Regulation and Food Pyramids

'Corporate Practices and the Implementation of Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children' (Sydney Law School Research Paper No. 15/41) by Belinda Reeve comments

The success of self-regulation depends upon whether companies internalise the social norms contained in voluntary codes. Accordingly, this chapter describes how and why food and alcohol companies comply with voluntary advertising initiatives (to the extent that they do). It draws upon interviews conducted with representatives of signatories to the RCMI, QSRI and ABAC, who have been given pseudonyms to protect their anonymity. The chapter also analyses selected food and alcohol company corporate social responsibility documents, as well as findings from the independent review of food industry self-regulation, published in 2012. I describe how transnational food and alcohol companies have attempted to meet public demands for more responsible marketing practices through their corporate social responsibility (CSR) practices. Then I describe the reasons that Australian food and alcohol companies give for adopting advertising self-regulation and how they integrated code requirements into their marketing activities. I present the paradox that some companies are adhering tightly to voluntary initiatives, yet self-regulation has had little impact on children’s overall exposure to food and alcohol advertising. One explanation for the codes’ lack of impact lies in their weak substantive standards. While this is not fatal to the success of self-regulation, I conclude that food companies have few incentives to adopt the more demanding restrictions that could significantly improve the food marketing environment. 

Reeve's 'The Business of Public Health? Health Sector Participation in Food Industry Self-Regulation - The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children' (Sydney Law School Research Paper No. 15/42), another part of her PhD dissertation, comments on

 the possibility of enhancing stakeholder participation in food industry self-regulation as a way of strengthening the public’s interest in the program. I use the alcohol industry’s ABAC Scheme as an example of what a more collaborative approach might look like in practice, as it includes both public health and government representation in its governance processes. The chapter draws upon data from interviews with representatives of nine public health advocacy organisations and research institutes and two interviews with academic researchers. I also present findings from interviews with two representatives of alcohol trade associations, one member of the ABAC Management Committee, two members of the ABAC Adjudication Panel and a representative of the Advertising Standards Bureau. The chapter begins by discussing the increasing use of collaborative initiatives in public health. Next I explore the extent to which public health advocates influence food and alcohol industry self-regulation, both indirectly and by participating in self-regulatory processes. Then I report on whether public health interviewees thought it would be appropriate for public health stakeholders to join non-statutory, quasi-regulatory processes governing food advertising, similar to the ABAC Scheme. I conclude by arguing against external stakeholder participation in industry-based schemes, at least in the absence of government intervention and oversight, because of the significant risk that public health interests will be subverted by those of industry.

Citizenship

The Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by the Parliamentary Joint Committee on Intelligence and Security features the following recommendations

Conduct-based provisions – proposed sections 33AA and 35

R 1 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to limit the operation of proposed section 33AA to individuals who have: engaged in relevant conduct offshore; or engaged in relevant conduct onshore and left Australia before being charged and brought to trial in respect of that conduct.

R 2 The Committee recommends that changes be made to clarify that the conduct leading to loss of citizenship listed in proposed section 33AA of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is intended to be considered in light of the meaning of the equivalent provisions in the Criminal Code Act 1995, and is not intended to be restricted to the physical elements. The Committee recommends that, if possible, these amendments be made in the Bill, with additional amendments to the Explanatory Memorandum where necessary.

R 3 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to include explicit criteria that the Minister must be satisfied of before declaring a terrorist organisation for the purpose of proposed section 35. The criteria should make clear the connection between proposed section 35 and the purpose of the Bill.

R 4 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to make the Minister’s declaration of a ‘declared terrorist organisation’ for the purpose of proposed section 35 a disallowable instrument. Further, the Committee recommends that the Bill be amended to enable the Parliamentary Joint Committee of Intelligence and Security to conduct a review of each declaration and report to the Parliament within the 15 sitting day disallowance period.

R 5 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and the Explanatory Memorandum be amended to clarify the intended scope of the term ‘in the service of’ a declared terrorist organisation. In particular, the Bill should be amended to make explicit that the provision of neutral and independent humanitarian assistance, and acts done unintentionally or under duress, are not considered to be ‘in the service of’ a declared terrorist organisation for the purposes of proposed section 35.

R 6 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and the Explanatory Memorandum be amended to provide that staff members or agents of Australian law enforcement or intelligence agencies are exempted from sections 33AA and 35 of the Bill when carrying out actions as part of the proper and legitimate performance of their duties.

Conviction-based provisions – proposed section 35A

R 7 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to give the Minister discretion to revoke a person’s citizenship following conviction for a relevant offence with a sentence applied of at least six years imprisonment, or multiple sentences totalling at least six years’ imprisonment. In exercising this discretion, the Minister should be satisfied that:  the person’s conviction demonstrates that they have repudiated their allegiance to Australia, and it is not in the public interest for the person to remain an Australian citizen, taking into account the following factors:

• the seriousness of the conduct that was the basis of the conviction and the severity of the sentence/s, 

• the degree of threat to the Australian community, 

• the age of the person and, for a person under 18, the best interests of the child as a primary consideration, 

• whether the affected person would be able to access citizenship rights in their other country of citizenship or nationality, and the extent of their connection to that country, 

• Australia international obligations and relations, and 

• any other factors in the public interest.

The rules of natural justice should apply to the Minister’s discretion under section 35A.

R 8 The Committee recommends that the list of relevant offences in proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to remove reference to section 29 of the Crimes Act 1914.

R 9 The Committee recommends that the list of relevant offences in proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to exclude offences that carry a maximum penalty of less than 10 years’ imprisonment and certain Crimes Act offences that have never been used. The Committee notes that the following offences would be removed:

• s 80.2, Criminal Code Act 1995, Urging violence against the Constitution, the Government, a lawful authority of the Government, an election, or a referendum, 

• s 80.2A(1) Criminal Code Act 1995, Urging violence against groups, 

• s 80.2B(1) Criminal Code Act 1995, Urging violence against members of groups, 

• s 80.2C, Criminal Code Act 1995, Advocating terrorism, 

• s 25 Crimes Act 1914, Inciting mutiny against the Queen’s Forces, 

• s 26 Crimes Act 1914, Assisting prisoners of war to escape, and 

• s 27(1) Crimes Act 1914, Unlawful drilling.

R 10 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be applied retrospectively to convictions for relevant offences where sentences of ten years or more have been handed down by a court. The Ministerial discretion to revoke citizenship must not apply to convictions that have been handed down more than ten years before the Bill receives Royal Assent.

Administrative application of the Bill

R 11 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended such that section 39 of the Australian Security Intelligence Organisation Act 1979 is not exempted, and consequently a security assessment would be required before the Minister can take prescribed administrative action.

R 12 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to provide that, if citizenship is lost (under proposed sections 33AA or 35) or revoked (under proposed section 35A), then the Minister must provide, or make reasonable attempts to provide, the affected person with written notice that citizenship has been lost or revoked. Such notice should be given as soon as possible, except in cases where notification would compromise ongoing operations or otherwise compromise national security.  If the Minister has determined not to notify the affected person, this decision should be reviewed within six months and every six months thereafter.

R 13 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to provide that, where the Minister issues a notice to the affected person advising that their citizenship has been lost or revoked, the notice must include:  the reasons for the loss of citizenship, and an explanation of the person’s review rights.

R 14 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to include the rights of review available to a person who has lost their citizenship pursuant to proposed sections 33AA, 35 or 35A.

R 15 The Committee recommends that proposed sections 33AA(7) and 35(6) of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Minister,  to give consideration to exercising the discretion to exempt a person from the effects of the relevant provisions upon signing the relevant notice, and  when considering whether to exercise the discretion to exempt, to take into account the following factors:

• the severity of the conduct that was the basis for the notice to be issued, 

• the degree of the threat posed by the person to the Australian community, 

• the age of the person, and for persons under 18 years of age, the best interests of the child as a primary consideration, 

• whether a prosecution is underway, or whether the person is likely to face prosecution for the relevant conduct, 

• whether the affected person would be able to access the citizenship rights in their other country of citizenship or nationality, and the extent of their connection to that country, 

• Australia’s international obligations and relations, and 

• any other factors in the public interest.

R 16 The Committee recommends that proposed sections 33AA and 35 of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that citizenship is taken never to have been lost if the facts said to ground a finding of fact concerning loss of citizenship are subsequently found to have been incorrect.

R 17 The Committee recommends that proposed section 35A of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to give the Minister power to annul a revocation decision if the relevant conviction is later overturned on appeal or quashed, such that the person’s citizenship is taken never to have been lost.

R 18 The Committee recommends that the Explanatory Memorandum to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that: the giving of notice under proposed sections 33AA and 35 is intended to constitute official recognition that a person’s citizenship has ceased by operation of one of the provisions, and any consequential action by Government agencies will only take place after the notice has been issued pursuant to the Bill’s provisions.

R 19 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to clarify that if the Minister exempts a person from the effect of proposed sections 33AA or 35, the person is taken never to have lost their citizenship.

Children

R 20 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to limit the extent of its application to children. The amendments should provide:  that no part of the Bill applies to conduct by a child aged less than 10 years, and  that proposed sections 33AA and 35 do not apply to conduct by a child aged under 14 years. The amendments should make the Bill’s application to children explicit on the face of the legislation. The Committee notes that in relation to proposed section 35A, section 7.2 of the Criminal Code Act 1995 or section 4N of the Crimes Act 1914 will apply to a child aged 10 to 14 years.

R 21 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended so that section 36 of the Australian Citizenship Act 2007 (which enables the Minister to revoke a child’s citizenship following revocation of a parent’s citizenship) does not apply to proposed sections 33AA, 35 and 35A.

Concluding comments

R 22 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Government to publicly report, every six months, the number of times a notice for loss or revocation of citizenship has been issued under each of the grounds contained in Bill, and provide a brief statement of reasons.

R 23 The Committee recommends that Intelligence Services Act 2001 (IS Act) be amended to extend the functions of the Parliamentary Joint Committee on Intelligence and Security to include monitoring and reviewing the performance by the Department of Immigration and Border Protection of its functions under the provisions of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The extended functions should be consistent with the Committee’s current remit under the IS Act. The IS Act should also be amended to enable relevant agency heads to brief the Committee for the purpose of this new function.

R 24 The Committee recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be amended to require the Minister to advise the Parliamentary Joint Committee on Intelligence and Security upon issuing a notice for the loss of citizenship under the Bill. A subsequent briefing should be offered to the Committee within 20 sitting days of the initial notice being issued. The advice given to the Committee should detail whether notice has been provided to the person, the conduct that engaged the Bill’s provisions and whether an exemption has been given by the Minister.

R 25 The Committee recommends that the Independent National Security Legislation Monitor Act 2010 be amended to require the Independent National Security Legislation Monitor to finalise a review of the revocation of citizenship provisions in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by 1 December 2018.

R 26 The Committee recommends that the Intelligence Services Act 2001 be amended to require the Parliamentary Joint Committee on Intelligence and Security to complete a review of the revocation of citizenship provisions in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by 1 December 2019.

R 27 The Committee recommends that, following implementation of the recommendations in this report, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be passed.

Law Journals

'In Praise of Law Reviews (And Jargon-Filled, Academic Writing)' by Cass Sunstein in Michigan Law Review (forthcoming) comments

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Affordances and Sultans

'Can Americans Resist Surveillance?' by Ryan Calo in University of Chicago Law Review (Forthcoming) analyses

the ability of everyday Americans to resist and alter the conditions of government surveillance. Americans appear to have several avenues of resistance or reform. We can vote for privacy-friendly politicians, challenge surveillance in court, adopt encryption or other technology, and put market pressure on companies not to cooperate with law enforcement. 

In practice, however, many of these avenues turn out to be limited. Reform-minded officials lack the capacity for real oversight. Litigants lack standing to invoke the Constitution in court. Encryption is not usable and can turn the citizen into a target. Citizens can extract promises from companies to push back against government surveillance on their behalf but have no recourse if these promises are not enforced. 

By way of method, this essay adopts James Gibson's influential theory of affordances. Originating in psychology, and famous everywhere but law, affordance theory has evolved into a general method of inquiry with its own useful vocabulary and commitments. This essay hopes to leverage these concepts to lend structure to an otherwise haphazard inquiry into the capability of citizens to perceive and affect surveillance. The essay meanwhile contributes to affordance theory by insisting that law itself represents an important affordance.

'Online Price Discrimination and Data Protection Law' (Amsterdam Law School Research Paper No. 2015-32) by Frederik J. Zuiderveen Borgesius comments

Online shops can offer each website customer a different price – a practice called first degree price discrimination, or personalised pricing. An online shop can recognise a customer, for instance through a cookie, and categorise the customer as a rich or a poor person. The shop could, for instance, charge rich people higher prices. From an economic perspective, there are good arguments in favour of price discrimination. But many regard price discrimination as unfair or manipulative. This paper examines whether European data protection law applies to personalised pricing. Data protection law applies if personal data are processed. This paper argues that personalised pricing generally entails the processing of personal data. Therefore, data protection law generally applies to personalised pricing. That conclusion has several implications. For instance, data protection law requires a company to inform people about the purpose of processing their personal data. A company must inform customers if it personalises prices.

'Modern fiduciary liability: the sick man of equity?' by JD Heydon in (2014) 20(10) Trusts & Trustees 1006–1022 comments 

Some think that fiduciary liability has shrunk, is shrinking and should be shrunk further. In particular, it has been said that traditional equitable duties of skill and care are not fiduciary, and, indeed, are not even equitable. It has also been said that no positive duty can be fiduciary. The article contends that these trends conflict with established authority, are unsound in principle, and have undesirable effects in practice. 

Czar Nicholas I of Russia is a potentate on whom history has not looked kindly. Almost no-one has ever stood to the right of him, and he has correspondingly few supporters. Every time he drifted into the pages of Tolstoy, the author let fly. Things have not improved since. Now his reputation is at its lowest. For President Putin has selected a portrait of his predecessor for visitors to gaze at as they wait in an antechamber before an audience. But he did utter one memorable phrase that provides the theme for this lecture. 

In 1853 Czar Nicholas I had a celebrated conversation with Sir Hamilton Seymour, the British Ambassador to St Petersburg. He broached the ugly subject of dismembering the Ottoman Empire. He remarked: The affairs of Turkey are in a very disorganised condition. We have on our hands a sick man – a man gravely ill. It would be a grave misfortune if one of these days he slips through our hands, especially before the necessary arrangements are made. 

These words were unfortunate, for the Czar soon after succumbed, in the prime of life, to an attack of influenza, shortly before his own Empire lost the Crimean War to a group of allies which included Turkey. 

It was true that by the time the Czar spoke, the rulers of the Ottoman Empire had had to endure, almost every decade, the loss of some additional province in Europe, Africa, or Asia or some humiliating peace treaty or both. The process lasted another seven decades. Every so often the Sublime Porte would default on its loans from foreigners and enter a condition of national bankruptcy, as the process of entering new loans simply to pay the interest on continuing loans reached the conclusion which our own adoption of that technique may soon result in. The world called Turkey “the sick man of Europe”. Innumerable cartoons portrayed the sultan as emaciated, enervated, addicted to the hookah and the harem, clad in primitive looking robe and fez, worn out by vice. These judgments were short sighted. A regime which for centuries had kept both the Balkans and the Middle East under some not wholly inhumane control deserves respect. For there were frightful consequences for the world when the Balkans and the Middle East fell out of control. The sultans and their advisers asked themselves: Are we on a downward path to inevitable extinction? Or do these setbacks strengthen the Empire by making it more manageable? 

In hindsight the second question can probably be answered “Yes”, even though the servants of the Empire were only getting it into a fit shape to fall into the hands of its gravedigger, Mustafa Kemal Ataturk. 

Similar questions arise about modern fiduciary liability. For this conference, centred on trusts, they are crucial, because the trustee is the archetypical fiduciary. Is fiduciary liability so sick that its life will soon move peacefully to its close? Or will it, by becoming smaller, also become leaner and more effective? Or will its greedy and expectant heirs—contract, tort, restitution, and, most insatiably greedy of all, statute—, together with the agitation of their academic paladins, cause it to be torn apart by judicial violence?

Refugees Inquiry

Taking responsibility: conditions and circumstances at Australia's Regional Processing Centre in Nauru, the final report by the Senate Select Committee on the Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, features the following recommendations

R1 ... that, consistent with the terms of the Memorandum of Understanding and related arrangements between the governments of Australia and Nauru, Australia ensure that support and assistance is provided to Nauru's police, judicial, prosecutorial and other law and justice entities to the extent necessary to ensure that Nauru's justice system meets the standards of accountability and probity required by Australian and international law.  

R2 ... that the Government of Australia, in consultation with the Government of Nauru, agree on and publicly commit to a model timeframe for refugee status determinations, and that Australia provide the Government of Nauru with the support necessary to achieve faster and more predictable processing of claims.  

The committee further recommends that asylum seekers be informed about the steps being taken to process their claims, be regularly updated on the progress of the claim, and that an explanation be provided to asylum seekers when model timeframes are not met.

R3 ... that the Immigration Ombudsman undertake independent external review of all complaints involving the conduct of Australian-funded staff or contractors at the Regional Processing Centre, and that the government ensure that the office of the Ombudsman is adequately resourced to do so.

The committee further recommends that the Ombudsman report to parliament on an annual basis on the number and nature of the complaints received and the outcomes of the Ombudsman's assessment of them.

R4 ... that briefing be required to be provided to all asylum seekers on their rights to lodge complaints with independent bodies such as the Immigration Ombudsman, the Australian Human Rights Commission and the International Committee of the Red Cross, both generally and in specific response to any complaints made.

R5 ... that Australia increase the transparency of conditions and operations at the Regional Processing Centre, including by ensuring the provision of reasonable access, in negotiation with the Government of Nauru as necessary, by the Australian Human Rights Commission and by the media.

R6 ... that the Department of Immigration and Border Protection require, in its contracts with service providers, that comprehensive drug and alcohol testing be conducted on staff employed at the Regional Processing Centre on Nauru, including daily random tests for both alcohol and drugs.

R7 ... that the Department of Immigration and Border Protection provide full and disaggregated accounts in its Portfolio Budget Statements, annual reports and other relevant reports to Parliament and to the Australian public, of the expenditure associated with the Regional Processing Centre on Nauru. This accounting should include detailing costs specific to the Nauru RPC, as well as related support and assistance provided by the Australian Government to the Republic of Nauru.

R8 ... that a full and disaggregated account of all works conducted in association with the Regional Processing Centre to date be reported by the Department of Immigration and Border Protection to the Senate.

The committee recommends that a clarification be provided to the Senate by the Department of Immigration and Border Protection as to why exemptions on the grounds of assistance to foreign governments apply to expenditure associated with the Regional Processing Centre on Nauru.  

The committee further recommends that all expenditure associated with the Regional Processing Centre on Nauru, including expenditure considered to be assistance to a foreign government, should be specifically reported to the Senate Legal and Constitutional Affairs Legislation Committee before each estimates round. 

R9 ... that the Australian Government continue to review the operation of the Regional Processing Centre with a view to expanding open centre arrangements. The committee recommends that the Regional Processing Centre on Nauru move toward becoming a more open, lower security living arrangement for all asylum seekers except where there is a compelling reason for an asylum seeker to be accommodated more securely.  

The committee recommends that any savings resulting from the implementation of an open centre model be redirected toward improving the living conditions of asylum seekers in the Regional Processing Centre, with a focus on humane living arrangements, services and amenities, including improved access to communications. The committee recommends that the Department of Immigration and Border Protection report publicly and to the Senate within 12 months on progress in this regard. 

R10 ... that the government commit to and publicly release a medium to long term plan for the completion of permanent infrastructure at the Regional Processing Centre on Nauru, including the construction of solid accommodation structures, and for tangible improvements to amenities for asylum seekers including lighting, water, toilets, air conditioning, cooking facilities and communications. 

The committee is convinced that welfare services must be provided by a dedicated welfare service provider with the required experience and accreditation to undertake such work. The committee recommends that a non-government organisation be contracted directly by the Department of Immigration and Border Protection to provide welfare services to all asylum seekers within the Regional Processing Centre on Nauru. 

R11 ... that the government extend its current policy commitment to remove children from immigration detention to the maximum extent possible, to include the removal of children from the Regional Processing Centre in Nauru. The government should develop a plan for the removal of children from the Nauru RPC as soon as possible, with their families where they have them, to appropriate arrangements in the community. 

R12 ... that the Australian Government commit to and publicly state a specific plan for addressing the educational needs of asylum seeker and refugee children in Nauru.  

R13 ... that the Department of Immigration and Border Protection, in consultation with the Australian Federal Police, undertake a full audit of all allegations of sexual abuse, child abuse and other criminal conduct reported to the Australian Human Rights Commission, to the Moss Review and to this inquiry, seeking the agreement of these bodies to share confidential information where necessary to conduct such an audit. 

The committee further recommends that, taking into account the need to protect personal privacy, the minister should report to the Senate by the end of December 2015, and every six months thereafter, setting out all allegations of a criminal nature made in relation to the RPC, and the action taken by the department and other relevant authorities in response. 

R14 ... that legislation be passed by the Australian Parliament requiring the mandatory reporting of any reasonably suspected unlawful sexual contact, sexual harassment, unreasonable use of force or other assault perpetrated against asylum seekers at the Regional Processing Centres, under similar terms as the mandatory reporting provisions contained in existing Commonwealth, state and territory laws. 

Such legislation should require that the reporting is made to the Department of Immigration and Border Protection and the Australian Federal Police, as well as any relevant state, territory or foreign police force and, where the matter relates to a child, child protection authorities in any relevant jurisdictions. The legislation should utilise Category C or D extraterritorial jurisdiction to apply in Nauru, and impose penalties for noncompliance comparable with those which apply in existing legislation within Australia. 

R15 Given the committee's concerns about the level of accountability and transparency that currently applies to the operation of the regional processing centre in the Republic of Nauru, the committee recommends that the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 31 December 2016:

a) conditions and treatment of asylum seekers and refugees at the Regional Processing Centre in the Republic of Nauru; 

b) transparency and accountability mechanisms that apply to the Regional Processing Centre in the Republic of Nauru;  

c) implementation of recommendations of the Moss Review in relation to the regional processing centre in the Republic of Nauru; 

d) the extent to which the Australian funded regional processing centre in the Republic of Nauru is operating in compliance with Australian and international legal obligations;  

e) the extent to which contracts associated with the operation of offshore processing centres are: • delivering value for money consistent with the definition contained in the Commonwealth procurement rules; • meeting the terms of their contracts; • delivering services which meet Australian standards; and   

f) any related matter.

Powers of the Australian Head of State

'Powers of the Head of State' by Michael Crommelin in (2015) 38(3) Melbourne University Law Review 1118-1139 comments

The proposed law to alter the Constitution to establish the Commonwealth of Australia as a republic did not attempt to identify and define the powers of the head of state. Instead, it provided for the President to assume, essentially unchanged, the powers conferred by the existing Constitution on the Queen and the Governor-General. Those powers have never been clearly identified and defined. Their scope depends heavily on constitutional conventions. This article argues that reliance on constitutional conventions is misplaced and that any future proposal to establish a republic must specify the powers of the President as well as the method of appointment to that office.

Crommelin concludes -

Meeting the challenge of identification and definition of the powers of the head of state in a republican constitution requires explicit classification of those powers according to their manner of exercise.

The formal powers of the Governor-General are uncontroversial. They should be conferred directly on the President. 

The powers conferred on the Governor-General in Council are also relatively straightforward. There is no reason to suppose that, upon the change from monarchy to republic, the effective operation of the legislative, executive or judicial branches of the Commonwealth would be increased by providing discretionary authority to the President in the exercise of any of these powers. Accordingly, they should be conferred on the President in Council.

Some of the powers of the Governor-General that are exercisable only on Ministerial advice should also be conferred on the President in Council. The executive power of the Commonwealth should be vested in the President (if vesting is deemed necessary) and declared to be exercisable by the President in Council, together with the command in chief of the naval and military forces of the Commonwealth, the transmission of a message to the House of Representatives or Senate recommending the purpose of an appropriation, and the assent to a proposed law passed by the House of Representatives and the Senate.

Other powers of the Governor-General that are exercisable only on ministerial advice should be conferred on the President and declared to be exercisable only in accordance with the advice of the Prime Minister. These include the selection, summoning and dismissal of members of the Federal Executive Council and the allocation of portfolios to Commonwealth Ministers.

Two further powers of the Governor-General which may currently confer discretionary authority would require special treatment. First, the President in Council rather than the President should exercise the power to convene a joint sitting of the members of the House of Representatives and the Senate after a double dissolution under s 57 of the Constitution. The jurisdiction of the High Court to determine whether the requirements of s 57 of the Constitution have been satisfied in relation to a proposed law enacted at a joint sitting is sufficient to protect the constitutional integrity of the deadlocks procedure without any need to confer discretionary authority on the President. Secondly, the President should be required to submit a proposed law for the alteration of the Constitution to referendum under s 128 of the Constitution after its passage by Parliament, whether by each House or by one House twice, as a corollary of the fact that s 128 allows such a proposed law to originate in either House. Then there would be no need to confer discretionary authority on the President.

In my opinion, only six reserve powers should be conferred on the President. They are the powers of appointment of the Prime Minister, dismissal of the Prime Minister, summoning Parliament, prorogation of Parliament, dissolution of the House of Representatives, and dissolution of the Senate and the House of Representatives simultaneously under s 57 of the Constitution. The exercise of each of these powers in particular circumstances poses a threat to our system of government sufficient to justify the exercise of discretionary authority of the President in fulfilment of a duty to uphold the Constitution.

Both principle and pragmatism demonstrate that reliance on constitutional conventions is more likely to hinder than help the identification and definition of the reserve powers of the head of state. Any inclination to perpetuate the Barton approach should be firmly resisted. Instead, the Constitution should simply state that the President has a duty to uphold the institutional integrity of the Constitution, including the principle that a government must have the confidence of the House of Representatives.

Bitcoin, the UCC and payment system regulation

'Bitcoin and the Uniform Commercial Code' by Jeanne L. Schroeder comments

Much of the discussion of bitcoin in the popular press has concentrated on its status as a currency. Putting aside a vocal minority of radical libertarians and anarchists, however, many bitcoin enthusiasts are concentrating on how its underlying technology – the blockchain – can be put to use for wide variety of uses. For example, economists at the Fed and other central banks have suggested that they should encourage the evolution of bitcoin’s blockchain protocol which might allow financial transactions to clear much efficiently than under our current systems. As such, it also holds out the possibility of becoming that holy grail of commerce – a payment system that would eliminate or minimize the roles of third party intermediaries. In addition, the NASDAQ and a number of issuers are experimenting with using the blockchain to record the issuing and trading of investments securities.

In this Article, I examine the implications for bitcoin under the Uniform Commercial Code (the “U.C.C.”). Specifically, I consider three issues. In Part 1, I discuss the characterization of bitcoin – which I am using generically to refer to any virtual or cryptocurrency – under Article 9. The bad news is that it does not, and cannot be made to fit into, the U.C.C.’s definition of “money”. If held directly by the owner, bitcoin constitutes a “general intangible”. Unfortunately, general intangibles are non-negotiable. This could greatly impinge on bitcoin’s liquidity and, therefore, its utility as a payment system.

In Part 2, I show how this may be mitigated by the rules of Article 8 governing investment securities. If the owner of bitcoin were to choose to hold it indirectly through a financial intermediary, then she and the intermediary could elect to have it treated as a “financial asset” which is super-negotiable. Unfortunately, this comes at the cost of eliminating one of the primary attractions of cryptocurrency, namely the ability to engage in financial transactions directly without a third-party intermediary. However, Article 8, may already provide a legal regime for another contemplated use for the blockchain – namely as a readily searchable means of recording the ownership and transfer of property generally.

In Part 3, I explain how cryptosecurities fall squarely within Article 8's definition of “uncertificated securities.” Ironically, therefore, the creation of bitcoin securities may finally breathe life to little used provisions that were invented almost 40 years ago in a failed attempt to solve a completely different problem.

'The Coming of Age of Digital Payments as a Field', a paper by Ignacio Mas and Ross P. Buckley, has

three objectives. It lays out the key differences between a banking and a payments mindset, within the historical context in which these fields have developed. It initiates a discussion on whether it is useful to articulate the digital payments space as an emerging profession distinct from banking, and if so, what might be the core elements of its identity and how might a sense of a profession emerge. Finally, it looks at the main vision, information and human capacity gaps that are at present limiting the pace of development of the digital payments space.

In referring to 'Breaking the payment innovation floodgates' the authors comment

Given bankers´ traditional reticence to develop stand‐alone payment services with the levels of convenience and certainty that customers demand, a host of players have entered the space in the last decade. They come from diverse backgrounds —from large mobile operators and retailers to tiny specialist internet start-­‐ups— but they all share the technology focus that enables transactions to happen fast, with as few clicks as possible, anytime and anywhere. The digital payments sector has grown beyond all recognition and continues to evolve fast.

The innovation floodgates are being torn asunder by two main forces. From a technology standpoint, the internet and smartphones make it possible to design rich and scalable solutions at a fraction of the cost it would have taken a decade earlier. From a regulatory standpoint, there is a growing trend for regulators to allow new specialist payment service providers or e-­‐money issuers the opportunity to get into the business without having to acquire a banking license or partner with a sponsor bank.

Banking is centuries old, but the field of digital payments is only fifty years old. With hindsight, we can identify at least four waves of innovation around digital payments. The first wave of payment innovators sought to ride on top of, rather than displacing, banking services. Such was the case with the VISA and MasterCard credit associations that emerged in the 1950s, and with internet payment service providers such as PayPal that emerged in the late 1990s. These systems rely on banks to conduct all customer due diligence and provide cash in and cash out services. If you don´t have a bank account, you simply cannot have a credit card or a PayPal account.

A second wave of payment innovators sought to stand alongside banks, and even became a direct competitor to them. Their innovation was to go beyond the purely digital and establish a brick-and-mortar network of stores where customers could complete their registration and conduct cash in/cash out transactions. These were the mobile money systems that emerged in a number of developing countries following the launch of Smart Money in the Philippines and is epitomized by M-PESA in Kenya. Now you can be part of a digital payment network even if you don´t have a bank account.

A third wave of payment innovators has been making headlines in the last five years, mainly in developed countries and the US in particular. They are seeking to unbundle the payments landscape and entrench themselves in particular stages of the payments value chain. They depend on other players in the ecosystem to do the rest, but through their bottleneck control of their stage they seek to exert a major control over their partners and have substantial influence on the development of the market. Examples are Square, for low cost merchant payments; Google Wallet and Apple Pay for payment applications; and Stripe, as an integrated suite of application programming interfaces (APIs) or hooks into a host of payment options for businesses.

A fourth wave of payment innovators is now emerging, with a much more disruptive agenda: they seek to lay an entirely new foundation for financial transactions that is based on decentralized trust, peer-­‐to-­‐peer networks running on standard internet infrastructure, and open source protocols managed by the community of users. This is the promise of the new cryptocurrency platforms, such as Bitcoin and Ripple. These platforms may enable the creation of a host of new players that will not be content just to rival banks, but in fact will seek to displace banks altogether.