08 February 2013

Unicorns again

A media release from Deakin University has announced that
There is no right to privacy, in fact the push for more rights to privacy is irrelevant in the face of social media and technological advances, Deakin University’s Head of the Law School, Professor Mirko Bagaric argues in a new book to be launched in Canberra today. 
Described by Tony Abbott as involving  "big thinkers on big ideas" the book  is Future Proofing Australia, The Right Answers for Our Future,  compiled by Senator Brett Mason and Daniel Wood and featuring essays by figures such as Cardinal George Pell.

The media release helpfully indicates that
 As an expert on legal and moral philosophy and regular media commentator and columnist, this is familiar territory for Professor Bagaric who is no stranger to public or intellectual debate. “Social reform and addressing moral and legal issues is one of the most complex tasks which face governments,” he said. “In areas such as health and transport change is driven by empirically demonstrated improvements yet on social and moral issues there are no agreed criteria for measuring and evaluating competing claims. ...  Professor Bagaric said one of the emerging issues facing society is the right to privacy.
“The right to privacy has blossomed in recent decades, to the point where it has developed into an enforceable legal right in many countries.
“The existence of a right to privacy has been assumed, but not proven and no one has rigorously analysed whether privacy is desirable, until now.” 
No one "has rigorously analysed whether privacy is desirable"? Really?

The release goes on to state that
Professor Bagaric said his essay explored whether a strong right to privacy improved human prosperity as well as the legal protection accorded to privacy.
“I look at the nature of rights and how they should be evaluated and balanced out in the face of competing rights and the common good,” he said.
“I suggest that based on that analysis there is no demonstrable need for a strong right to privacy, in fact it would damage society.”
Professor Bagaric said privacy was a late 20th Century, early 21st Century invention and reflected a highly individualistic society which feared the technology it had developed.
“The current legal focus and level of discussion concerning the right to privacy is an illustration of the human propensity to lose perspective,” he said. ...
Professor Bagaric said privacy is a code for secrecy and was normally the refuge of the guilty, paranoid and misguided.
“It results in a less informed, less transparent and less enlightened community,” he said.
“The truth about privacy is that the more we know about other people, the clearer it becomes that they are like us, it leads to a reduction in stereotypes and prejudices.
“Less, not more privacy, benefits the community.”
That appears to be an echo of Bagaric's 22 April 2007 op ed in The Age, in which he stated that
privacy is a middle-class invention by people with nothing else to worry about. Normally they would have every right to live in their moral fog, but not when their confusion permeates the feeble minds of law-makers and puts the innocent at risk.
The right to privacy is the adult equivalent of Santa Claus and unicorns. No one has yet been able to identify where the right to privacy comes from and why we need it. In fact, the right to privacy is destructive of our wellbeing. It prevents us attaining things that really matter, such as safety and security and makes us fear one another.
A strong right to privacy is no more than a request for secrecy - refuge of the guilty, paranoid and misguided, none of whom should be heeded in sorting through the moral priorities of the community.
I'll confine my comment to expression of hope that I'm one of the 'misguided' rather than 'paranoid' or 'guilty'. A right to privacy is explicitly recognised in the Universal Declaration of Human Rights and in other human rights agreements. It features in a range of Australian statute law and is evident in English common law that predates the dreaded "late 20th Century".

People may well want to live without improper interference - for example to be protected from peeping toms - and that desire does not signal that they are looking for the refuge of "the guilty, paranoid and misguided". As I commented to a journalist this morning, the release concides with payments by News in the UK over the egregious abuses that resulted in the Leveson report.

It also coincides with the third reading of the Summary Offences (Filming Offences) Amendment Bill 2012 in South Australia, which among other things deals with -
  • filming of (a) another person in a state of undress in circumstances in which a reasonable person would expect to be afforded privacy; or (b) another person engaged in a private act in circumstances in which a reasonable person would expect to be afforded privacy; or(c) another person's private region in circumstances in which a reasonable person would not expect that the person's private region might be filmed;
  • distribution of an invasive image, ie a moving or still image of a person (a) engaged in a private act [ie a sexual act of a kind not ordinarily done in public; or using a toilet]; or (b) in a state of undress such that the person's bare genital or anal region is visible
As noted in past conference papers, there are no indications that Prof Bagaric has published all of his personal financial information online, walked naked down Collins Street at rush hour or invited the world into every part of his private life.

Perhaps he too values aspects of privacy, albeit not living in that "moral fog" and not being a member of the middle class "with nothing else to worry about".

We need to be careful in making sense of polemic. Privacy isn't an absolute but nor is it trivial, never appropriate, necessarily a shield for criminals or "an middle-class invention" by people who believe in unicorns or santa and have nothing else to worry about.

07 February 2013


One of the more repellent forms of identity crime is rebirthing, ie appropriating the identity of a dead baby or older child. It is a practice that occasionally appears in law reports concerning offences such as production and use by criminals of illicit passports, driver registration documents and other signifiers of identity. A criminal for example assumes the identity of the dead minor and builds on the genuine birth certificate through fraudulent acquisition from a passport office of a genuine passport.

In the UK there is an emerging furore over acknowledgment that police executives had authorised undercover officers to "steal the identities of around 80 dead children".

The Guardian has revealed that
police infiltrating protest groups have for three decades adopted the identities of dead children, without informing or consulting their parents. 
Two undercover officers have provided a detailed account of how they and others used the identities of dead children. 
Keith Vaz, chair of the home affairs select committee has said he is "shocked" at the "gruesome" practice. 
"The committee will hear from those who have been involved in undercover operations as well as their victims," he said. "I have asked the deputy assistant commissioner Pat Gallan to deal with the issues that have arisen." ...
Lord Macdonald, the former director of public prosecutions, has called for a public inquiry into undercover policing following the revelations. Macdonald said the police appeared to have "completely lost their moral compass", suggested some units had "gone rogue" and said the "drip, drip, drip" of "seedy and corrosive" stories threatened to undermine public confidence. An inquiry was needed to ensure such tactics were still not being used, he said.
The Guardian has
established how police officers were equipped with fabricated identity records, such as driving licences and national insurance numbers, in the name of their chosen dead child. They also visited the family home of the dead child to familiarise themselves with the surroundings and conducted research into other family members. ... The force said that the practice of using the identities of dead children is not currently authorised. 
The operation is known to have been orchestrated by the Special Demonstration Squad, a secretive Met unit disbanded in 2008. Dozens of SDS officers are believed to have searched through birth and death certificates to find a child who had died young and would be a suitable match for their alias. 
The officers then adopted the entire identity of the child as if the child had never died. One police officer has said the process was like "resurrecting" a dead person's identity. 
The disclosure comes after two years of revelations concerning undercover police officers having sexual relationships with women they are spying on. Eleven women are currently bringing legal action against the Met for damages.  


The Australian Crime Commission, going for headlines by tacking a soft target, has released a 43 page report [PDF] on Organised Crime and Drugs in Sport: New Generation Performance and Image Enhancing Drugs and Organised Criminal Involvement in their use in Professional Sport.

Highlights from the report - which like past ACC publications seem to be designed for headlines rather than analysis - are as follows.
The Performance and Image Enhancing Drugs (PIED) Market 
The PIEDs market in Australia is large and diverse, with a wide range of substances being used by a broad cross-section of the community. 
PIEDs previously considered to only be available to elite athletes and used in sophisticated sports doping programs due to the expense and complexity of their administration, are now widely available. A highly profitable and organised market has been established around the sourcing and supply of new generation PIEDs. 
The growth hormone releasing peptide (herein referred to as ‘peptides’), hormone and anabolic steroid markets are assessed by the ACC to be one and the same, with individuals trafficking anabolic steroids also distributing peptides and hormones. 
The Role of Organized Crime 
Organised criminal identities and groups are active in the trafficking of PIEDs that are being used by elite athletes in Australia. Organised crime groups are taking advantage of the current legislative and regulatory situation whereby persons and entities who supply certain substances to athletes which are prohibited under the WADA Code do not commit a crime in Australian jurisdictions. however, athletes who use the substances face substantial sporting bans. This is a significant legislative and regulatory vulnerability. 
Professional sport in Australia is highly vulnerable to organised criminal infiltration through legitimate business relationships with sports franchises and other associations. This is facilitated by a lack of appropriate levels of due diligence by sporting clubs and sports governing bodies when entering into business arrangements. 
There is also increasing evidence of personal relationships of concern between professional athletes and organised criminal identities and groups. 
The ACC has identified widespread use of peptides and hormones by professional athletes in Australia. Given that many of these substances are prohibited for use by athletes by WADA, athletes who use these substances have potentially committed anti-doping rule violations. 
While intelligence confirms the use of peptides in major sporting codes, it further suggests that individuals in a range of other codes may also be using peptides. 
Multiple players across some sporting codes and specific clubs within those codes are suspected of currently using or having previously used peptides, which could constitute an anti-doping rule violation. The level of suspected use of peptides varies between some sporting codes, however officials from a club have been identified as administering, via injections and intravenous drips, a variety of substances, possibly including peptides. Moreover, the substances were administered at levels which were possibly in breach of WADA anti-doping rules. 
The use of peptides and hormones is linked to a culture in some professional sports in Australia of administering untested and experimental substances to athletes in the hope they will provide an advantage in the highly competitive world of professional sport. In some instances, the substances are not yet approved for human use. 
In addition to elite athletes using peptides and hormones, these substances are also being used by sub-elite athletes competing at various levels of competition, for example at the state and club level. Illicit drug use by professional athletes is more prevalent than is reflected in official sports drug testing program statistics, and there is evidence that some professional athletes are exploiting loopholes in illicit drug testing programs. 
The Role of Sports Scientists, Coaches and other Facilitators 
Some coaches, sports scientists and support staff of elite athletes have orchestrated and/ or condoned the use of prohibited substances and/or methods of administration. 
Sports scientists are now influential in professional sport in Australia, with some of these individuals prepared to administer substances to elite athletes which are untested or not yet approved for human use. 
In many Australian sporting codes, sports scientists have gained increasing influence over decision making within the clubs. Some sports scientists and doctors are experimenting on professional sportspersons in an effort to determine if particular substances can improve performance without being detected. 
Complicit medical practitioners are a key conduit through which peptides and hormones are being supplied to athletes and other individuals on prescription. In some cases, medical practitioners who are prescribing peptides, hormones and other PIEDs are engaging in lax, fraudulent and unethical prescribing practices, such as prescribing controlled drugs in false names. 
Some anti-ageing clinics have been identified as a key source of supply of pharmaceutical grade WADA prohibited PIEDs to athletes, in some cases without prescription.
Overall the report is disappointing but sure to be embraced by the mass media in Australia. There is anecdote rather than substantive analysis, few statistics, little guidance for serious readers about prevalence and incidence and seriousness.

In contrast to some sports fans, publicists and administrators (who like Captain Renault in Casablanca are shocked, shocked to discover that there is misbehaviour) I have no reason to doubt that some athletes - especially those in particular sports - are using a range of performance enhancers. There is enough case law to demonstrate that there is consumption. We should however expect more bite from the ACC is it wants to be taken seriously outside the halls of Parliament House and the Attorney-General's Department or the offices of its associate agency the Australian Federal Policy. The report resembles the much hyped reports on identity crime questioned in entries elsewhere on this blog. Colourful imagery but very few facts.

06 February 2013

Fertility and Gender

'Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen' by Myrisha Lewis (2012) 7 Charleston Law Review 235 identifies inconsistencies in US law governing child support, assisted reproductive technology, sexually transmitted disease, sexual reproduction, and sexual assault.

Lewis comments that
For example, the law compensates victims of the negligent transmission of a sexually transmitted disease, but not male victims of contraceptive fraud, sexual assault, or statutory rape, even though all of these persons were negatively impacted by actions that involved a common inaction. These inconsistent legal treatments are notable because family law makes distinctions between these various contexts on the basis of outdated stereotypes and differing technologies. 
In order to identify and further analyze these inconsistencies, this article is based on a model which succinctly identifies every possible consequence of sex or assisted reproductive technology. The article follows the layout of the model and systematically identifies and compares the legal contexts which should not, but do indeed, receive inconsistent treatment. Second, after identifying these areas of inconsistent treatment, the article presents several model statutes that will harmonize the legal treatment of semen in situations such as embryo disposition, involuntary reproduction, and childbirth as a result of artificial insemination. As an initial matter, these statutes are based on the concepts of fairness and equal treatment of a biological product no matter the context. Additionally, the article acknowledges that uniformity is a concept that is often regarded as an important goal of federal and state law. After this recognition, the article’s model statutes build upon this concept of uniformity to mandate uniformity within family law.
'“Free as in sexist?” Free culture and the gender gap' by Joseph Reagle in (2013) 18(1) First Monday comments that
Despite the values of freedom and openness, the free culture movement’s gender balance is as skewed (or more so) as that of the computing culture from which it arose. Based on the collection and analysis of discourse on gender and sexism within this movement over a six–year period. I suggest three possible causes: (a) some geek identities can be narrow and unappealing; (b) open communities are especially susceptible to difficult people; and, (c) the ideas of freedom and openness can be used to dismiss concerns and rationalize the gender gap as a matter of preference and choice.
He concludes
While I’ve noted issues at Wikipedia and Ubuntu — two communities I follow most closely — these communities are cognizant of the need to be welcoming and supportive. Within the free culture movement each is relatively progressive: Wikipedia has numerous good–faith norms and Ubuntu has a code of conduct; both communities have fora and activities for discussing concerns and furthering diverse participation. Yet some argue that to focus on gender is beside the point. Kat Walsh, longtime Wikipedian and Wikimedia Foundation board member, wrote that we should be careful of generalizations and instead focus on behavior and culture:
I think the disproportionate lack of women in the community isn’t about gender so much as it is about a culture that rewards certain traits and discourages others. And we’re not getting people who don’t have those other traits, male or female; more of the people who do fit the current culture are male. But the focus should be on becoming more open and diverse in general — becoming more inclusive to everyone, which will naturally bring in more women (Walsh, 2011).
However, while Walsh’s goal is laudable, the language of being “more open and diverse in general” is problematic. Seemingly, there is no “in general” yet when it comes to notions such as “geekiness”, “openness” and “freedom”. These are notions with historical associations and structural dynamics that informally but significantly alienate some participants, especially women. The geek identity, as traditionally constructed, and discursive style can be unappealing, open communities are especially susceptible to difficult people (which can be especially alienating to women), and the ideas of freedom and openness can be used to dismiss concerns and rationalize the gender gap as a matter of preference and choice. Hence, I believe gender needs to be an explicit part of any intervention. The notion of what it means to be a geek should continue to be challenged and experimented with and the community must be cognizant of the challenges of openness and not permit “freedom” to be used as a means to excuse problematic behavior. While the present work is limited in its reliance upon public discourse to identify these informal problems, further research on the experiences, failures, and successes of related interventions is merited.

05 February 2013


In Liberal Party of Australia (Western Australia Division) Inc v City of Armadale [2013] WASC 27 the Supreme Court of Western Australia has granted an interlocutory injunction against the City of Armadale in favour of the Western Australian Division of the Liberal Party.

The Party sought to restrain  the city from removing any electoral signage erected or affixed to private properties.

The Court held that the city's policy consideration for prohibiting the display of electoral signage fails to afford sufficient degree of weight to the vital importance of freedom of political communication especially during an election campaign.