Corneloup 2.0

In Bickle & Ors v Corporation of the City of Adelaide [2013] SASC 115 the South Australian Supreme Court has summarily dismissed an appeal by the Rundle Mall 'street preachers' against the decision regarding an Adelaide council prohibition on their activity.

The council's bylaws included a requirement for people to gain permission to "Preach, canvass, harangue, tout for business or conduct any survey or opinion poll" in the Rundle Mall precinct, subject to “Speakers Corner” and "any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal State or Local Government Election or during the course and for the purpose of a Referendum".

The dismissal of the appeal - with the Court commenting that the appellant's argument was "foredoomed to fail" - reflects the earlier Corneloup litigation, in particular the High Court's judgment in Attorney-General (SA) v Corporation of the City of Adelaide & Ors (2013) 87 ALJR 289, [2013] HCA 3 and The Corporation of the City of Adelaide v Corneloup & Ors [2011] SASCFC 84.

Survey Plans

The Copyright Tribunal - a body established under s 138 of the Copyright Act 1968 (Cth) - has made a decision on the statutory rate payable by the New South Wales Government for its use of survey plans under that Act.

The rate setting follows litigation between the state government and Copyright Agency Ltd (CAL), the collective rights body.

CAL argued that the use of survey plans by NSW departments and other state bodies was subject to a remunerated statutory licence. NSW has been using survey plans lodged with its Land and Property Information (LPI) agency for purposes that include sale to members of the public and sale via information brokers. The Government argued that it had a free implied licence to use - including sell -the plans.

The litigation culminated in Copyright Agency Limited v State of New South Wales [2008] HCA 35. In that judgment the High Court of Australia found in favour of CAL, with NSW being required to remunerate the rights holders. Payment has been contentious. The Australian Law Reform Commission Discussion Paper proposed abolition of the government statutory licence and introduction of a broad fair use exception.

The decision sets a statutory rate for the amount payable by government: it is reported as 7.94% of the price on all sales with a deemed price for sales by brokers at $14.50 + CPI.

Sentencing

'Bonds, suspended sentences and reoffending: Does the length of the order matter?' (Australian Institute of Criminology Trends and Issues paper, 2013) by Suzanne Poynton and Don Weatherburn uses the NSW Bureau of Crime Statistics and Research (BOCSAR) Reoffending Database.

The authors assess [PDF] whether the length of a bond or suspended sentence makes any difference to the time to first new offence, and whether long bonds and suspended sentences are more effective than short bonds in reducing reoffending. They also examine whether court supervision has any effect on length of sentence, and reoffending.

In 2011, the Australian courts placed a total of 77,940 offenders on a good behaviour bond or a fully suspended sentence, accounting for 15 percent of all penalties imposed. 

The conditions under which suspended sentences and good behaviour bonds can be imposed vary from state to state. In New South Wales (where the current study was undertaken), the Crimes (Sentencing Procedure) Act 1999 (NSW) allows a court to impose a sentence of imprisonment if it is satisfied ‘having considered all possible alternatives, that no penalty other than imprisonment is appropriate’ (s 5 Crimes (Sentencing Procedure) Act ). The court must then determine the length of the custodial sentence and decide how the custodial sentence should be served. If the term of imprisonment does not exceed two years, s 12 of the Act allows the court to suspend the prison sentence and place the offender on a good behaviour bond when released from custody. In circumstances where imprisonment may not be appropriate, s 9 of the Crimes (Sentencing Procedures) Act 1999 (NSW) permits the court to make an order directing an offender to enter into a good behaviour bond for a specified term (not exceeding 5 years). The consequences arising from a breach of a suspended prison sentence or a good behaviour bond can be severe. If the conditions attached to a suspended prison sentence are breached, the court can revoke the bond and order the original sentence of imprisonment to be served. If an offender fails to comply with the conditions of a good behaviour bond, the court may sentence the offender for the original offences as if the bond had never been made; this can include imposing a term of imprisonment. As such, these alternatives to full-time custody have considerable potential to deter further offending.

Dematerialisation

'Dematerialization, Pragmatism and the European Copyright Revolution' [forthcoming in (2014) Oxford Journal of Legal Studies] by  Jonathan Griffiths  argues

Over the last three centuries, a particular model of copyright law has evolved in the United Kingdom. Under this "dematerialised" model, the law’s attention is directed towards an immaterial, malleable essence (identified as, amongst other things, “originality”, “labour and skill” or creativity”). This immaterial essence has come to serve as a touchstone for the resolution of all fundamental questions concerning the scope and attribution of rights under copyright law - as the threshold for legal protection, as a marker of authorship and as the key concept in the assessment of infringement. Nevertheless, some aspects of copyright doctrine have, until very recently, appeared to remain incompatible with this dominant model. In some situations, rather than focusing purely on an abstract form of property that is capable of shifting from form to form, the law has continued to limit the scope of a copyright owner’s powers by reference to the boundaries of the material form with which the work is first recorded. It is argued here that the maintenance of these apparently incompatible aspects of copyright doctrine is not necessarily the product of theoretical incoherence. Rather, the law’s continued ability to regulate some forms of copyright dispute by reference to material form has served an important function in justifying judicial resistance to expansionist pressures. 

Since 2009, however, this pragmatic, focus-shifting system has been destabilised by the copyright jurisprudence of the Court of Justice. The Court’s judgments in Infopaq International A/S v Danske Dagblades Forening and a series of subsequent cases have dramatically accelerated the pace of copyright harmonisation in the European Union. As a result, the United Kingdom may now be obliged to adopt a more consistently dematerialised system of copyright law than that which has previously applied and our courts may have been deprived of some of the tools they have employed to resist unduly broad claims to copyright protection. The article begins with an overview of the development of the dematerialised model in the United Kingdom and indicates, in particular, the strenuous efforts made to ensure consistency with the model in the ten years or so preceding Infopaq. It then goes on, first, to explain how, despite these efforts, the material, recorded boundaries of creative forms continued to hold legal significance in certain situations and, secondly, to highlight the important function served by these apparently inconsistent aspects of doctrine. The article concludes by exploring the ways in which the Court of Justice’s recent copyright jurisprudence threatens this pragmatic system.

Gnomes

'Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity' (George Mason Law & Economics Research Paper No. 13-39, 2013) by James Cooper argues that

Privacy has begun to creep into antitrust discussions. In some ways, this should not be surprising. Some of the largest and most ubiquitous companies, like Google and Facebook, give away their services in return for consumer data. If information about ourselves really is the price we pay for content, why shouldn’t antitrust limit companies’ ability to collect and analyze consumer data? Although this logic has some facial appeal, this paper identifies three major concerns with the inclusion of privacy in antitrust analysis. The first concern is conceptual. The analogy between privacy and quality begins to break down once we recognize that unlike selecting lower quality levels to enjoy lower costs, firms invest in collecting and analyzing data to improve content and to enhance matching between sellers and consumers, who have heterogeneous tastes for privacy. Second, an antitrust rule that limits firms’ ability to collect and analyze consumer data is likely to raise some First Amendment concerns. Third, allowing antitrust enforcers to consider privacy would inject an undesirable level of subjectivity into antitrust enforcement decisions, which is likely to attract socially wasteful rent seeking expenditures and to deter beneficial data collection efforts.

The Higher Obscurity

Another outbreak of the French Disease ....

Schizorevolutions vs. Microfascisms: A Deleuzo-Nietzschean Perspective on State, Security, and Active/Reactive Networks' by Athina Karatzogianni and Andy Robinson is

based on a distinction between states and networked movements on the one hand, and between two types of network on the other. As we have argued in Power, Resistance and Conflict (Karatzogianni and Robinson 2010), networks can be divided into the affinity-active network form and the reactive network form. These derive from the distinctions between active (or schizoid) and reactive (or paranoiac) forces or desires in Deleuzian/Nietzschean theory. Reactive forces are associated with closure of meaning and identity. Active forces are associated with difference and transformation: ‘only active force asserts itself, it affirms its difference and makes its difference an object of affirmation’ (Deleuze, 2006: 55-6). Active forces are connected to affirmative desire, and reactive forces to nihilistic desire; affirmation and negation are ‘becoming-active’ and ‘becoming-reactive’ respectively (Deleuze, 2006: 54). For Deleuze, active forces are primary, as without them, reactive forces could not be forces (Deleuze, 2006: 41). Reactive force can dominate active force, but not by becoming active – rather, by alienating and disempowering it (2006: 57). Active desire subordinates social production to desiring-production, while reactive desire does the opposite. While open space is a necessary enabling good from the standpoint of active desire, it is perceived as a threat by the threatened state, because it is space in which demonised Others can gather and recompose networks outside state control. Hence, for the threatened state, open space is space for the enemy, space of risk. Given that open space is in contrast necessary for difference to function (since otherwise it is excluded as unrepresentable or excessive), the attempts to render all space closed and governable involve a constant war on difference which expands ever more deeply into everyday life. Inevitably, horizontal networks flow around the state’s restrictions, moving into residual unregulated spaces, gaps in the state’s capacity to repress, across national borders, or into the virtual. Networks tend to take a reactive form when exposed to a hostile context. Bourdieu similarly argues that neoliberalism strengthens reactive networks by demoralising and producing emotional turmoil (1998: 100), while Bauman links paranoiac social forces to insecurity (Bauman 2000). This discussion focuses on unraveling the interplay between security/insecurity, active/reactive, schizorevolutionary/microfascist, and autonomous desire/fear management in contemporary agency, state (in)security, and resistance movements.

It perhaps sounds better in Klingon.

COAG

From the 86 page COAG [PDF] by Lynsey Blayden (NSW Parliamentary Research Service) -

In 2006, the Council of Australian Governments (COAG) adopted a new national reform agenda and established the COAG Reform Council, developments which were later used as a foundation for the first Rudd Government’s reforms to intergovernmental relations in Australia. These reforms used COAG as their focus and established a revised federal financial relations scheme and a broader reform agenda. They also gave the COAG Reform Council an expanded role in measuring the progress of reform across all jurisdictions and reporting its findings to COAG.

The apparatus of COAG and intergovernmental relations now encompasses an extensive system of COAG Councils and other fora, as well as less visible forms of collaboration, which take place between the agencies and officers of all levels of government. This structure is largely focussed on developing and implementing the COAG reform agenda, which covers a wide range of policy fields, including education, skills and training, health, housing and homelessness, the environment and regulatory reform. This policy agenda is underpinned by the revised financial framework that is embodied in the Intergovernmental Agreement on Federal Financial Relations. The reforms to COAG and its processes instituted by the first Rudd Government have changed the character of COAG, arguably transforming it from a leaders’ summit to a central institution of government. This new significance of COAG has given rise to renewed concerns relating to the lack of permanency, transparency and accountability in intergovernmental relations.

This paper provides an overview of the operation of COAG, and other aspects of intergovernmental relations in Australia. A two-part approach has been taken.

Part One provides a ‘bare bones’ overview of the framework of COAG and its reform agenda. Its aim is to provide a kind of ‘mud map’ to enable relatively easy navigation of the labyrinthine structure of COAG, its associated Councils and its current reform agenda. Much of the information contained in the first part is taken from COAG-related websites. In an attempt to make this map clear, commentary and critique has been left to Part Two of the paper, to the extent that this is possible.

COAG is something of an atypical body or institution, neither constitutional nor statutory in origin or nature. It is more amorphous, an administrative creation of executive will, resistant to neat description or characterisation. It is something of a moveable feast, constantly changing and adapting to political and other circumstances. Any description of it can therefore only hope to capture its working at a particular point in time. It is this task that Part One of this paper has set itself, relying solely on publicly available material.

Part Two provides an overview of some of the current evaluations of COAG, in light of its apparent transformation, and also some of the suggestions for reform that have been put forward. Part Two does not attempt to cover all of the relevant issues that are identified in the literature about federalism and intergovernmental relations. Its aim is rather to canvass some of these issues in a broad way while focussing primarily on COAG.

Discussed in Part Two are the following issues with COAG and the practice of intergovernmental relations in Australia:

• Lack of transparency in intergovernmental relations; 

• Accountability – COAG, intergovernmental relations and Parliaments; 

• Commonwealth’s dominance of COAG; 

• Lack of institutional structures and systems; and 

• COAG and the consequences of intergovernmental relations.

Many of the problems associated with intergovernmental relations in Australia can be traced back to the features of Australia’s federal structure, which continues to influence and shape the ways in which governments transact their affairs. The continuing relevance of the issues discussed in Part Two of this paper suggest the need for considered evaluation of Australian federalism in the twenty-first century, what it is, what it does, what it should do and where it is going.