Firearms and privacy

From the Senate Legal and Constitutional Affairs References Committee report on Ability of Australian law enforcement authorities to eliminate gun-related violence in the community -

Security of data in relation to firearm owners 

Data from the AIC's National Firearm Theft Monitoring Program (NFTMP) showed that over the five years between 1 July 2004 and 30 June 2009, around three-quarters of firearm thefts were from private residential premises, with a mix of targeted and opportunistic incidents recorded. Given the high incidence of thefts from private residential premises, the scarcity of data about firearms was raised as a concern during the course of the inquiry. In particular, submitters and witnesses discussed the accessibility and unlawful use of firearm registries. 

Firearm registries 

The Tasmanian Farmers and Graziers Association questioned the security of the various state and territory firearm registries:

Anecdotally, there is significant evidence to suggest that many of the firearm thefts in Tasmania are targeted—that is, they are targeted for the firearms, because often nothing else is taken. So you have to ask how this intelligence is being gathered by criminals in the first place. It is not difficult to see, when individuals are dealing with their firearms—whether it be submitting a form and requesting a new firearm or even when their firearm licence falls due or when they purchase ammunition—they sign registers which other members of the public have access to. These registers have their names and their addresses. The full details are on there for any subsequent person who signs that register, if they are awake, to take note of who the individual is, where they live and often, depending on what sort of register they are signing, what type of firearms they have. We could simply put a stop to many of these thefts by tightening up the security around these sorts of issues.

The Shooters Union NSW alleged that the NSW firearms database has been accessed unlawfully at times. Detective Chief Superintendent Finch, from the NSW Police, rejected this assertion:

That area has been traversed many times. In fact, the Firearms Registry has conducted a number of investigations in relation to that. There is simply no evidence that there has been any breach of security or improper release of information in terms of their records and, certainly, I am unaware of any evidence to suggest that operational police have done similar. In fact, regarding the article that commenced that, I spoke to the journalist who wrote it. It was an adlibbed story and his editor seemed to think it was a good idea to run with it—and that was the information I had at the time.

The NSW Police gave evidence that while targeted theft was more common in rural communities it was not necessarily linked to organised crime:

Our analysis and our practice has shown recently, particularly, that, when thefts occur, very often the thefts are undertaken by people from within the same communities. We certainly look at and analyse whether there is any more sinister intent—that is, whether groups such as outlaw motor cycles groups have been involved in the thefts or whether they have commissioned those thefts. Again, whilst it would be naive to suggest that has never happened, at this stage there is no conclusive evidence to say that they are involved on any scale.

Shooting clubs and organisations 

Shooting clubs and organisations hold data on their members, including personal information and the types of firearms owned by a member. This data, if accessed by criminal elements, could place members at risk of firearm theft. 

Shooting Australia emphasised the care taken by firearm bodies to protect their information:

Shooting Australia at our level, as I mentioned, has five member bodies. We do not have the details of the 38-odd thousand individuals. The member bodies have that information in different ways. It comes to them from state and club levels. There is a complete understanding by all involved of the need for security of that information and to guard it closely. At the national and state levels, I would suggest that those organisations do not have the details of the numbers and types of firearms but rather have simply who the members are. The details are with the state registries, as Mr Bannister mentioned, and potentially with the clubs that have performed the role of endorsing the particular members' applications et cetera.

The Shooters Union NSW described the security it uses to protect members' personal information, but simultaneously highlighted weaknesses in its security approach by virtue of the dedicated computer being connected to the internet and membership information being emailed to the firearms registry:

CHAIR: Coming back to security of information, quite a few of the submissions that we received talked about the security of data relating to gun ownership, and I imagine that that is a concern that you all would have. One of the submissions referred to a significant breach in South Australia, where the data about who were members of a gun club was released publicly. This person likened it to a shopping list for criminals who wanted to go out and find where they could get some guns and where there were guns in the community. Mr Whelan, what does your club do to guarantee the security of your membership? 

Mr Whelan: Even I do not have access to the membership list. Our secretary, a guy called Daniel Gregg, has it on a dedicated computer that is not linked or connected to anything except when he has to download that and report to the firearms registry. That is done on a spreadsheet annually toreview who has kept their membership valid and who has kept their required number of shoots. 

CHAIR: So that computer is not connected to the internet at all? 

Mr Whelan: No, it is only used to email data to the firearms registry.

Mr Trevor Kenny outlined a specific example in which the South Australian Revolver and Pistol Association Inc. (an "umbrella organisation" with no individual members) came into possession of information contained in a database of pistol shooters comprising the personal information of individuals and the types of firearms in their possession. Mr Kenny explained:

The South Australian Revolver and Pistol Association Inc. secretary...has been the custodian of the database of pistol shooters for many years. Contained in that database is, not only the personal information of the individuals, but also the types of firearms that are in their possession. S.A.R.P.A. is the parent body of most Pistol Clubs here in South Australia and purports to be the body representing the individual clubs. It argues that club members are NOT members of S.A.R.P.A and one must ask, what they are doing with this information in the first place? Obviously the individual clubs and the Firearms Branch of the South Australian Police are appropriately in possession of such delicate information.

The Sporting Shooters' Association of Australia Inc. gave evidence that it would welcome legislation aimed at protecting the security of data:

Interestingly enough, we would actually probably enjoy some additional support in being able to protect our data. There was a case within our own organisation in Western Australia only a few short years ago where an individual took our state association to court to gain access to the membership list and won the case. We resisted it; we lost the case; we could not protect our own data legally.

The National Farmers' Federation questioned the need for further measures and instead suggested that existing privacy laws should be sufficient:

Much of the information that has been described as accessible is personal information, which is already covered by privacy legislation, and so it is relevant to consider how that law could be applied in this space, where it is not currently being used.

The report goes on to state -

The security of gun ownership data was explored in chapter 4. The committee acknowledges the need to guarantee the safety of information about gun ownership to prevent registered owners being targeted for theft. Evidence given during the course of the inquiry indicated that gun and shooting clubs are not currently required to follow any particular rules or standards in relation to the security of their membership records. The committee was alarmed that the main protection afforded gun ownership information by these clubs seemed to be their storage on a computer that is mostly disconnected from the internet. 

The vulnerability of gun ownership records held by gun clubs should be rectified. The committee therefore recommends that the Commonwealth government work with state and territory governments to establish national standards for the security of membership data held by gun clubs. 

The committee recommends that the Commonwealth government, together with state and territory governments, establish national standards for the security of membership data held by gun clubs. ...  

Registration and licensing of firearms 

The committee supports the current requirements for registering and licensing firearms and considers them necessary in preventing firearms from being diverted to the illicit market. However, as part of its inquiry, the committee received evidence that there are weaknesses in the current registration and licensing systems which impact on their effectiveness. The National Firearm Licensing and Registration System (NFLRS), which was implemented following the adoption of the NFA, and the National Police Reference System (NPRS) are the two main systems currently used by police to track firearms. In particular, the NFLRS 'captures a "point-in-time picture" of firearm information held by State and Territory police agencies' own firearm registries'. 

Submitters were generally of the view that the NFLRS has a number of flaws. CrimTrac acknowledged these and advised that the National Firearms Interface (NFI) has been developed to replace the NFLRS. 

The committee welcomes the development of the NFI and understands that it will provide a range of benefits to law enforcement agencies, including the ability to track a firearm over its lifespan. However, the committee is also concerned that the NFI will still rely on information provided by the states and territories. 

The committee refers to the recent Martin Place siege report which stated that 'the information in the new system will only be as good as the information already in the state databases' and included a recommendation that 'State and Territory police agencies, that have not already done so, should as a matter of urgency, audit their firearms data and work to upgrade the consistency and accuracy of their own holdings before transferring it to the NFI'. 

The committee concurs with the recommendation of the Martin Place siege report and supports the suggestion from the NSW Police Force for a national approach for the registration of firearms. It is the committee's view that there needs to be greater consistency in the data provided by state and territory police forces regarding the registration and licensing of firearms. The committee therefore recommends that all jurisdictions update their firearm data holdings and transfer these to the NFI. 

Recommendation 6  The committee recommends that all jurisdictions update their firearm data holdings and ensure the data is transferred to the National Firearms Interface.

Tax Privacy

The Canberra Times, in reporting on policies to shame offenders or merely inform public policy debate by publishing information about corporations that are allegedly gaming the tax system, states that

Tax Commissioner Chris Jordan says publishing taxpayers' personal details would be "unprecedented". 

Treasurer Joe Hockey says "confidentiality of taxpayer information has been a key feature of Australia's taxation system since the 1950s". 

Both are wrong. Both have been stonewalling requests from the Senate economics committee to see the names of companies the Tax Office believes transferred a combined $31.4 billion to the low tax jurisdiction of Singapore in the year to June 2012. But Fairfax Media can reveal that as recently as 1984 the Tax Office routinely published the names of taxpayers and companies it found to be engaged in breaches or evasion. 

"It used to be called 'the honours list' internally," said former Tax Commissioner Trevor Boucher. He stopped the practice in 1985 because of the workload and because of concerns that it exposed taxpayers to "double jeopardy," being both fined as a punishment and then having their punished in the annual report. 

The last list published in 1984 details the name, suburb and occupation of each Australian found to have underpaid a significant amount of tax as well as the amount underpaid and the penalty applied. 

In that year trade mark assistant Jeannie Abbott of Greenwich headed up the alphabetical list of Sydney underpayers and process worker Neim Aki of Yarraville headed up the Melbourne list. 

The names were published only where the penalty tax due exceeded $1750 and after all appeal rights had been exhausted. A separate list in the annual report detailed the taxpayers against whom the Tax Office had secured judgements in the courts. 

Neither list included taxpayers merely suspected of underpaying.

Registers

Two perspectives on identity and registration.

The SMH reports that the national government's chief Indigenous adviser, Warren Mundine, wants

a national database of Aboriginal people to resolve "once and for all" the controversial issue of proving Aboriginality. 

The article indicates that the NSW Aboriginal Housing Office

formerly required people to prove their Aboriginality in one of three ways: by being a member of a local Aboriginal land council or registered Aboriginal organisation; obtaining a confirmation letter from one of those organisations; or, if those avenues were not possible, by providing a statutory declaration. The office will no longer accept statutory declarations. 

A Department of Family and Community Services spokeswoman said the policy change was discussed with housing and Indigenous groups and was "consistent with other practices and organisations". However according to the NSW Health website, a statutory declaration and references from two Indigenous community representatives is accepted as proof of Aboriginality in job applications. ...

Mr Mundine said the debate showed the need for a national database of Aboriginal people "that gets away from all the politics". "At the moment there is a ridiculous situation where you do have fraud, you do have petty personal politics involved," he said.

The SBS reports that Mundine

has called for the establishment of a national database of Aboriginal people. Mr Mundine says such a database would help overcome allegations of corruption and fraud. 

"I can walk in and get a passport and have to prove who I am. I'm a citizen of Australia to get that passport," he said. "Why shouldn't we be up for the same scrutiny?" 

He said it would enable Indigenous Australians to prove their identity, which is required to access certain services or perform certain duties. … "And of course on a more practical level, if you're accessing housing, if you're accessing government procurement contracts, or being able to vote at land council meetings, and so on, then it's quite clear you're in or you're out." 

He says a well-researched national database would also make it easier for Indigenous people to find out which First Nations they belong to. ...   

But he says the process and the body established to oversee it must be independent, transparent and run by Indigenous people. 

"Just from the historical approach because our people have been so knocked around and by governments of all political persuasions, of all political levels, that we have a distaste for trusting those type of organisations."

Less contentiously, the South Australian Coroner in reporting on the death of Chloe Valentine has stated

There is no statutory registration system for social workers. In my opinion it is appropriate that there should be. In his submissions the Commissioner for Victims’ Rights suggested that registration could be achieved through the National Registration and Accreditation Scheme which resulted from the Council of Australian Governments agreement in 2008. That may well be an appropriate mechanism for achieving a system of registration for social workers. I intend simply to recommend that the Minister for Child Protection Reform introduce a measure to provide for registration of social workers. The solution suggested by the Commissioner may commend itself to the Minister as a suitable way to implement that recommendation, but that is a matter for the Minister. Furthermore, I intend to recommend that there be a mandatory restriction on student social workers and qualified social workers with less than 12 months experience having client contact without direct supervision by a senior social worker.

The latter comment reflects comments by Emeritus Professor Freda Briggs on the content of the social work undergraduate degree course -

Professor Briggs expressed concern in her evidence that social work students on completion of their degree course had obtained little insight about children and were unable to tell the difference between normal child development and abnormal child development and that this would lead to mistakes being made in the child protection area. She also commented that social workers must be trained to relate well to children because, if they could not, they would choose instead to relate to the adults and listen to them, thereby missing important information. She said that there was no course content in the social work course relating to child protection. She has campaigned over a long period to have changes made to the content of the social work course. However, she said that her discussions have not been fruitful because the course content is accredited by the Australian Association of Social Workers. Professor Briggs remarked that social workers are responsible for assessing the safety of children and yet their training in child development is not as good as that of a kindergarten teacher. Yet kindergarten teachers are not required to make the serious decisions that social workers make. 

Professor Briggs was concerned that inadequate training leads to social workers relying on their emotions rather than their professional knowledge . She was concerned that the Australian Association of Social Workers is making a submission to the current Royal Commission into Child Protection Systems that the employer, namely Families SA, should be responsible for training students to work in child protection. Professor Briggs regards that position as unrealistic. 

Professor Briggs was asked about cases of neglect of children and commented that experienced social workers become accustomed to seeing houses in which neglect takes place. She said that they can become acclimatised and: "…what they think is okay, a lot of other people wouldn't. For example, teachers despair that they have a neglected child. If the parents are drug addicts, it can be dismissed as a lifestyle choice when the child is being neglected as a result of the drugs." 

Professor Briggs regarded it as completely irresponsible to send a student social worker to work with a potential child neglect case. She said that student social workers do field work to learn, not to lead. She said they have to be supervised.

Professions

'A Taxonomy of Lawyer Regulation: How Contrasting Theories of Regulation Explain the Divergent Regulatory Regimes in Australia, England/Wales, and North America' by Noel Semple, Russell G. Pearce, Renee Newman Knake in (2014) 16(2) Legal Ethics 258 asks

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions. Although most jurisdictions employ a combination of approaches, as well as some hybrid methods, the Essay identifies the two dominant perspectives: (1) the professionalist-independent framework, predominate in anglophone North America, and (2) the consumerist-competitive framework found in the common law jurisdictions of Northern Europe and Australia. 

This theoretical divide, in turn, helps explain why the United States and Canada have largely adhered to a body of self-regulation focused upon aspirations of professionalism and professional independence. Australia and England/Wales, by contrast, have embarked upon market-oriented reform that purports to promote consumer protection and consumer interests. In describing this taxonomy, we recognise jurisdictions sometimes employ hybrid regulatory strategies that combine elements of the professionalist-independent and consumerist-competitive frameworks, such as gatekeeper rules promulgated by the State (as opposed to gatekeeper regulations promulgated by judges or the legal profession). We also acknowledge that regulatory approaches are dynamic and that regulators may very well shift perspectives over time. Nevertheless, organising the claims of commentators and regulators into categories will help to promote analysis and comparison of legal services regulations, as well as to improve the quality of decision-making by those who craft and enforce the rules. We identify, for example, the crucial distinction between how these two approaches construct an understanding of legal services clients. Consumerist-competitive systems identify clients as consumers (who are similar to consumers of other goods and services) and apply this perspective to the particular context of purchasing legal services. In contrast, professionalist-independent systems understand the experience of a legal services client as fundamentally different from that of other consumers and, accordingly, require a wholly distinct regulatory approach. 

The Essay proceeds as follows. Part I situates our inquiry in the context of a larger, more fundamental question: why regulate legal services in the first instance? We identify and describe various theories that explain the introduction of regulation, contrasting in particular the private interest (capture) and public interest (market failure) approaches. Part II then turns to an exploration of the regulators' normative theories on how legal services ought to be regulated. Here we describe the taxonomy of consumerist-competitive and professionalist-independent approaches, including how consumerist-competitive approaches tend to favour government regulation, market-oriented solutions, firm-level accountability, and principles-based regulatory strategies and why professionalist-independent approaches tend to favour self-regulation, individual lawyer accountability, and command-and-control regulatory strategies. We also describe how some jurisdictions employ both hybrid and multiple strategies, and identify unintended consequences that have confounded the intentions of legal services regulators.

Smart Meters

From yesterday's Commonwealth Energy White Paper -

Price signals and advanced metering

Price signals need to be complemented by the consumer’s ability to understand and respond to those signals. A more cost-reflective tariff arrangement is one where prices are based on the cost to supply electricity at the time it is used, which requires advanced household electricity meters (smart meters or, at a minimum, interval meters that track usage over time). Effective and timely consumer access to their own data from these meters (either directly or through an authorised agent) is critical to enable a more sophisticated response to cost-reflective tariffs and help consumers select the best services for their needs. Access to a consumer’s consumption profile must be readily available (for example, online) and accessible, if authorised by the consumer, to service providers and third parties to support consumer decision-making.

Some stakeholders support a mandated rollout of advanced meters. Advanced meters allow consumers to gain the full benefits of demand-side measures, such as cost‑reflective tariffs and energy efficiency technologies, to manage their energy use. Other stakeholders assert that metering should be at a customer’s choice because some  customers will be unable to change their use patterns in response to information on their energy use from a meter and associated price signals from cost-reflective pricing. The Australian Government supports competitive and voluntary metering services, where the benefits exceed the costs, because they will drive the efficient rollout of advanced meters, based on the value they provide to consumers and market participants.

Case study: Smart meters

Smart meters offer more functions than are possible with traditional meters. A smart meter measures electricity use continuously and records consumption every half hour while a traditional meter only measures total energy consumption. A smart meter provides secure communication capabilities, can work with different household technologies such as online portals and in-home displays, and is required to support technologies that report information on particular appliances. Smart meters support the development of innovative products and services, such as load management, which can help consumers manage their bills. This is different to a traditional meter, which only measures the total consumption between any two points in time. Smart meters come in different types and models, feature digital displays in place of a dial, and are similar in size to a traditional meter.

The Australian Government supports a market-driven approach to demand response arrangements for large energy users that gives them options to effectively respond to cost-reflective price signals and manage their costs. The Government also supports greater competition and choice in how energy users can respond to high wholesale price signals.

Under a demand response mechanism, consumers participating in the wholesale market would be able to make the decision to continue consumption or reduce their consumption by a certain amount in response to high spot prices. They would be paid according to the amount of ‘demand response’ delivered to the market, which is calculated as the difference between their estimated ‘baseline consumption’ and their actual metered consumption for the demand response interval. While it would mainly assist large electricity users initially, in the future it could be adapted to demand responses from residential consumers who have the appropriate metering technology in place.

The Paper goes on to state (at p32) that -

Improved energy productivity will reduce household and business energy costs and encourage economic growth. Energy productivity aims to lower the ratio of energy costs to the value of output received from the use of that energy. Energy productivity can be improved through energy market reforms such as increased competition and cost-reflective pricing that are aimed at lowering costs as well as energy efficiency measures.

The productive use of energy can lower energy costs by improving both the output and benefit received per unit of energy consumed. The more productive use of energy can delay the need for new energy supply infrastructure, which in turn relieves the need for price increases to recover that investment.

Increasing Australia’s energy productivity relies on the energy market reforms outlined in Chapter 1, particularly those that increase choice in energy services. Increased competition and flexible tariff structures provide this choice. Choice needs to be complemented by equipping consumers with appropriate information and decision‑making tools to select the services that benefit them (for example, ensuring they select the best tariff to save them money, rather than one that might increase their bills). There are significant barriers to the timely access to and sharing of consumers’ own data, particularly in developing new systems to support smart meters. There is a role for Government to ensure energy consumers have access to the information and tools they need to make informed choices. Other barriers, such as split incentives (for example, in cases where building owners may be less motivated to make improvements than their tenants who pay for the energy consumed) will also need to be addressed.

Mercy

'Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice' by James Q. Whitman in Texas Law Review (Forthcoming) argues

 American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. 

The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.

Patriarchy

'Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative' by Elizabeth Katz in (2015) 21(2) William & Mary Journal of Women and the Law argues 

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women. 

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.