend the implementation of a presentation with three levels of detail to ensure that information complies with the requirements laid down in the Directive and does not degrade the users' experience. The ergonomics of the Policy could also be improved with interactive presentations.

Google does not provide user control over the combination of data across its numerous services:

Combination of data across services has been generalized with the new Privacy Policy: in practice, any online activity related to Google (use of its services, of its system Android or consultation of third-party websites using Google's services) can be gathered and combined.

The European DPAs note that this combination pursues different purposes such as the provision of a service requested by the user, product development, security, advertising, the creation of the Google account or academic research. The investigation also showed that the combination of data is extremely broad in terms of scope and age of the data.

E.g.: the mere consultation of a website including a ‘+1' button is recorded and kept during at least 18 months and can be associated with the uses of Google's services; data collected with the DoubleClick cookie are associated to a identifying number valid during 2 years and renewable.

European Data Protection legislation provides a precise framework for personal data processing operations. Google must have a legal basis to perform the combination of data of each of these purposes and data collection must also remain proportionate to the purposes pursued. However, for some of these purposes including advertising, the processing does not rely on consent, on Google's legitimate interests, nor on the performance of a contract.

Google should therefore modify its practices when combining data across services for these purposes, including:

• reinforce users' consent to the combination of data for the purposes of service improvements, development of new services, advertising and analytics. This could be realized by giving users the opportunity to choose when their data are combined, for instance with dedicated buttons in the services' (cf. button “Search Plus Your World”), 

• offer an improved control over the combination of data by simplifying and centralizing the right to object (opt-out) and by allowing users to choose for which service their data are combined 

• adapt the tools used by Google for the combination of data so that it remains limited to the authorized purposes, e.g. by differentiating the tools used for security and those used for advertising.

Google does not provide retention periods

Google refused to provide retention periods for the personal data it processes.

The recommendations of the EU Data protection authorities have been sent to Google to allow the company to upgrade its Privacy Policy practices. This letter is individually signed by 27 European Data protection authorities for the first time and it is a significant step forward in the mobilization of European authorities.

Several recommendations are also supported by members of APPA (Asia Pacific Privacy Authorities) and Canada's federal Privacy Commissioner has had similar concerns about various Google activities.

The CNIL, all the authorities among the Working Party and data protection authorities from other regions of the world expect Google to take effective and public measures to comply quickly and commit itself to the implementation of these recommendations.

CNIL has now noted Google's failure to comply with the deadline an enforcement notice.

CNIL appears to be moving towards a formal sanction. The penalty - 300,000 euros ($432,000) - has a symbolic value.

In June CNIL ordered Google to comply with the French data protection law - the 1978 Loi Informatique et Libertes [PDF] - within three months.

In particular Google was to:

• Define specified and explicit purposes regarding data collection and processing; 
• Inform users with regard to the purposes of the processing; 
• Define retention periods for the processed personal data ; 
• Not proceed, without legal basis, with the potentially unlimited combination of users’ data; 
• Fairly collect and process passive users’ data; 
• Inform users and then obtain their consent in particular before storing cookies in their devices. 

Google has been unresponsive.

CNIL states that

On the last day of the three-month time period given to Google Inc., the company contested the reasoning followed by the CNIL, and notably the applicability of the French data protection law to the services used by residents in France. Therefore, it has not implemented the requested changes. In this context, the Chair of the CNIL will now designate a rapporteur for the purpose of initiating a formal procedure for imposing sanctions, according to the provisions laid down in the French data protection law.

Portability and De-dutification

'Social Security for Migrant Workers and Their Families in Australia' by Anna Katherine Boucher and Terry Carney in Social Security and Migrant Workers: Selected Studies of Cross-Border Social Security Mechanisms (Kluwer, 2013) edited by Blanpain, Olivier and  Arellano Oritz comments

Australia is often identified as an immigration success story. The economic performance of immigrants to Australia in recent decades has been lauded by government and from within academia. The depiction of Australian immigration as highly skilled and economically self-reliant underplays the role of welfare state retrenchment in redirecting the economic support provided to new immigrants by the state towards immigrant families. In this paper, we sketch the provision of social security payments to newly arrived immigrants across the economic and family reunification visa classes and since restrictions upon benefits first began in 1992/3. We also outline what trends towards temporary economic immigration represent for long-term welfare eligibility of new immigrants, and how changing source countries shift expectations around welfare portability and reciprocity for immigrants over the longer term. In doing so, we argue that these recent trends in immigration policy represent a movement away from residual state support for Australian citizens, permanent residents and newly arrived immigrants alike, towards a differentiated system, where familial support is expected for new immigrants but not for others in the Australian labour market. We also sketch the dissonance between this provision and international legal norms. This paper relies upon legal analysis and unpublished statistical data from the Continuous Survey of Immigrants to Australia.

'EU Citizenship without Duties' by Dimitry Kochenov in (2014) European Law Journal comments

 Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims.

1. There are no empirically-observable duties of EU citizenship;

2. Such duties would lack any legal-theoretical foundation, if the contrary were true;

3. Legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level;

4. EU law plays an important role in undermining the ability of the Member States where residual duties remain, to enforce them;

5. This development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world.

If these conclusions are correct, it is time to stop categorizing EU citizenship duties among the desiderata of EU law. ... The situation with citizenship duties is such, that there is a clearly decipherable trend of moving away from duties-inspired rhetoric and law, since the functions of uniformisation and discrimination that duties have been traditionally playing are of no use anymore for the modern democracies. The lack of a legal-philosophical ground for being serious about duties makes the arguments of those favouring a duty-based approach to citizenship even less appealing, particularly when not only the general duties-rights correlation, but also the moral duty to obey the law as such are not there. This is the context against which the empty word ‘duties’ in Article 20 TFEU is to be read. Moreover the Union actually reinforces the trends described above by indirectly obstructing the ability of the Member States where residual duties remain to enforce those, thus shielding some of their nationals from abuse. The Union clearly limits the possibility of the Member States to empower government authority vis-à-vis the individual. In this respect, what Weiler called the ‘fundamental boundaries’ is obviously affected by Union law. Weiler is absolutely right in stating that the balance between the ‘fundamental rights’ and ‘fundamental boundaries’ is at the core of any democracy and that joining the EU clearly narrows the ‘margin within which states may opt for different fundamental balances between government and individuals’ to a great extent. In fact, it means questioning the state on virtually any occasion – an additional guarantee against harmful or inexplicably regulation.

In this context, Joppke is absolutely justifiably ironical while critiquing Weiler’s view of citizenship eroded by rights and failing to act as a ‘shield against existential aloneness’. Reality has to be acknowledged and it is quite unequivocal: thick attachments, and with them the duties are largely gone in practice and would not be justifiable in theory either. Given that the same processes are going on at the supranational and the national level, there is no reason to believe that the Union where there are no citizenship duties and where rights and freedoms play the essential role as a starting point of legal thinking, should tolerate radically different ideologies in the Member States. To claim that the Member States should be free to do whatever they want with EU citizens who happen to be their nationals is legally unsound. The whole point of the Union is that our core values are shared after all.

Being straight about the word ‘duties’ mentioned in the Treaty helps better understand the functioning of EU law vis-à-vis the citizens: Kymlicka is absolutely right, claiming that in essence EU law is busy diffusing liberal nationhood. In the context of EU citizenship duties this means that by naturally opposing the totalitarian elements of the national conceptions of citizenship in the Member States, the EU also profoundly undermines their ability to have enforceable citizenship duties in place. Where such atavistic duties remain, EU law offers an easy escape, since its own fundamental freedoms always prevail. Classical case-law on requiring Member States to issue long-term residence permits to the Greek residents within their borders no matter what Greece thinks about these persons’ duty to serve in the Greek military is informative in this regard. If Greek law humiliates its citizens by refusing them passports unless they submit to the draft, the reaction of the ECJ requiring the issuance of residence permits without any Greek passports presented is only rational: liberty meets nationalism and prevails. By analogy, any time an EU fundamental freedom is in conflict with a local citizenship duty, the former is bound to prevail in the majority of cases. The decline in the Member States’ ability to impose the duties of citizenship is thus directly connected to the very essence of the EU’s constitutional arrangement, correlated with a necessary loss in the individual sovereign normative capacity. The EU allows for voting with one’s feet: those who dislike local citizenship duties are always free to go elsewhere. The EU thus functions as a promoter of the liberal de-dutification trend which is observable in the majority of contemporary democracies anyway.

It is not surprising that the Member States might view such developments as problematic: opening up citizenship to competition is akin to allowing the sale of land – thus removing another important feudal vestige – that happened in England, to give one example, less than a hundred years ago, which clearly threatened – and in the end was an important factor in changing – the social order of the day. Similarly, liberating citizens from non-refutable state claims to duties seriously changes the rules of the game. Instead of being coerced into performing actions deprived of any sense only because the State so wants, citizens are recognized as autonomous actors having the will of their own, of whom not only submission is required. When citizenship competition opens up, with national systems of citizenship losing, once and for all, their monopolistic status, this results in the creation of radically different bonds attachment between states and their populations, which is now based on choice, not only on the chance of birth. In the words of Davies, ‘Belgians are those who choose Belgium’. Competition between the Member States for the citizens who freely choose to call certain countries their home is thus the key element of the operation of the Internal Market that is valuable as a promoter of freedom. This kind of development is not contrary, but is in fact fully in line with a general trend in citizenship evolution described by Joppke, which co-accommodates increasing objective with decreasing subjective value of citizenship.

Kochenov concludes - Basing a legal system on rights, rather than duties, is not an arbitrary choice: it reflects the essential assumption that people should be free, which also includes freedom to determine the meaning of right and wrong, failure and success etc. in the context of the personal projects they pursue – a gift of freedom unthinkable in a system of pre-existing prescriptions which necessarily underlie the concept of duties. Should citizenship be pared with freedom, there is no place for duties within the auspices of this concept. This is exactly what we observed in the context of citizenship’s evolution. There has never been any ‘shortage of sheep-like subjects’ that the duty-oriented vision of citizenship promotes. Yet, active engagement and the reshaping of the right and wrong in any given context, including a supranational Union, necessarily requires a rights-based approach to membership. This article confined itself to making five interrelated points. ... In the light of these findings it is unquestionable that there is no room for EU citizenship duties in the edifice of EU law.

Positive

'Sex-Positive Law' by Margo Kaplan in (2014) 87 New York University Law Review argues that

Sexual pleasure is a valuable source of happiness and personal fulfillment. Yet several areas of law assume just the opposite — that sexual pleasure in itself has negligible value, and we sacrifice nothing of importance when our laws circumscribe it. Many laws even rely on the assumption that sexual pleasure merits constraint because it is inherently negative. These assumptions are so entrenched in our law that they remain largely unquestioned by courts, legislatures, and legal scholarship.

This Article exposes and challenges the law’s unspoken assumption that sexual pleasure has negligible or negative value and examines how rejecting this assumption requires us to reconceptualize several areas of law. Until now, legal scholarship has lacked a robust analysis of how deeply this assumption runs through various areas of law and how fundamentally the law must change if we reject it. This Article fills that gap and provides a framework for "sex-positive" law that appropriately recognizes the intrinsic value of sexual pleasure. Such an approach transforms the debate surrounding several areas of law and requires lawmakers and legal scholars to undertake a more honest assessment of what we choose to regulate, what we fail to regulate, and our justifications for those choices.

Kaplan concludes -

Valuing sexual pleasure yields a more complete assessment of the true harms and benefits of the activities we regulate. This Article focuses on three areas of law that are most directly related to sexual conduct and state regulation of sexual practices. But implications for sex-positive law extend beyond these areas.

1. Family Law

Family law involves many implicit assumptions about sex and sexual pleasure. To a certain extent, family law privileges sex. The family unit is defined through the (usually heterosexual) sexual relationship of the primary partners; this privileges sexual relationships over non-sexual relationships. But this privileging is limited in ways that reflect an underlying fear of and disgust with sexual pleasure. Sex is valued only insofar as it furthers marital or marital-like relationships. Such relationships transform the otherwise harmful or low-value sexual pleasure it into something worthwhile—marriage and family relationships. A sexpositive approach may shake some of the core foundations of family law. If sexual pleasure need not be channeled into something positive—if it is positive in itself—then marriage may lose some of the justification for its privilege.

2. Sex Work and Prostitution

A sex-positive framework may also challenge some of the justifications for criminalizing sex work. Sex exchanged for cash is stripped to a transaction of pleasure for pay. It does not contribute to the more traditional and acceptable goals of marital relationship or emotional intimacy, thus it is devoid of constitutional protection. Legal scholarship has generated several arguments in favor of sex work prohibition and countervailing arguments about the potentially more harmful effects of prohibition. Some of the rationales for prohibition rely on a moral distaste for sexual pleasure stripped of intimacy and engaged in for its own sake. Attributing more value to sexual pleasure in itself undermines these arguments.

3. Rape Law

Valuing sexual pleasure provides no license to experience that pleasure at the expense of another’s sexual autonomy, just as valuing the pleasure one derives from art does not require us to allow an individual to steal another’s painting or assault an unwilling individual as part of a performance art piece. In fact, valuing of sexual pleasure can strengthen rape law justifications. While traditional rape law may value the defendant’s sexual pleasure in some ways, it often ignores the victim’s sexual pleasure. Sexual violence and sex that takes place in the absence of consent undermine an individual’s choices about how to experience pleasure and, in consequence, her ability to experience it at all. Several feminist scholars have argued that the way in which laws allow defendants to presume consent from lack of resistance or passive silence reinforces traditional gender roles, victimizes women, and ignores the victim’s sexual trauma and the subsequent harm it may do to her ability to have positive sexual experiences. It is grounded in and reinforces men as passionate and pleasure-seeking and women as the gatekeepers to sexual pleasure who must affirmatively and clearly ward off unwanted sexual advances if their sexual preferences are to be respected. This ignores the importance of the sexual pleasure of the woman and her ability to determine when and how to experience that pleasure.

Yet even the reforms pressed by feminist scholars risk continuing to marginalize female sexual pleasure. As Katherine Franke has argued, feminist legal scholarship tends to focus on male sexual pleasure while ignoring female sexual pleasure. Such scholarship consistently posits sex as a negative experience for women in which they submit to men’s desires. This echoes traditional rape law’s view that women are passive recipients of male sexual desire and without desire of their own. Feminist legal theory’s failure to focus on women’s sexual pleasure—or to minimize it to simply an absence of male aggression—reinforces these limiting stereotypes and marginalizes the actual experiences of women. A truly sex-positive view of rape must acknowledge the importance of sexual pleasure for many women and the way that rape law marginalizes women’s sexual desires by limiting their ability to live as sexual beings who can freely decide how and when to experience sexual pleasure. It should acknowledge that defining rape is about defining what is good about sex and not merely what is bad.

Sex-positivity enriches our understanding of consent because it posits that sex is to be enjoyed and not merely endured, and that sexual interactions should be characterized by enthusiastic consent rather than mere silence or acquiescence. Accepting sexual pleasure as a good thing enables us to distinguish the non-consensual sex and violence that are not acceptable. It may also highlight some of the limits of criminal law in preventing rape. Sex-positivity requires a more honest conversation about how individuals think about and engage in sex and how assumptions about sex and sexuality contribute to the problem of rape. Such a conversation must include an analysis of the deeper social, cultural, and economic drivers of rape. The criminal justice system, defined primarily by prohibition and punishment, is ill suited to take on this broad challenge. Such policy changes must also contend with the fact that rape exists on a wide spectrum of behavior that reflects and reinforces rape culture. While the definition of rape ought to be broadened to include many of these behaviors, criminalization may be inappropriate for others. A sex-positive view of rape could inspire legal and policy changes in other areas to rise to these challenges. In particular, policies that use a public health model might be better suited to change entrenched views about sexuality and how we use our bodies to interact with the bodies of others.

Final Thoughts

Recognizing and appreciating the value of sexual pleasure undermines some of the fundamental assumptions that run through several areas of law. It alters the organizing principles that legislatures, courts, and scholars use to frame the debate on these topics. It does not prohibit the regulation of activities that provide sexual pleasure. Instead, it enriches our conversation about such regulations by requiring legislatures, courts, and legal scholars to be honest about these the costs and benefits of these laws. Such honesty can yield better laws and policies by requiring us to re-examine our justifications for what we regulate and how we regulate.

US IP Commission

Catching up with the report [PDF] of The Commission on the Theft of American Intellectual Property, a nongovernment entity associated with The National Bureau of Asian Research and concerned to

• Document and assess the causes, scale, and other major dimensions of international intellectual property theft as they affect the United States 
• Document and assess the role of China in international intellectual property theft 
• Propose appropriate U.S. policy responses that would mitigate ongoing and future damage and obtain greater enforcement of intellectual property rights by China and other infringers.

Some sense of the document is provided by the over-enthusiastic Acknowledgements -

We present this report to the American people for their consideration. The Commission on the Theft of American Intellectual Property reached consensus on its insights and recommendations after a thorough and independent investigation of one of the most pressing issues of economic and national security facing our country. We investigated the scale and complexities of international intellectual property (IP) theft, the driving forces behind it, and its consequences for Americans. We collected the evidence, formed assessments, and developed a set of policy recommendations for Congress and the Administration.

This Commission is composed of extraordinary members. We are indebted to our fellow Commissioners for their contributions. They have brought to the Commission diligence, selfless bipartisanship, and tremendous expertise and wisdom. Coming from industry, defense, advanced education, and politics, and with senior-level diplomatic, national security, legal, and other public policy experience, they span the spectrum of American professional life that has huge stakes in IP rights. They have our deepest appreciation.

The Commission reached out to many remarkable specialists and leaders who shared their experiences and perspectives as we developed an understanding of the problem and a very rich set of policy recommendations. Business leaders with whom we spoke provided inputs anonymously; they represent a cross-section of companies that deal with the problem of IP theft, as well as trade associations with major interests in the problem and its solutions. Other interlocutors were officials from Republican and Democratic administrations, policy analysts, lawyers, economists, international trade experts, and international relations and area specialists. We benefited from the efforts of those in the U.S. government who have been working hard on these issues for years. We thank them for their work and hope that our shining the spotlight on the facts and recommending strong policy make their goals more achievable.

The Commission’s staff was exemplary ...

Enough with with the extraordinary exemplary selfless tremendous wonderful amazing diligent etc.

The Commission reports that

The scale of international theft of American intellectual property (IP) is unprecedented—hundreds of billions of dollars per year, on the order of the size of U.S. exports to Asia. The effects of this theft are twofold. The first is the tremendous loss of revenue and reward for those who made the inventions or who have purchased licenses to provide goods and services based on them, as well as of the jobs associated with those losses. American companies of all sizes are victimized. The second and even more pernicious effect is that illegal theft of intellectual property is undermining both the means and the incentive for entrepreneurs to innovate, which will slow the development of new inventions and industries that can further expand the world economy and continue to raise the prosperity and quality of life for everyone. Unless current trends are reversed, there is a risk of stifling innovation, with adverse consequences for both developed and still developing countries. The American response to date of hectoring governments and prosecuting individuals has been utterly inadequate to deal with the problem.

China has been the principal focus of U.S. intellectual property rights (IPR) policy for many years. As its economy developed, China built a sophisticated body of law that includes IPR protection. It has a vibrant, although flawed, patent system. For a variety of historical reasons, however, as well as because of economic and commercial practices and official policies aimed to favor Chinese entities and spur economic growth and technological advancement, China is the world’s largest source of IP theft. The evidence presented here is a compilation of the best governmental and private studies undertaken to date, interviews, individual cases, assessments of the impact of IP theft on the American economy, and examinations of PRC policies. There is now enough information, in our view, to warrant urgent consideration of the findings and recommendations that follow. The IP Commission has met numerous times over the course of an eleven-month period; heard from experts and specialists on international law, the American legal system, cybersecurity, and the economy, as well as from industry representatives and many others; and conducted research on a range of topics. The Commission has also reviewed the current actions being taken by the U.S. government and international organizations like the World Trade Organization (WTO) and the recommendations of official and private studies of the problem. Both current and proposed actions generally emphasize more intensive government-to-government communication requesting foreign governments to rein in their companies and other actors. The Commission judges that the scope of the problem requires stronger action, involving swifter and more stringent penalties for IP theft. The Commission believes that over the long term, as their companies mature and have trade secrets to protect, China and other leading infringers will develop adequate legal regimes to protect the intellectual property of international companies as well as domestic companies. The United States cannot afford to wait for that process, however, and needs to take action in the near term to protect its own economic interests.

The Commissioners unanimously advocate the recommendations contained within this report.

The Key Findings are

The Impact of International IP Theft on the American Economy

Hundreds of billions of dollars per year. The annual losses are likely to be comparable to the current annual level of U.S. exports to Asia—over $300 billion. The exact figure is unknowable, but private and governmental studies tend to understate the impacts due to inadequacies in data or scope. The members of the Commission agree with the assessment by the Commander of the United States Cyber Command and Director of the National Security Agency, General Keith Alexander, that the ongoing theft of IP is “the greatest transfer of wealth in history.” Millions of jobs. If IP were to receive the same protection overseas that it does here, the American economy would add millions of jobs. A drag on U.S. GDP growth. Better protection of IP would encourage significantly more R&D investment and economic growth. Innovation. The incentive to innovate drives productivity growth and the advancements that improve the quality of life. The threat of IP theft diminishes that incentive.

Long Supply Chains Pose a Major Challenge

Stolen IP represents a subsidy to foreign suppliers that do not have to bear the costs of developing or licensing it. In China, where many overseas supply chains extend, even ethical multinational companies frequently procure counterfeit items or items whose manufacture benefits from stolen IP, including proprietary business processes, counterfeited machine tools, pirated software, etc.

International IP Theft Is Not Just a Problem in China

Russia, India, and other countries constitute important actors in a worldwide challenge. Many issues are the same: poor legal environments for IPR, protectionist industrial policies, and a sense that IP theft is justified by a playing field that benefits developed countries.

The Role of China

• Between 50% and 80% of the problem. The major studies range in their estimates of China’s share of international IP theft; many are roughly 70%, but in specific industries we see a broader range.

• The evidence. Evidence comes from disparate sources: the portion of court cases in which China is the destination for stolen IP, reports by the U.S. Trade Representative, studies from specialized firms and industry groups, and studies sponsored by the U.S. government.

• Why does China stand out? A core component of China’s successful growth strategy is acquiring science and technology. It does this in part by legal means—imports, foreign domestic investment, licensing, and joint ventures—but also by means that are illegal. National industrial policy goals in China encourage IP theft, and an extraordinary number of Chinese in business and government entities are engaged in this practice. There are also weaknesses and biases in the legal and patent systems that lessen the protection of foreign IP. In addition, other policies weaken IPR, from mandating technology standards that favor domestic suppliers to leveraging access to the Chinese market for foreign companies’ technologies.

Existing Remedies Are Not Keeping Up

• Short product life cycles. Even in the best judicial systems, the slow pace of legal remedies for IP infringement does not meet the needs of companies whose products have rapid product life and profit cycles. 

• Inadequate institutional capacity. Particularly in developing countries there is inadequate institutional capacity to handle IP-infringement cases—for example, a shortage of trained judges. China’s approach to IPR is evolving too slowly. The improvements over the years have not produced meaningful protection for American IP, nor is there evidence that substantial improvement is imminent. Indeed, cyberattacks are increasing. 

• Limitations in trade agreements. Although there appears to be a great deal of activity on the part of the United States through the WTO, there are also significant problems in the process that have made it impossible to obtain effective resolutions. Bilateral and regional free trade agreements are not a panacea either. Steps undertaken by Congress and the administration are inadequate. Actions have been taken recently both to elevate the problem as a policy priority and to tighten U.S. economic espionage law. These are positive steps. A bill in Congress that would allow greater information-sharing between government and private business needs to be enacted and amended if needed. All of these efforts, however, will not change the underlying incentive structure for IP thieves and will therefore have limited effect.

The Commission responds that

 Strategy With U.S. companies suffering losses and American workers losing jobs, and our innovative economy and security thus at stake, more effective measures are required. The problem is compounded by newer methods of stealing IP, including cyber methods. Of the cyber threat, President Obama has said that it is “one of the most serious economic and national security challenges we face.” Network attacks, together with other forms of IP attacks, are doing great damage to the United States, and constitute an issue of the first order in U.S.-China relations. The Commission regards changing the incentive structure for IP thieves to be a paramount goal in reducing the scale and scope of IP theft. Simply put, the conditions that encourage foreign companies to steal American intellectual property must be changed in large part by making theft unprofitable. The starting point is the recognition that access to the American market is the single most important goal of foreign firms seeking to be international corporate leaders. Companies that seek access by using stolen intellectual property have an unearned competitive advantage, and because the costs of stealing are negligible or nonexistent, they continue to operate with impunity. Cheating has become commonplace. The Commission regards changing the cost-benefit calculus for foreign entities that steal American intellectual property to be its principal policy focus. IP theft needs to have consequences, with costs sufficiently high that state and corporate behavior and attitudes that support such theft are fundamentally changed. Beyond changing behavior in the short term, the Commission regards strengthening the legal frameworks that govern the protection of IP to be a set of important medium-term recommendations. From that point, and over the longer term, the Commission judges that capacity-building in countries, especially China, that have poor IP-protection standards is of critical importance.

 The  recommends "short-term, medium-term, and long-term remedies".

Short-term measures incorporate the immediate steps that policymakers should take to stem the tide of IP theft and include the following:

• Designate the national security advisor as the principal policy coordinator for all actions on the protection of American IP. The theft of American IP poses enormous challenges to national security and the welfare of the nation. These challenges require the direct involvement of the president’s principal advisor on national security issues to ensure that they receive the proper priority and the full engagement of the U.S. government. 

• Provide statutory responsibility and authority to the secretary of commerce to serve as the principal official to manage all aspects of IP protection. The secretary of commerce has sufficient human, budgetary, and investigative resources to address the full range of IP protection issues. If given the statutory authority to protect American IP, we anticipate a robust set of responses. 

• Strengthen the International Trade Commission’s 337 process to sequester goods containing stolen IP. The current 337 process is not fast enough to prevent goods containing or benefitting from stolen IP from entering the United States. A speedier process, managed by a strong interagency group led by the secretary of commerce, can both prevent counterfeit goods from entering the United States and serve as a deterrent to future offenders. The speedier process would impound imports suspected of containing or benefitting from IP theft based on probable cause. A subsequent investigation would allow the importing company to prove that the goods did not contain or benefit from stolen IP. 

• Empower the secretary of the treasury, on the recommendation of the secretary of commerce, to deny the use of the American banking system to foreign companies that repeatedly use or benefit from the theft of American IP. Access to the American market is a principal interest of firms desiring to become global industrial leaders. Protecting American IP should be a precondition for operating in the American market. Failure to do so ought to result in sanctions on bank activities, essentially curtailing U.S. operations. 

• Increase Department of Justice and Federal Bureau of Investigation resources to investigate and prosecute cases of trade-secret theft, especially those enabled by cyber means. The increase in trade-secret theft, in many ways enabled by emerging cyber capabilities, requires a significant increase in investigative and prosecutorial resources. 

• Consider the degree of protection afforded to American companies’ IP a criterion for approving major foreign investments in the United States under the Committee on Foreign Investment in the U.S. (CFIUS) process. CFIUS assesses national security risk and national security implications of proposed transactions involving U.S. companies. Adding an additional evaluative criterion to the review process that assesses the manner in which a foreign company obtains IP would help improve IP-protection environments. 

• Enforce strict supply-chain accountability for the U.S. government. Establishing control and auditing measures that enable suppliers to the U.S. government to guarantee the strongest IP-protection standards should be the “new normal” that the U.S. government demands. 

• Require the Securities and Exchange Commission to judge whether companies’ use of stolen IP is a material condition that ought to be publicly reported. Corporate leaders will take seriously the protection of IP, including in their supply chains, if reporting IP theft in disclosure statements and reports to boards of directors and shareholders is mandatory. 

• Greatly expand the number of green cards available to foreign students who earn science, technology, engineering, and mathematics degrees in American universities and who have a job offer in their field upon graduation. In too many cases, American universities train the best minds of foreign countries, who then return home with a great deal of IP knowledge and use it to compete with American companies. Many of these graduates have job offers and would gladly stay in the United States if afforded the opportunity. Legislative and legal reforms represent actions that aim to have positive effects over the medium term.

To build a more sustainable legal framework to protect American IP, Congress and the administration should take the following actions:

• Amend the Economic Espionage Act (EEA) to provide a federal private right of action for tradesecret theft. If companies or individuals can sue for damages due to the theft of IP, especially trade secrets, this will both punish bad behavior and deter future theft. 

• Make the Court of Appeals for the Federal Circuit (CAFC) the appellate court for all actions under the EEA. The CAFC is the appellate court for all International Trade Commission cases and has accumulated the most expertise of any appellate court on IP issues. It is thus in the best position to serve as the appellate court for all matters under the EEA. 

• Instruct the Federal Trade Commission (FTC) to obtain meaningful sanctions against foreign companies using stolen IP. Having demonstrated that foreign companies have stolen IP, the FTC can take sanctions against those companies. 

• Strengthen American diplomatic priorities in the protection of American IP. American ambassadors ought to be assessed on protecting intellectual property, as they are now assessed on promoting trade and exports. Raising the rank of IP attachés in countries in which theft is the most serious enhances their ability to protect American IP.

Over the longer term, the Commission recommends the following capacity-building measures:

• Build institutions in priority countries that contribute toward a “rule of law” environment in ways that protect IP. Legal and judicial exchanges, as well as training programs sponsored by elements of the U.S. government—including the U.S. Patent and Trademark Office—will pay long-term dividends in the protection of IP. 

• Develop a program that encourages technological innovation to improve the ability to detect counterfeit goods. Prize competitions have proved to be both meaningful and cost-effective ways to rapidly develop and assess new technologies. New technologies, either to validate the integrity of goods or to detect fraud, would both deter bad behavior and serve as models for the creation of new IP. 

• Ensure that top U.S. officials from all agencies push to move China, in particular, beyond a policy of indigenous innovation toward becoming a self-innovating economy. China’s various industrial policies, including indigenous innovation, serve to dampen the country’s own technological advancements. Utility, or “petty,” patents are a particularly pernicious form of Chinese IP behavior and need to cease being abused. 

• Develop IP “centers of excellence” on a regional basis within China and other priority countries. This policy aims to show local and provincial leaders that protecting IP can enhance inward foreign investment; this policy both strengthens the protection of IP and benefits the promotion possibilities of officials whose economic goals are achieved by producing foreign investment. 

• Establish in the private, nonprofit sector an assessment or rating system of levels of IP legal protection, beginning in China but extending to other countries as well. One of the tools necessary to develop “centers of excellence” is a rating system that shows the best—and worst—geographical areas for the protection of IP.

The Commission recommends the following measures to address cybersecurity:

• Implement prudent vulnerability-mitigation measures. This recommendation provides a summary of the security activities that ought to be undertaken by companies. Activities such as network surveillance, sequestering of critical information, and the use of redundant firewalls are proven and effective vulnerability-mitigation measures. 

• Support American companies and technology that can both identify and recover IP stolen through cyber means. Without damaging the intruder’s own network, companies that experience cyber theft ought to be able to retrieve their electronic files or prevent the exploitation of their stolen information. 

• Reconcile necessary changes in the law with a changing technical environment. Both technology and law must be developed to implement a range of more aggressive measures that identify and penalize illegal intruders into proprietary networks, but do not cause damage to third parties. Only when the danger of hacking into a company’s network and exfiltrating trade secrets exceeds the rewards will such theft be reduced from a threat to a nuisance.

Sandwiches and Suppression Orders

From the Adelaide Advertiser's coverage earlier this month of the South Australian Attorney-General's report on suppression orders in that state -

the Supreme, District, Magistrates and Youth Courts imposed 155 suppression orders in 2012-13.

That represents a reduction from 161 in 2011-12, 173 in 2009-10 and 207 in 2008-09. ...

The Magistrates Court imposed the most suppressions (84) while the Youth Court handed down just one.

Suppression of court hearings is governed by Section 69A of the Evidence Act (1929).

Prior to 2007, courts could suppress evidence under broad grounds including the protection of victims from hardship and to prevent "prejudice to the proper administration of justice".

Opponents of the legislation claimed it was being misused by lawyers to stop media outlets from fairly and accurately reporting court events to the broader public.

In some years, in excess of 220 suppression orders were imposed on everything from the colour of the barrels used in the "bodies in the barrels" serial killings to the name of a defendant's dog.

In one case, defence counsel sought to suppress the flavour of a sandwich a woman had used to drug her partner before bashing him to death.

South Australia came under criticism, both internally and from interstate, for being "the secrecy state".

Although the number of orders has declined South Australia still isn't enthusiastic about administrative openness ... the miasmas of secrecy linger.

The A-G's report consists of four pages, including the cover and transmittal letter. It includes basic statistics (ie number by month per court) and the statement (reflecting the statute) that orders were made for the following reasons -

• to prevent prejudice to the proper administration of justice
• to prevent undue hardship to an alleged victim of crime; to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings;  or a child
• to prevent identification of an accused, victim or witness
• to prevent publication of various details concerning the accused, victim or witness.

No indication of how long the orders were in place (an area of contention in the past). No indication of demographics. All in all not very helpful for law reform.

Media

The New Zealand Government has announced its response to the NZ Law Commission’s The News Media Meets “New Media”: Rights, Responsibilities and Regulation in the Digital Age, ie the official law reform report regarding regulation of news media.

The announcement states that

 The report considered how unregulated news media could be regulated and/or if our current regulatory bodies should be extended to cover media such as blogs. 

“I thank the Law Commission for its thorough report proposing innovative solutions to the regulatory challenges presented by new media providers and new media platforms,” [Justice Minister] Collins says. 

“We expect that print and on-line media outlets will continue to strengthen their self-regulation while the Broadcasting Standards Authority will retain its responsibility for TV and radio under the Broadcasting Act.” 

Ms Collins says the Government has decided not to establish a single independent regulatory body to hear complaints across all news media formats at this time. 

Currently, there is one regulator for each media format, for example the Press Council for print media and the Broadcasting Standards Authority for television and radio. 

“Unlike recent reviews in the UK and Australia, the Law Commission’s report was not driven by a crisis of confidence in the mainstream media,” Ms Collins says. 

New Zealand exceptionalism is so very reassuring.

The Justice Minister comments

 “The media in New Zealand have already made good progress in dealing with these challenges, for instance through the setting up of the Online Media Standards Authority. There is no pressing need for statutory or institutional change.”

Never fear, apparently, with Broadcasting Minister Craig Foss stating that

the Law Commission proposal will be kept in mind as an option should reform be necessary in the future. 

“The Government is well aware of the importance of fostering a well-functioning and independent fourth estate,” says Mr Foss. 

“While we’re not taking action now, I’d like to send a clear message that the Government expects the news media industry to continue to develop solutions to the regulatory difficulties presented by media using multiple technology platforms.”