21 March 2018

US Antitrust and Equity

Whatever Did Happen to the Antitrust Movement?' by Herbert Hovenkamp in Notre Dame Law Review ( forthcoming) comments
Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.
In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of American reform.” In its early history, he observed, antitrust had a powerful movement quality but very little success in the courts. Later, it ceased to be a movement just as it was attaining litigation success. As a movement, antitrust often succeeds at capturing political attention, but it fails at making effective – or even coherent – policy. The coherence problem shows up in goals that are both unmeasurable and fundamentally inconsistent, but with their contradictions rarely exposed. Among the most problematic contradictions is the one between small business protection and consumer welfare. Consumers benefit from low prices, high output and high quality and variety of products and services. But when a firm is able to offer these things it invariably injures rivals, typically smaller firms or those dedicated to older technologies. Although movement antitrust rhetoric is often opaque about specifics, its general effect is invariably to encourage higher prices or reduced output or innovation, mainly for the protection of small business or firms dedicated to older technologies. Indeed, some spokespersons for movement antitrust write as if low prices are the evil that antitrust law should be combating.
This piece sets out to do three things. First it describes so-called “movement” antitrust, focusing on recent writings disparaging consumer welfare in favor of alternatives that seek to protect small business welfare, redistribute wealth, or pursue other goals. Then it describes the fundamental contours of technical antitrust, whose stated goal is the protection of low prices and high output, and explains why this approach is much more consistent with concerns about economic rationality, due process, administrability, and federalism. Finally, it examines several areas where technical antitrust rules could be improved, focusing mainly on merger policy and one particularly problematic area, which is antitrust’s historical failure to deal adequately with monopsony power in labor markets.
'Equity: Notes on the American Reception' by Samuel L. Bray in Philosophical Foundations of the Law of Equity (Oxford University Press, Forthcoming) considers
the reception of equity in the law of the United States, and in particular the reception of two ideas: first, a small-scale moral reading of the law, analysed under the rubric of “nice adjustment,” and second, a willingness of courts to give direct orders to private parties and government officials, analysed under the rubric of “judicial command.” These ideas have had very different careers in the United States. Nice adjustment has faded, while judicial command has been embraced with enthusiasm. This article asks why.
Bray comments
The Earl of Oxford’s Case famously presents equity as a solution to the problem of exceptional cases. In an exceptional case, equity offers a moral reading of the law. In this moral reading—this appeal to Conscience — the chancellor could make a ‘nice adjustment’ to keep clever people from circumventing the law, from exploiting its inevitable gaps and ambiguities. Below the surface, The Earl of Oxford’s Case also shows another distinguishing trait of equity. Equity was willing to tell people what to do. The intricate history of this seventeenth-century case does not need to be recounted here, but it should be noted that the defendants in equity, the master and bursar of Magdalen College Cambridge, spent five weeks imprisoned in the Fleet for their refusal to submit to Chancery’s jurisdiction.  
In the centuries since The Earl of Oxford’s Case, equity has been received in the United States. That reception is the topic of this article. ‘Reception’ is used not only in the technical sense of adoption of a body of law as binding, but also in a looser sense: how has equity made its way in the United States? Particular attention is given to two ideas from equity: first, a small-scale moral reading of the law, analysed under the rubric of ‘nice adjustment’, and second, a willingness of courts to give direct orders to private parties and government officials, analysed under the rubric of ‘judicial command’. These two ideas have common premises and are subject to common criticisms. But their reception in the United States has been strikingly different. Nice adjustment has faded, while judicial command has been embraced with enthusiasm.
He concludes
What lies ahead for equity in the United States is not easy to predict. As the American baseball player Yogi Berra said, ‘It’s tough to make predictions, especially about the future.’ Nor is it easy to say what lessons should be drawn from the American experience with equity. One way to join prediction of the future with assessment of the past is to ask which of our existing beliefs about law should be revised in light of the American experience of equity. Here are several possibilities: 
1. Professional knowledge matters more than we thought, and what the law says matters less than we thought. There have been huge changes in the American practice with respect to these two ideas from equity, even though there has been essentially no change in relevant legal authority. 
2. Professional knowledge is more fragile than we thought, and more dependent than we thought on what is taught by the law schools and other institutions that transmit legal knowledge. 
3. There was once a vigorous argument among legal writers about whether equity needed to be special in order to be useful. On one side, some argued that getting rid of equity’s sense of separateness would bring its demise. On the other side, some said that was ridiculous: equity could offer its gifts to the legal system without being considered something special or distinctive. Now we know who was right. Step by step, the decline of equity’s distinctiveness has brought a corresponding decline in the knowledge and appreciation of equity. 
Relatedly, there may be an implication regarding the efforts to pare equity down to its unique essentials.57 If equity is to make a differentiated contribution to the law, it might need a certain scale, along with ample markers of distinctiveness. Perhaps it is only a larger, woolier equity that can fend off the predators. 
What lies ahead, and what lessons should be learned from what lies behind, depend on the knowledge of equity among future generations of American lawyers. If that knowledge continues to decay, then by the end of this century in the United States a book called Philosophical Foundations of the Law of Equity may seem as quaint as Philosophical Foundations of the Law of Mortmain. But if the knowledge of equity grows, that knowledge can be used: all of the legal authorities that make equity relevant are still there, waiting to be picked up by an enterprising lawyer.

17 March 2018

Speech, Reporting and Refugees

'Freedom of Speech under the Southern Cross—It Arrived and Departed by Sea?' by Wendy E. Bonython and Bruce Baer Arnold in (2018) The Round Table comments
Australian offshore processing of asylum seekers and others seeking to enter the country without authorisation has attracted substantive criticism for abuses of their human rights, particularly their mandatory detention in Australian-funded facilities located in Nauru and Papua New Guinea. Official and corporate disregard of the rights of Australians in dealing with those people—contrary to the official accountability that underlies the liberal democratic state—has attracted less attention. This article explores the offshore processing regime through an examination of how legislation that criminalises disclosure of information about mandatory detention is conceptually inconsistent with the freedom of political communication implied under Australia’s Constitution, and expected by Australian citizens. That legislation treats asylum seeking as a matter of national security rather than humanitarian law. It conflicts with the ethical obligations of health practitioners and others, and with Australian expectations about effective mandatory reporting intended to prevent abuse of children and other vulnerable people. It affects Australian and other officials, contractors, care providers, advocates, and journalists who deal with asylum seekers inside and outside Australia. Accountability and minimisation of harms to non-citizens can—and should—be achieved through an independent oversight mechanism reporting directly to parliament. 
Law is often a matter of conflicting values, interests, and rules. Freedom of speech and accountability (distinguishing features of the liberal democratic state), maintenance of sovereign borders (with the ability to exclude non-citizens), the protection of vulnerable people from harm, and respect for contract that restricts disclosure of information by employees are all governed by discrete bodies of law. Where those laws intersect in regard to Australian asylum seeker policy, tensions reflecting underlying values, interests, and rules become evident. This article explores those tensions by considering Australia’s offshore processing of refugees, particularly detention occurring in a privately operated facility on Nauru, a state that is formally independent but in practice heavily dependent on its Australian partner. Claims of sexual abuse, other violence, and self-harm at detention facilities are credible and concerning. Public discussion and investigation of those claims has been restricted through official disregard of access principles articulated in the national freedom of information statute, and more recently through ‘border protection’ law that criminalises unauthorised disclosure of information that is potentially relevant to both the exercise of human rights and the accountability of Australia’s executive. That border protection law co-exists uneasily with legal and ethical obligations binding professionals, including health and social workers and educators, to mandated reporting of child abuse. It also collides with the freedom of political communication that is discerned by Australia’s High Court in interpretation of the national constitution. 
The article begins by considering Australia’s recent history regarding exclusion of asylum seekers, an exclusion marked by public policy rhetoric about national security and existential threats to the state requiring both militarisation of border policing and restrictions on reporting about that policing. The rhetoric has culminated in establishment of the Australian Border Force within a national Department of Immigration and Border Protection, along with passage of the Australian Border Force Act 2015 (the ‘border protection law’) and associated Secrecy and Disclosure Rule. 
The article then considers Australia’s weak constitutional protection for dignity, official accountability, and public participation, in particular regarding an implied freedom of political communication rather than broader freedom of expression and the absence of a recognised ‘right to know’. It notes that the secrecy regime is inconsistent with the freedom of political communication that Australian citizens working as contractors or Australian government employees at Nauru or Papua New Guinea should enjoy in informing the Australian and international communities on matters of public interest. It identifies ethical and statutory obligations of health professionals and other individuals to support asylum seekers, in particular by reporting specific and systemic abuse, but identifies inconsistencies in the effectiveness of that reporting, likely to be further entrenched by the Border Force secrecy provisions. Secrecy provisions criminalising the dissemination of information about the mistreatment of vulnerable people impermissibly reduce the accountability of the Australian government and its agents, irrespective of whether that mistreatment occurs within Australia or in a client state. 
The article concludes by suggesting an alternative model of reporting that would be consistent with international obligations and assuage political concerns regarding national security whilst fostering public confidence in the transparency and lawfulness of government action regarding Australia’s asylum seeker policy.

16 March 2018


The 'Great Beast' (or great fraud) Aleister Crowley reappears yet again.

In Bottrill v Sunol (Discrimination) [2018] ACAT 21, dealing with the latest dispute over the Ordo Templi Orientis (OTO), the ACT Civil and Administrative Tribunal considers what is a 'religion' and thus potentially covered under vilification regimes. There had been earlier appearances in eg Ordo Templi Orientis v Legg (Anti Discrimination) [2007] VCAT 1484 and Bottrill v Sunol & Anor (Discrimination) [2017] ACAT 81

The OTO had been characterised as a satanic cult that featured child sacrifice.

The Tribunal comments
In the dictionary of the Discrimination Act the following definition occurs
religious conviction includes— 
(a) having a religious conviction, belief, opinion or affiliation; and 
(b) engaging in religious activity; and 
(c) the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and 
(d) engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and 
(e) not having a religious conviction, belief, opinion or affiliation; and 
(f) not engaging in religious activity. 
In Church of the New Faith v Commissioner of Pay-Roll Tax (Vict.) (1983) 154 CLR 120,(the Scientology case), the High Court found that Scientology was a religion and canvassed the varying criteria that might be sufficient to satisfy that description. There were three separate decisions and the tests were not exactly the same. Mason ACJ and Brennan J said at [17]:
...for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in their comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion. The tenets of a religion may give primacy to one particular belief or to one particular canon of conduct. Variations in emphasis may distinguish one religion from other religions, but they are irrelevant to the determination of an individual’s or a group’s freedom to profess and exercise the religion of his, or their, choice. (emphasis added)
At [23] it was said not to be limited to theistic religions and the test of religious belief was satisfied by belief in supernatural ‘Things’ or ‘Principles’ and not to limited to belief in God or in a supernatural ‘Being’. 
Wilson and Deane J gave similar but not identical tests and said at [18]:
One of the more important indicia of a religion is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a religion. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium (cf. Malnak v. Yogi [1979] USCA3 125; (1979) 592 F (2d) 197 is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
They also said at [19]:
As has been said, no one of the above indicia is necessarily determinative of the question whether a particular collection of ideas and/or practices should be objectively characterized as a religion. They are no more than aids in determining that question and the assistance to be derived from them will vary according to the context in which the question arises. All of those indicia are, however, satisfied by most or all leading religions. It is unlikely that a collection of ideas and/or practices would properly be characterized as a religion if it lacked all or most of them or that, if all were plainly satisfied, what was claimed to be a religion could properly be denied that description. Ultimately however, that question will fall to be resolved as a matter of judgment on the basis of what the evidence establishes about the claimed religion. Putting to one side the case of the parody or sham, it is important that care be taken, in the exercise of that judgment, to ensure that the question is approached and determined as one of arid characterization not involving any element of assessment of the utility, the intellectual quality, or the essential Truth or worth of tenets of the claimed religion.
In Harrison and Commissioner for Social Housing in the ACT and Minister for Community Services and Minister for Aboriginal and Torres Strait Islander [2012] ACAT 10 at [50] it was said:
There is no definition of the phrase in the Discrimination Act 1991. The word conviction is used in this context in its ordinary meaning - to indicate a settled or strongly held belief.
In fact, there is a definition as set out above for religious conviction and it is much wider. 
Conclusion about religious conviction 
The test is wider than that explained in the Scientology case as it extends to non-belief. No doubt atheism was intended to be covered. Thus, the element of the supernatural is not essential. On the undisputed evidence in this case the OTO did satisfy the criteria described in the Scientology Case and the applicant had a conviction based on its teachings. If the crimes attributed to the applicant and OTO in the blog complained of were true, it would be likely that it would not be regarded as a religion as they would constitute: ...canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion


No great surprises in the report that Meow-Ludo Disco Gamma Meow-Meow has been unsuccessful after brouhaha over his bodyhacking of a Transport for NSW (TfNSW) travel card.

Mr Meow-Meow was noted here, here and in a piece for The Conversation.

TfNSW had taken action against him for not using a valid  ticket (using public transport without a valid ticket and for not producing a ticket to transport officers).

Despite hyperbole about 'cyborg rights',  he today pleaded guilty to both offences at Newtown Local Court.

The ABC reports that  Mr Meow-Meow
was fined $220 for breaching the Opal Card terms of use and was ordered to pay $1,000 in legal costs. 
The lawyer representing Mr Meow Meow argued that transport legislation had advanced to include methods of contactless payment through MasterCard and some smart phones. He said that the law should adapt to all available technologies including implantable tech. 
But Magistrate Michael Quinn said, while the legislation may catch up with technology in the future, the law of the day must be followed. 
Outside court, Mr Meow Meow said he was disappointed both offences were not dismissed and that he was ordered to pay legal costs. 
Despite the decision, Mr Meow Meow said he would continue to experiment with implanted technology. He said he was planning to push the boundary even further, replacing his Opal chip with one that will hold all of his personal information, including credit cards and memberships. 
DIY unauthorised modification of credit card and membership cards will breach the terms and conditions of his account with the credit card providers, so he can expect to see those businesses restricting or cancelling the relevant accounts.

Carceral Theory

Liberal to Carceral Feminism' by Karen Engle in Janet Halley, Prabha Kotiswaran, Rachel Rebouch√© and Hila Shamir (eds) Governance Feminism: Notes from the Field (University of Minnesota Press, 2018) comments 
Feminist legal theory came to international law and discourse later than it came to many other legal fields. It primarily emerged in international human rights where, in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. Not unrelatedly, it has primarily grown, and also developed significant influence, in the doctrinal areas of international humanitarian and criminal law. This piece, written as a chapter in a book on governance feminism, chronicles the trajectory of feminist engagement with international law, paying special attention to how both feminisms and feminists have played governing roles in its development and operation.
The chapter provides an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s. Each of the three approaches is identified according to its distinctive concern: liberal inclusion, structural bias, and the Third World, respectively. During the early period of feminist engagement, these approaches variously competed, complemented, and exchanged with each other in the push for a feminist foothold in human rights law. But the end of the Cold War, a compromise around “culturally sensitive universalism,” the emergence of a preoccupation with sexual violence in conflict, and the pursuit of criminal law as the primary response to it all ultimately functioned to favor a strand of structural bias feminism focused on female sexual subordination and to suppress and sideline the other feminist critiques, especially their material dimensions.
Tracing this genealogy, the chapter calls into question a dangerous common sense about sexual violence in conflict, a common sense that bears upon culture, sex, economic distribution, and criminalization, and that still dominates human rights law and discourse today. It seeks to motivate a return to, and reevaluation of, other possibilities of feminist critique that were left by the wayside when the structural bias critique prevailed, and when sexual violence and carceral responses became central to feminist approaches to human rights law.

Spatial Privacy and Anonymity

Waters v Transport for NSW [2018] NSWCATAD 40 is a landmark case regarding privacy in Australia.

The Tribunal considered Privacy and Personal Information Protection Act 1998 (NSW), commenting
These proceedings concern whether the requirements of Transport for NSW in respect of electronic (Opal) ticketing for public transport concession entitlement holders contravene an Information Protection Principle (IPP) under the Privacy and Personal Information Protection Act 1998 (the PPIP Act). The dominant concern is that the introduction of electronic ticketing removed the ability of certain concession entitlement holders to travel anonymously under that entitlement, with their movements tracked by the respondent agency (as an arm of the Government), contrary to the privacy protections of citizens under the PPIP Act. One issue is whether the collection of personal information for that purpose is reasonably necessary having regard to the stated purpose that the information is collected. ...
The applicant’s general grievance is that this change in the policy has introduced an effective form of surveillance over his ingress and egress within the relevant parts of the State by the lack of any equivalent option for anonymous travel. The applicant ties this grievance to various IPP’s but predominantly his grievance is that the ‘requirement’ of collection of his personal information is not reasonably necessary for the unstated purpose of travel on public transport as an eligible Senior. This central argument equates to a breach of IPP 1 and as a result is contrary to the requirements in s 8 of the PPIP Act
The Australian Privacy Foundation comments
The Foundation has long argued that the requirement for registration for concession Opal users is a breach of the privacy laws. All users of the public transport system in NSW should have the right to travel anonymously and not be tracked.
A case was brought against Transport for NSW by Nigel Waters (life member and a former board member of the Australian Privacy Foundation) in 2016. Mr. Waters objected to a record of his travel being kept that was clearly linked to his identity. Mr. Waters wanted to be able to use public transport anonymously (an option available for Adult Opal Card users).
The NSW Civil and Administrative Tribunal agreed that the travel information was not reasonably necessary. This is a big win for Mr. Waters and tens of thousands of Gold Opal Card users in NSW.
Nigel Waters said: “This is major win for privacy rights in NSW. It clearly raises the bar for all NSW government agencies to apply ‘Privacy by Design’ principles to complex new data driven systems.”
David Vaile, Chair of the Australian Privacy Foundation said: “You shouldn’t have to put up with being potentially spied on as you travel just because you verify your eligibility for a concession.”
Kat Lane, Vice-Chair of the Australian Privacy Foundation said: “The big question is now what Transport for NSW will do? Will they do the right thing and finally recognise the human rights of NSW residents to use public transport anonymously?”
The Australian Privacy Foundation calls on Transport for NSW to immediately disconnect identity details from travel records so that all residents of NSW have their privacy rights respected.


The Australian Competition and Consumer Commission remains the most effective gatekeeper in Australia's privacy regime, indicated in today's announcement that the ACCC is acting against Equifax, the profiling giant that absorbed the controversial Australian business Veda Advantage (noted here and here) and that in the US attracted substantive criticism over its handling of a major data breach.

The ACCC states
The ACCC has today instituted proceedings in the Federal Court against credit reporting body, Equifax Pty Ltd (formerly Veda Advantage Pty Ltd), alleging breaches of the Australian Consumer Law (ACL).
The ACCC alleges that from June 2013 to March 2017, Equifax made a range of false or misleading representations to consumers, including that its paid credit reports were more comprehensive than the free reports, when they were not.
Equifax also allegedly represented that consumers had to buy credit reporting packages for it to correct information held about them, or to do so quicker. In fact, Equifax was required by law to take reasonable steps to correct the information in response to a consumer’s request for free.
In addition, the ACCC alleges that Equifax represented that there was a one-off fee for its credit reporting services, when its agreement provided that customer’s subscriptions to the services automatically renewed annually unless the consumer opted out in advance. We allege this renewal term is an unfair contract term, which is void under the ACL. In all the circumstances, it is alleged that Equifax acted unconscionably in its dealings with vulnerable consumers including by making false or misleading representations, and using unfair tactics and undue pressure when dealing with people in financial hardship.
“We allege that Equifax acted unconscionably in selling its fee-based credit reporting services to vulnerable consumers, who were often in difficult financial circumstances,” ACCC Commissioner Sarah Court said.
“We allege that Equifax told people they needed to buy credit reporting services from them in situations when they did not. It is important for consumers to know they have the legal right to obtain their credit report and to correct any wrong information for free.”
By law, consumers are entitled to access their credit reporting information for free once a year, or if they have applied for, and been refused, credit within the past 90 days, or where the request for access relates to a decision by a credit reporting body or a credit provider to correct information included in the credit report.