16 November 2013

Kim Dotcom

'Global Policing and the Case of Kim Dotcom' by Darren Palmer and Ian J Warren in (2013) 2(3) International Journal for Crime, Justice & Social Democracy 115 comments [PDF] that
In early 2012, 76 heavily armed police conducted a raid on a house in Auckland, New Zealand. The targets were Kim Dotcom, a German national with a NZ residency visa, and several colleagues affiliated with Megaupload, an online subscription-based peer-to-peer (P2P) file sharing facility. The alleged offences involved facilitating unlawful file sharing and United States federal criminal copyright violations. Following the raid, several court cases provide valuable insights into emerging ‘global policing’ practices (Bowling and Sheptycki 2012) based on communications between sovereign enforcement agencies. This article uses these cases to explore the growth of ‘extraterritorial’ police powers that operate ‘across borders’ (Nadelmann 1993) as part of several broader transformations of global policing in the digital age.
The authors conclude -
The complexity of Kim Dotcom’s case highlights several technicalities and regulatory gaps associated with the global consumption of digital media (David 2010) and commensurate deficits in the application of due process principles to transnational surveillance, intelligence gathering and law enforcement procedures. Principles of sovereignty that invoke territorial jurisdictional boundaries to constrain extraterritorial policing activity are significantly challenged by global information flows, and related commercial interests that favour enhanced transnational law enforcement capacities. The ability of private corporations and public police to engage in extensive online surveillance of suspect P2P and cloud services (David 2010: 5) has significant implications for notions of individual privacy (Drury 2012). These issues are magnified in transnational criminal investigations where traditional national due process constraints governing state surveillance do not adequately encapsulate informal requests for investigative assistance, which may or may not be formalised through recognised mutual assistance requirements. Extensive transnational flows of criminal intelligence and other surveillance activity through collaborative securitisation measures such as the Echelon/Five Eyes agreement appear to remain beyond critical public or regulatory scrutiny.
However, the cases documented in this paper challenge arguments that transnational policing is totally immune from regulatory control (Anderson 1989; Deflem 2004). In fact, the Dotcom case reveals several contradictions between US and NZ search warrant, information seizure, data transfer and judicial review procedures that are far from being fully ‘harmonised’ or aligned. Chief Justice Winkelmann’s rulings declaring the NZ search warrants to be invalid might not have been able to prevent the initial unlawful transfer or destruction of sensitive personal information about registered users of Megaupload that has been unlawfully conveyed to US law enforcement authorities. However, these rulings allow for the qualified disclosure of this information for Kim Dotcom’s extradition and any related proceedings associated with the US federal indictments. Despite the initially informal nature of the mutual assistance request, its subsequent formalisation and the related court rulings associated with the NZ raid, the seizure of evidence, its cloning and ultimate transfer to the FBI were subject to rigorous judicial scrutiny in line with the local contingencies of NZ criminal and human rights laws. These avenues temper claims about the ‘Americanisation’ of global policing via the regularisation, accommodation and homogenisation of highly selective US law enforcement interests in other nations (Nadelmann 1993).
Dotcom and his associates have been able to fund up to 10,000 hours of legal representation in NZ partly due to the release of $NZ2.7 million in funds from the various asset seizures. This sum does not cover legal advice relating to Megaupload’s Hong Kong or US business activities (Fisher 2013). However, for a growing number of people enmeshed in transnational criminal investigations, such resources are unlikely to be available. Further, the overall costs of deploying resources and the potential for extensive legal challenges associated with transnational criminal investigations are a significant barrier to open and transparent justice, particularly due to the expenses associated with implementing mutual assistance requests, collecting and securely transferring evidence, and ensuring witness testimony can be presented and tested in court proceedings (Flynn and Fitz-Gibbon 2013). By April 2012, legal challenges in the Dotcom case cost NZ taxpayers an estimated $NZ1.12 million, independently of the undisclosed financial costs of resources provided to the investigation by NZ Police and the GCSB. Further estimates suggest these costs are likely to increase to $NZ4 or $NZ5 million by the time of Dotcom’s extradition hearing (Barton 2013b). By contrast, reports suggest that since Megaupload was closed by the US Department of Justice, two major movie studios report increased revenues of between $US1.1 and $US1.9 million from online sales and rental arrangements (Collins 2013). Such figures add weight to the financial arguments supporting the more rigorous transnational enforcement of criminal copyright laws (McCourt and Burkart 2003), even though the main beneficiary is likely to be the private entertainment industry rather than the state.
Case studies such as this are an important means of understanding contemporary global policing developments. Legal case analysis does not replace the need for thick descriptions emanating from ethnographic research (Nadelmann 1993), nor does it seek to re‐cloak global policing developments within narrow and restrictive ‘rule‐of‐law’ principles. Bowling and Sheptycki (2012: 130) caution that global policing should not be understood primarily through the rule-of-law. Rather, the analysis of written law should be seen as a resource to examine ‘rule with law’, by circumscribing global policing practices through law. The Dotcom case indicates tensions between US and NZ policing approaches and legal requirements have significant implications for any transnational prosecutions that reveal an extremely disjointed harmonisation of contemporary global enforcement and mutual assistance arrangements. While judicial review can address overt procedural gaps, and invoke awareness of arguments such as the existence of Baigent’s compensation that might have significant effects in shaping desirable extraterritorial policing activities, they could equally validate and entrench problematic transnational enforcement arrangements in other cases. The cases documented in this paper demonstrate the importance of formal judicial rulings as evidence of ‘rule with law’ that reveal the relationship between external review and legal resistance towards the unchecked collection and distribution of criminal intelligence for transnational law enforcement purposes. These issues remain open to further and ongoing empirical analysis of mutual assistance arrangements, their implementation and their capacity to be subject to various modes of formal independent scrutiny under established sovereign legal processes.
Finally, intellectual property law was developed to protect commercial interests associated with burgeoning nineteenth century print industries (Mazzone 2011). Debate about the suitability of the criminal law in governing various forms of internet activity is ongoing and magnified by the difficulties of applying the logics of criminalisation to regulate any transnational or international behaviour (Findlay 2008). In the online world, competing claims to justice and procedural fairness involve the simultaneous normalisation of contentious surveillance, data mining, locational tracking and other digital assemblage technologies in the contemporary global policing armoury (Haggerty and Ericson 2006). These appear logical measures to combat copyfraud (Mazzone 2011) and other wrongful behaviour associated with digital information flows. However, the borderless nature of cyber culture places users of digital technology under increased surveillance and risk of exposure to complex prosecutions in offshore locations. One particularly disturbing legacy of the Kim Dotcom saga is that data containing the identities and locations of all Megaupload are likely to remain in the possession of US authorities, even though NZ law has later declared this information to have been obtained unlawfully. As such, we remain concerned that the rule‐of‐law must be incorporated as a central element of a broader suite of global policing accountability mechanisms that acknowledges the prospect for meaningful resistance to questionable extraterritorial law enforcement activity not only by individuals such as Dotcom, but also via activist civil libertarian groups and sovereign judicial review mechanisms. The cases documented and analysed above offer a pertinent site for the further examination of these issues, and their potential endorsement and contestation of questionable extraterritorial policing and surveillance arrangements in the contemporary digital age.


'Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law' by Deborah Dinner in (2014) 91(3) Washington University Law Review comments that
In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void, analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 (“PDA”). Feminists’ legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and anti-abortion activists. These points of confluence and departure at once advanced sex equality under the law and also limited its scope.
Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and “neomaternalism.” Feminists used liberal individualist principles of equal treatment and neutrality to challenge sex-role stereotypes under the law. The business lobby used liberal individualist principles of private choice to construct a market libertarian interpretation of sex equality that privatized the costs of reproduction. In opposition to the business lobby, both feminists and anti-abortion activists forged a fragile alliance to advocate the PDA. Both groups made neomaternal arguments that leveraged the social value of motherhood to gain legal entitlements for pregnant workers.
Feminist advocates for the PDA synthesized liberal individualist and neomaternal discourses to pursue the elimination of sex-role stereotypes under the law as well as collective societal responsibility for the costs of reproduction. While the PDA took a significant step toward the realization of this vision, it remains illusory. Our legal culture evolved to embrace not only the valences of liberal individualist and maternalist ideologies that advance sex equality but also those valences that reinforce gender inequality. Market libertarianism continues to privatize the costs of reproduction, while maternalism reinforces the sexual divison of reproductive labor. Ultimately, this Article points to the persistence of tensions in the definition of sex equality and the need for new legal paradigms.

14 November 2013

Surveillance States and transparency

'The Data Surveillance State in the US and Europe' by Joel Reidenberg in Wake Forest Law Review (forthcoming) comments that
 The democracies on both sides of the Atlantic are trying to balance the legitimate needs of the law enforcement and intelligence communities to access online transactional data with the basic rights of citizens to be free from state intrusions on their privacy. From the recent revelations of massive collection of telecommunications data by the US government to the disclosures of the UK tapping transatlantic telecommunications cables, and of the Swedish government’s warrantless wiretap rules, national data surveillance seems to have few boundaries that the law has effectively protected. American law has generally focused on access restraints for government to obtain privately held information, ignored the collection and storage of data, and granted special privileges to national security actors. By contrast, Europe emphasizes rules related to the collection and retention of data and focuses less on due process obstacles for government access, while also giving government easier access for national security. In each system, the elusive linkage between retention and access, the privatization of state surveillance activity, and flawed oversight for national security create extensive transparency of citizen’s data and undermine values of democracy including the presumption of innocence, the state’s monopoly on law enforcement, and the zone of individual freedom. In effect, government data surveillance law in both Europe and the United States has reached a turning point for the future of information privacy online. Three proposals can help to secure privacy that is necessary to preserve democratic values: stricter retention limits must be combined with stronger access controls; government access to personal information must be logged and transparent to citizens; and government officials must be personally liable for over-reaching behavior. ....
US and European democracies have had great difficulty grappling with the border between surveillance and privacy. At present, the technological infrastructure breeds systems of surveillance and the legal infrastructure embeds liberal permissions for access. In the US, the former chairman of a congressional oversight committee was astonished to learn in the first public report that law enforcement made 1.3 million requests for user transaction data during 2012. Globally, in the last three years, the Google Transparency Report shows that data access requests by public authorities have almost doubled. US authorities make the overwhelming majority of these requests, though six European countries are in the top ten. The extraordinarily rapid growth in Europe and the United States in the number of access requests poses a structural challenge to privacy in democracy from three perspectives. First, data retention and access rules cannot be divorced from one another and the standards for linkage are elusive. Second, the apparatus for surveillance shifts the burden and role of public enforcement to private actors as agents. And, third, national security privilege creates a delicate balance for oversight that requires transparency.
Reidenberg concludes
The existence of retained traffic data, the reliance on uncertain access rules, the recourse to an elusive proportionality, the dependence on private actors, and the privileges accorded to national security collectively place privacy and values in democracy at a turning point. In the aggregate, these elements increase the transparency of citizen’s online lives and reduce the sphere of privacy that citizens can enjoy. This transparency is destructive of many fundamental democratic values. 
First, the transparency reverses the presumption of innocence. The presumption is central to the philosophy underlying the warrant requirement in the 4th Amendment and the 5th and 14th Amendment principles that citizens are innocent until proven guilty. In Europe, the presumption of innocence is also a fundamental tenant of the Charter on Fundamental Rights of the European Union: “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Yet, data that is collected and retained without any individualized cause or suspicion by private actors for subsequent access by public authorities contravenes the basic constitutional philosophies. If law generally requires collection and retention, the rationale is that all individuals in the data set are suspect. Similarly, if broad access is afforded to data sets that were created for commercial purposes, the core philosophy is that all individuals in the data set are suspect. These practices transform the presumption of innocence into a presumption of suspicion counter to the core constitutional philosophies.
Second, the forced transparency diffuses the monopoly of the state on law enforcement. Law enforcement, investigation and intelligence activities are blurred when communications service providers must retain and make available client and user data. Function creep assures that this diffusion of resources for law enforcement to the private sector will lead to increasing demands and an expansion of the scope of enforcement activity to encompass private matters and not just public safety and security.
Third, the transparency from private data mining and publicly mandated surveillance (i.e. forced data retention) diminishes the zone of individual freedom. Where data retention is neither sharply limited nor combined with strong, clear access controls, the ability of citizens to make decisions about their personal information and their ability to decide when and how to disclose their thoughts, beliefs and activities are impaired.
Finally, the transparency of personal information through the national security exceptions assures troubling intelligence gathering from inevitable over-reaching. Without a means for effective oversight, the privileges afforded to intelligence operations blur government information gathering into generic, ambient state surveillance. Non-democratic regimes strive for this level of knowledge of its citizenry’s activities. ... 
At this turning point, societies need to better secure privacy than the existing framework allows. Substantive and procedural changes are necessary for the preservation of democratic values. And, accountability needs to be effective.
On the substantive side, stringent collection and storage limitations as well as robust obstacles to state access are all necessary conditions to online privacy. The existing demarcation lines are too unstable. Without clear inviolable, red line boundaries, the resulting transparency of citizens’ activities creates a powerful generic surveillance environment that undermines the policy objectives justifying access to extensive data trails in the first place: the investigation of crime, the protection of public safety and liberty. In short, the coupling of strict retention limitations and clear, firm access controls are essential for the future of citizen’s online privacy. 
In parallel to the substantive coupling of retention limits with strong access controls, new procedural obligations are needed to secure online privacy from state interference. First, the infrastructure of collection and access to personal information must be transparent. For law enforcement, data transparency logs should be obligatory and available to those whose information is processed. In the United States, there is a precedent for such logs. The Fair Credit Reporting Act requires that anyone furnishing a consumer report keep a log of recipients of the consumer report and provide the identity of those recipients to the consumer upon request. This procedure creates a means of oversight for affected consumers that would apply equally, if not more significantly, to the law enforcement context. In the law enforcement context, the risk of surveillance over-reaching is no less important than abusive disclosures of credit report information. For the law enforcement context, furnishers of personal information to law enforcement should be obligated to keep a log of law enforcement access requests and to make that log available to clients whose information was accessed. 
For intelligence gathering, there must similarly be transparency of data access for public security unless transparency presents a clear and present danger for public safety. The determination needs to be made by an authority that is independent of the executive branch. The executive branch should not be in control of the dissemination of access orders. The incentive for selective disclosure to distort the public’s understanding of government behavior is too great if the executive branch controls disclosure of its activities.  
Lastly, democratic societies need true accountability for law enforcement and national security conduct. Individuals who over-reach their authority must face penalties. When a senior government officer admits to deceiving a public oversight body, the failure to sanction the individual sends a powerful message of tolerance for wrongful intrusions into ordinary people’s lives and abusive state action. 
Unless democratic societies act quickly to rebalance data surveillance by states, those societies will lose a fundamental characteristic of democracy - the protection of a key individual liberty against the absolute control of the state.
The comment that "furnishers of personal information to law enforcement should be obligated to keep a log of law enforcement access requests and to make that log available to clients whose information was accessed" is particularly interesting.

13 November 2013

Victorian clerical child abuse report

The Victorian Parliament's Family and Community Development Committee has released Betrayal of Trust [PDF], the report of its Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations. The two volume document precedes reporting by the national royal commission on the same subject.

The report notes that
The 2012 Cummins Inquiry identified concerns regarding the handling of criminal child abuse in religious organisations in Victoria, and recommended that: A formal investigation should be conducted into the processes by which religious organisations respond to the criminal abuse of children by religious personnel within their organisations.
In response to this recommendation and through the Governor in Council, the Victorian Government requested that the joint investigatory Family and Community Development Committee undertake an inquiry into these processes. Members of Parliament from multiple political parties and both Houses of Parliament comprise the Committee.
In establishing this Inquiry, the Government requested the Committee inquire into responses to criminal child abuse by all non-government organisations that interact directly with children. In addition to its primary focus on religious organisations, the Committee has considered recreational, sporting, childcare, education, community and other child-related services and activities operated by non-government organisations. 
It continues that -
In undertaking its Inquiry, the Committee asked some obvious but fundamental questions about the occurrence of criminal child abuse in religious and other nongovernment organisations:
 • what is the extent of criminal child abuse in organisations and how has it been able to occur
• why was it not addressed long ago
• is the abuse to be properly viewed as the activity of a relatively few aberrant individuals for which they alone could be held responsible
• are there others (including the leadership of organisations involved) that contributed through organisational cultures, structures and policies, and that should be held accountable
• what should we do now to secure justice for those who have suffered and continue to do so
• how do we, as a community, protect children in the future? 
The Committee comments that
Evidence and information provided to the Inquiry showed that even today, leaders of some non-government organisations are reluctant to fully acknowledge that they adopted policies that gave first priority to protecting the interests of their organisation. It is beyond dispute that some trusted organisations made a deliberate choice not to follow processes for reporting and responding to allegations of criminal child abuse. There has been a substantial body of credible evidence presented to the Inquiry and ultimately concessions made by senior representatives of religious bodies, including the Catholic Church, that they had taken steps with the direct objective of concealing wrongdoing.
The Committee welcomed the commitment made by many organisations during the course of the Inquiry to actively cooperate with any new schemes that the Victorian Government establishes in response to the Inquiry’s recommendations. The CEO of the Catholic Church’s Truth, Justice and Healing Council, Mr Francis Sullivan, recently stated that the community should ‘judge us on our actions’. It is reasonable for the community to expect that organisations will honour their undertakings.
It goes on to note that
The Committee heard graphic accounts that detailed horrendous and traumatic experiences of victims abused as children in the care of non-government organisations that spanned a period of decades through to more recent times.
Victims provided confronting accounts of their feelings of fear and helplessness when subjected to physical, emotional and sexual abuse by personnel in organisations. In circumstances of sexual abuse, many explained that as children they lacked the intellectual framework to understand their abuse. They spoke of subsequent feelings of guilt and embarrassment, and a belief that they needed to conceal what they felt was a deeply shameful secret.
Children not in the care of their families told of their experiences of criminal abuse in institutions and the feeling of losing their identities. Many absconded only to be returned and subjected to further abuse.
Sexual and other criminal offences committed against children are not a new phenomenon. The Committee challenged the assertion by some non-government organisations that child abuse had been poorly understood in the past:
• When was the commission of a sexual offence upon a child not a matter of great seriousness under our criminal law, against the principles of all of our various religious faiths, and abhorrent to our community?
• When was it not understood that children are vulnerable to physical and sexual abuse and that they need protection?
• How many complaints or established incidents of abuse would be necessary before it was acknowledged that a systemic problem existed within some organisations, and that their structures, processes and cultures required full investigation?
Conduct of this kind has been condemned by society for centuries. It has attracted severe penalties under our criminal law for a long time. Up until 1949 buggery of a child under the age of 14 and rape were offences that carried the death penalty. Expert knowledge of the effects of child abuse has been in the public domain since the 1960s. It is widely recognised that children subjected to criminal abuse in organisations and institutions often experience lifelong impacts that include mental health problems, addiction issues, relationship difficulties, issues with anger and difficulties with life skills, education and employment.
In addition, the consequences of criminal abuse suffered by children in organisations and institutions can be intensified due to the often high moral standing of the perpetrator. More specifically, children abused by a minister of religion or a spiritual leader have been found to develop a sense of alienation from the world. Abuse by a trusted religious figure can destroy a child’s belief that the world is a safe place and can make the world seem chaotic and unstructured. Like most people, victims want the opportunity to feel safe and to belong to their community.
The effects of criminal child abuse in organisations also extend to families. Parents explained to the Inquiry their feelings of profound guilt that they had not protected their child and had been drawn in by the grooming tactics of the perpetrator. Some victims of child abuse blamed their parents for not protecting them. Inquiry participants told the Committee of their families being fragmented and damaged as a consequence of the abuse a family member has experienced.
Some local communities, particularly religious communities, have been ruptured by the responses of organisations to criminal child abuse by their employees and other personnel. Community members spoke of a loss of trust in organisations they had previously held in high regard.
These impacts of the criminal abuse of children in the care of organisations have implications for society more broadly, including significant costs to the community in expenditure on health and education, as well as productivity loss. Adult victims of criminal child abuse by personnel in trusted organisations told the Inquiry they were seeking justice for what they often felt to be the loss of their innocence as a child. They wanted to see consequences for perpetrators—to see them removed from their position in the organisation, reported to police and potentially and validate them by providing an expression of remorse and a meaningful acknowledgement of wrongdoing.
The Committee heard, however, that many victims were not given the basic level of respect they expected and deserved. Organisations often did not assume responsibility for the harm victims had suffered, and sometimes even concealed the truth. Victims spoke of ‘unfinished business’ and resentment resulting from the inadequate response of the organisation to their disclosure of abuse.
Adding to victims’ sense of injustice was their feeling of betrayal by organisations, particularly the Catholic Church. This feeling resulted from the inconsistent approaches by organisations to victims versus offenders—that is, giving inadequate support to victims, while providing pastoral, legal and financial support to offenders. They spoke of unfulfilled promises by leaders in the organisation and the trivialising of their experiences.
The Committee noted that
organisations have been handling criminal child abuse by people employed or associated with them for a long time, and the majority of the evidence from victims to the Inquiry indicated that between the 1950s and 1980s the response of specific organisations to such abuse was seriously inadequate and sometimes non-existent, particularly in religious organisations.
Reflecting on past responses to the criminal abuse of children can provide insights into how organisations have evolved in their systems and processes over time. It also assists in understanding the enduring nature of organisational culture and the extent to which organisations learn from past mistakes.
To better understand their past handling of this problem, the Committee focused particularly on the religious organisations that the majority of evidence and other information received concerned—that is, the Catholic Church in Victoria, the Salvation Army and the Anglican Diocese of Melbourne.
Evidence to the Inquiry revealed that historically these organisations were often motivated by self-interest and the protection of the organisation. This resulted in serious consequences for the safety and protection of children.
In regard to the Catholic Church specifically, the Committee found that rather than being instrumental in exposing the criminal abuse of children and the extent of the problem, senior leaders of the Church:
• trivialised the problem
• contributed to abuse not being disclosed or not being responded to at all prior to the 1990s
• ensured that the Victorian community remained uninformed of the abuse
• ensured that perpetrators were not held accountable, with the tragic result being that children continued to be abused by some religious personnel when it could have been avoided.
Analysis of the Catholic Church’s past handling of this problem shows that as an organisation it had many of the internal features of an organisation at high risk of its personnel perpetrating criminal child abuse. These features include its:
• trusted role in caring for children
• culture and power • complex hierarchy and structure
• teachings and beliefs • processes for responding to allegations—including the failure to report abuse to the police
• response to alleged offenders—including the relocation and movement of offenders and failure to suspend them from their duties.
The Committee found that other organisations, particularly other religious organisations, share many of these features, which have continued to influence the responses of many organisations to allegations of criminal child abuse to the present day. The Committee considered that such features and consequent responses by organisations may help to explain why many victims remain aggrieved. Importantly, the way in which an organisation has handled reports of suspected criminal child abuse is inextricably linked to the desire of victims for justice.
It also comments that -
It is well established that victims of child abuse often delay disclosing their abuse for years or decades and, in some cases, never tell anyone. The Committee heard that many victims of past child abuse by personnel in organisations disclosed their abuse to an organisation and were then directed into an internal process to ‘settle’ their matter. In the mid-1990s, the Catholic Church created two systems for responding to allegations of criminal child abuse, both of which are still currently operating—the Melbourne Response (applicable only to the Catholic Archdiocese of Melbourne) and Towards Healing. In addition, some other religious and non-government organisations have processes in place to respond to similar allegations of past criminal child abuse by their personnel. The Committee acknowledges that some approaches were designed by organisations to be an independent, alternative form of justice for victims, but victims told the Inquiry that they did not view them this way.
The Committee accessed many files relevant to the Anglican Diocese of Melbourne, the Salvation Army and the two systems used by the Catholic Church. It also accessed internal complaint files regarding individuals within some orders and dioceses that form part of the Catholic Church in Victoria.
In its review of the existing internal systems and processes adopted by these religious organisations, the Committee identified the following features:
• They are not truly independent of the organisations.
• They contain no existing recognition of or support for secondary victims of criminal child abuse.
• Their approach to financial compensation often does not provide a clear explanation of the basis on which an organisation makes a financial payment, how the amount awarded is determined and obligations regarding confidentiality.
• They rarely encourage participants in the process to seek independent legal advice before reaching an agreement that might affect their subsequent legal rights.
• They tend to provide generic apologies that do not focus on the specific circumstances of the individual and the role played by both the perpetrator and the organisation in regard to the damage suffered by the victim.
• Only some provide counselling support, and some of those that do tend to provide inadequate counselling for a number of reasons, including limited sessions offered, counselling services not tailored to individual needs or counselling services operated internally by the organisation responsible for the abuse.
• Some demonstrated a reluctance to implement effective disciplinary processes for offenders in their organisation, such as suspending them from their duties, removing their title or their membership with the organisation.
Perhaps unsurprisingly, the Committee identified the following areas for reform:
• Stronger requirements for organisations to take responsibility to protect children in their care including taking reasonable steps to protect them from criminal abuse.
• Improved responses to allegations of criminal child abuse in non-government organisations, including oversight of these responses by an independent body and compulsory reporting to police.
• Reforms to the criminal law to improve the potential for perpetrators and those who conceal their crimes to be prosecuted and punished, and the introduction of grooming as separate offence.
• Reforms to civil laws to make it easier for victims to sue non-government organisations.
• An independent, alternative avenue of justice for those who cannot make a claim through the civil justice system.

VLRC report on birth registration

The Victorian Law Reform Commission's report [PDF] on the Births, Deaths and Marriages Act 1996 (Vic) has been released.

The terms of reference for the review required the Commission to
consider and review aspects of the Births, Deaths and Marriages Act 1996 (Vic). The purpose of this review is to:
• examine the processes for birth registration and obtaining a birth certificate to consider whether they are efficient, effective and accessible to all members of the community, particularly culturally and linguistically diverse (CALD) and Indigenous communities, and the disadvantaged and vulnerable.
• identify practical solutions to problems that may exist in Victorian law and practice with regard to birth registration and obtaining a birth certificate.
The Commission was to have particular regard to:
• whether the need to apply separately for a birth certificate (in addition to registering a birth) creates a barrier to obtaining a birth certificate, and if so, what can be done to remove or minimise this barrier.
• whether specific criteria should apply to section 491 of the Act (which provides for the remission of fees), and if so, what these criteria should be and whether they should be contained in legislation, regulations or a publicly available policy document.
The report states that
Birth registration is a significant life event. The registration of a birth is the first step in the process of formal recognition of an individual by the state. Obtaining a birth certificate is a further step in creating an individual’s civil law identity. A certificate can only be issued once a birth is registered. Without a birth certificate, a person may not be able to take full advantage of their rights as a citizen. These rights include enrolling at school or to vote, obtaining a passport, a Medicare card (as an adult), driver’s licence or tax file number, and accessing various government benefits.
The Births, Deaths and Marriages Registration Act 1996 (Vic) (the Act) and the Births, Deaths and Marriages Registration Regulations 2008 (Vic) (the Regulations) provide the statutory basis for the registration of births in Victoria.
The Act requires that the Registrar be notified of all births occurring in the State of Victoria. In addition to this requirement, other legislation, such as the Child Wellbeing and Safety Act 2005 (Vic), requires notification of a birth for other purposes. The number of births that are not notified to the Registry is not known, but is likely to be very small. In 2009, 99.4 per cent of births occurred in a hospital, birth centre or at home with a midwife in attendance. The CEOs of hospitals and midwives have a legislative obligation to provide notice of the birth to the Registry within 24 hours. There are formal processes in place to ensure they comply with this obligation.
In addition to notification, it is a legal requirement to register the birth of a child born in Victoria. There is no fee to register a birth. When a child is born in a hospital or birth centre, or the birth is attended by a qualified medical practitioner or midwife, parents are provided with a birth registration statement form.
The parents (or other persons as set out in the Act) must register the birth within 60 days. The birth registration statement is in two parts and if the parents wish to obtain a birth certificate they must also complete the relevant section and pay the prescribed fee. At present the fee for a standard birth certificate is $28.60.
The Registrar has the power to remit the whole, or part, of the fee in appropriate cases;  however, there are no publicly available guidelines or criteria that describe what attributes an ‘appropriate’ case should have. The Commission has been informed in consultations and submissions that the fee can cause considerable hardship for some vulnerable groups. Other barriers may also prevent an individual from registering the birth of their child or applying for a birth certificate at the time of registration.
Timely birth registration occurs for the majority of babies born in the Victorian community. However, this is not the case across all sectors of society and barriers to registration appear to disproportionately affect our most vulnerable community members.
The majority of parents apply for a birth certificate for their child at the time of registration. An application for a birth certificate may also be made because a birth certificate has been lost, stolen or damaged, or because a person only has an extract of birth entry.
Individuals may face difficulties later in life if their birth was not registered, or an application for a birth certificate was not made when they were a child. Reasons for the failure to register a birth or apply for a certificate are varied but include a lack of awareness of the requirement to register, a poor understanding of the importance of registration, the cost of obtaining a birth certificate and other issues such as mental illness or family violence concerns.
Disadvantaged background is a common theme for late registration or non-registration of a birth.
Structure of the report
Chapter 1 provides an introduction, background and overview of some of the history of the project as well as birth registration practices in Victoria.
Chapters 2 and 3 examine the law and practice relating to birth notification and birth registration in Victoria. These chapters also look at selected law and practice in other jurisdictions.
Chapter 4 examines the law and practice relating to obtaining a birth certificate. This chapter draws on submissions and consultations to make recommendations for changes to the law in this area.
Chapter 5 discusses the cost of obtaining a birth certificate. This chapter examines the ability of the Registrar to remit a fee for a birth certificate, examines fees for birth certificates in other jurisdictions and makes recommendations for legislative and policy reform in this area.
Chapter 6 explores barriers to registering births and obtaining birth certificates for vulnerable groups. This includes those from Indigenous communities and CALD backgrounds as well as more generally.
Chapter 7 examines the issue of awareness of, and access to, Registry services and recommends how these could be improved.
Chapter 8 is the conclusion of the Report.
The Commission makes the following recommendations
Birth notification
1 The Registrar should request the following information in the birth notification: • details of the father • the Indigenous status of the mother and father • details of the next of kin (if known) • a contact telephone number (mobile or landline). Provision of this information should be optional.
Birth registration
2 The birth registration statement should include a statement that if a person other than the mother wishes to register a birth in a situation where they believe the mother will not, or cannot register the birth, they should contact the Registrar to find out how this can be done, and what information they will need to provide.
3 The Registrar should develop a policy for processing birth registration statements where the applicant is at risk of family violence. This policy should require the Registry to contact the applicant before contacting the alleged perpetrator if there is any indication on a birth registration statement of a risk of family violence.
4 Step 4 of the birth registration statement should be amended to: • include a question about whether the applicant fears that family violence may be an issue if the Registry contacts the alleged perpetrator • clearly outline what information may be sought from the alleged perpetrator and whether it will appear on the birth certificate • note that if potential violence is identified as an issue, the Registry will not include the address of the applicant on the birth certificate, and contact the applicant before contacting the alleged perpetrator.
5 The birth registration statement should clearly outline: • what information will and will not appear on the birth certificate through the demarcation of mandatory and non-mandatory fields • what information is being requested for statistical purposes only.
6 The Registry should consider how the work of the Indigenous Access Project could be expanded, to better facilitate birth registration and access to birth certificates for cross-border communities.
7 The Registrar should have further discussions with the Commonwealth Department of Human Services on data-matching of birth registration information to promote greater compliance with both state and federal legislation.
8 Where the applicant is not an eligible beneficiary, the Registrar should issue an automatic confirmation of registration to the applicant, upon processing a birth registration statement, if no accompanying application for a birth certificate is received. This should occur until such time that it is possible to go online and confirm birth registration. The confirmation should be an uncertified document for the purpose of acknowledging the registration of birth only. There should be no fee payable for a confirmation of registration.
Birth certificates
9 The Registrar should consider improving the presentation of the proof of identity section of its application for a birth certificate. In particular, the application should make it clear to applicants that other options are available if they do not possess a list 1 identity document.
10 The Registrar should broaden the category of people authorised to certify copies of proof of identity documents for the purposes of obtaining a birth certificate, to include those authorised to witness affidavits pursuant to section 123C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
11 The birth registration statement should more clearly state that the standard birth certificate is the only document that can be used for official purposes and this certificate should be the first one referred to in the birth registration statement.
12 The Registrar should : • include more information on the uses of each type of birth certificate on both the birth registration statement and the birth certificate application, • consider whether abridged certificates should be discontinued.
13 The Births, Deaths and Marriages Registration Act 1996 (Vic) should provide that an eligible beneficiary: • is exempt from paying a fee imposed for a standard birth certificate • may not be entitled to the fee exemption if the birth certificate has previously been issued to the applicant. ‘Eligible beneficiary’ should have the same meaning as it has in section 3 of the State Concessions Act 1994 (Vic).
14 The Registrar’s power to grant a fee waiver in ‘appropriate cases’ should be retained, to deal with applicants who do not come within the definition of eligible beneficiary but who have an appropriate reason for seeking a fee waiver. Guidelines should be developed setting out how the Registrar’s discretion to waive fees will be exercised.
15 The guidelines outlining the criteria for the waiver of fees should: • be publicly available • be contained in Registry publications and on the Registry’s website • include information about how an individual can apply to the Registrar for a fee waiver.
16 The Births, Deaths and Marriages Registration Act 1996 (Vic) should be amended to allow for the fee for a birth certificate to be waived in full for a class of people.
17 Information about the Indigenous Access Fund should be readily available to service providers and members of the public.
18 The Registrar should explore the introduction of other payment methods for fees for birth certificates.
Vulnerable groups
19 The Registrar should develop memoranda of understanding with relevant organisations assisting members of the Stolen Generations and other Indigenous people to access their records, which cover both birth certificate applications and registry searches.
20 The Registrar should consider: • moving the information about the translation and interpreter service at the back of the birth registration statement to the front of the form • making information about the requirement to register a birth and how to fill in the birth registration statement available in a range of community languages in brochures and on its website.
Awareness and access
21 The Registrar should make available appropriate and accessible information outlining the birth registration process, the importance of birth registration and how to apply for a birth certificate. The birth registration statement should include a prominent statement about the obligation of a parent to register a child and the benefits of obtaining a birth certificate, including listing the important identity documents which can only be obtained on production of a birth certificate.
22 The Registrar should: • continue to expand its range of forms and education material available online • explore the possibility of offering online registration of births.
23 The Registrar should: • promote greater awareness of the Indigenous Access Team in the Indigenous community • consider providing a phone contact point for service providers assisting members of the public with birth registration documents.
24 The birth registration statement should contain a note indicating that assistance in filling in the form can be provided at a justice service centre, and that the applicant should go to www.bdm.vic.gov.au to find the nearest centre.
25 The Registrar should consider expanding the range of venues where registry applications may be lodged.
26 The Registrar’s general functions, as set out in section 6 of the Births, Deaths and Marriages Registration Act 1996 (Vic), should be amended to include the promotion of public awareness of the importance of birth registration through the conduct of education and information programs.

11 November 2013

Hirt and friends

Last year I noted the article by Jones and Whitaker on 'Anatomy's use of unclaimed bodies: Reasons Against Continued Dependence on an Ethically Dubious Practice'

'August Hirt and "extraordinary opportunities for cadaver delivery" to anatomical institutes in National Socialism: A murderous change in paradigm' by Hans-Joachim Lang in (2013) 195(5) Annals of Anatomy 373 comments that
 German anatomical institutes always had problems obtaining sufficient cadavers for research and training. In the National Socialist (NS) period this changed. Universities could count on "extraordinary opportunities for cadaver delivery." Most frequently tacitly, many bodies were those of victims of NS crimes. Scientists increasingly exploited the exceptional political situation to systematically supplement their institutional collections. Their endeavors to fill the, in their terms, "lamentable gaps" in their collections took on truly bizarre forms. In Austria, Jewish cemeteries were plundered for racial-political expansion of anatomical collections. A change in paradigm was merely the next step: intentional murder for the benefit of NS-oriented science. In December of 1942, anatomists meeting in Tübingen discussed plans for "material acquisition." August Hirt, director of the anatomical institute at the Reichsuniversität in Strasbourg, was to develop guidelines. There was express reference to "Auftrag Beger," which had already been conceived although not yet realized: at the behest of Hirt and the SS-scientific organization, "Ahnenerbe," the anthropologists Bruno Beger and Hans Fleischhacker selected 86 Jewish prisoners in Auschwitz in June of 1943 and deported them to the concentration camp at Struthof near Natzweiler, where they were murdered. The bodies were delivered to the anatomy department in Strasbourg for preparation and used as anatomical specimens. The Reichsuniversität Strasbourg was considered a center of excellence for Nazi ideology. For modern scientists, the elucidation of these criminal acts is not exhausted in the search for an answer to the questions of perpetrator, place, modus operandi or motive. A suitable memorial to the victims must go beyond mere quantification.

Software Rights and Autonomous Cars

'Machine Speech' by Tim Wu in (2013) 161 University of Pennsylvania Law Review 1495 comments that
Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that mimic human expression. When can such communications, called here “algorithmic outputs,” claim First Amendment protection?
Wu argues
The question of “rights for robots,” if once limited to science fiction, has now entered the public debate. In recent years, firms like Verizon and Google have relied on First Amendment defenses against common-law and regulatory claims by arguing that some aspect of an automated process is speech protected by the Constitution. These questions will only grow in importance as computers become involved in more areas of human decisionmaking. A simple approach, favored by some commentators, says that the First Amendment presumptively covers algorithmic output so long as the program seeks to communicate some message or opinion to its audience. But while simplicity is attractive, so is being right. In practice, the approach yields results both absurd and disruptive;3 the example of the car alarm shows why. The modern car alarm is a sophisticated computer program that uses an algorithm to decide when to communicate its opinions, and when it does it seeks to send a particularized message well understood by its audience. It meets all the qualifications stated: yet clearly something is wrong with a standard that grants Constitutional protection to an electronic annoyance device. Something is missing.
The big missing piece is functionality. More specifically, what’s being overlooked is the differential treatment courts should accord communications closely tied to some functional task. A close reading of the relevant cases suggests that courts, in fact, limit coverage in a way that reserves the power of the state to regulate the functional aspects of the communication process, while protecting its expressive aspects. Here, I go further and suggest that the law contains a de facto functionality doctrine that must be central to any consideration of machine speech.
The doctrine operates in two distinct ways. First, courts tend to withhold protection from carrier/conduits—actors who handle, transform, or process information, but whose relationship with speech or information is ultimately functional. Definitive examples are Federal Express or the telephone company, common carriers to whom the law does not grant speech rights. Those who merely carry information from place to place (courier services) generally don’t enjoy First Amendment protection, while those who select a distinct repertoire, like a newspaper or cable operator, do. Similarly, those who provide the facilities for job interviews are not recognized as speakers, nor are the manufacturers of technologies that record or transform information from one form into another—like a typewriter, photocopier, or loudspeaker.
Second, courts do not normally protect tools—works whose use of information is purely functional, such as navigational charts, court filings, or contracts. The reasons are complex, and related to a broader nonprotection of information that by its very communication performs some task. In the words of language philosophers these are “speech acts,” “illocutionary acts,” or “situation-altering utterances.” The broader category includes the communications embodied in criminal commands, commercial paper, nutritional information, and price-fixing conspiracies.
Combined, these two tendencies form a de facto functionality doctrine, which, as we shall see, is central to understanding the First Amendment in the context of algorithmic output (and, thankfully, excludes car alarms from the protections of the Constitution). For one thing, in many cases the fact that an algorithm makes the decisions in software cases is in tension with the requirement of knowing selection or intimate identification. Other times, algorithmic output falls into the category of communication that acts by its very appearance. Warnings, status indications, directions, and similar signals are common outputs for computer software in this category. These outputs act to warn or instruct and are therefore similar analytically to something like a criminal command or conspiracy.
In an area as complex as this, a rule of thumb might be useful. Generally, we can distinguish software that serves as a “speech product” from that which is a “communication tool.” Communication tools fall into the categories just described: they primarily facilitate the communications of another person, or perform some task for the user. In contrast, speech products are technologies like blog posts, tweets, video games, newspapers, and so on, that are viewed as vessels for the ideas of a speaker, or whose content has been consciously curated.
The boundary between one and the other may be imperfect, but it must be drawn somewhere if the First Amendment is to be confined to its primary goal of protecting the expression of ideas, and if we are to prevent its abuse. If a software designer is primarily interested in facilitating some task for the user, he will be unlikely to have the space to communicate his own ideas. At a minimum, his ideas must bend to operations. Thus, the intent is not to communicate ideas, or, as the Supreme Court puts it, “affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”
In what follows, I introduce these ideas more thoroughly and, along the way, consider the speech status of blogging and microblogging software like Twitter, GPS navigation software, search engines, and automated concierges. The importance of these matters cannot be overstated. Too little protection would disserve speakers who have evolved beyond the printed pamphlet. Too much protection would threaten to constitutionalize many areas of commerce and private concern without promoting the values of the First Amendment.
‘Sue My Car Not Me: Products Liability and Accidents Involving Autonomous Vehicles’ by Jeffrey Gurney in (2013) 2 Journal of Law, Technology and Policy 101 argues that
Autonomous vehicles will revolutionize society in the near future. Computers, however, are not perfect, and accidents will occur while the vehicle is in autonomous mode. This Article answers the question of who should be liable when an accident is caused in autonomous mode. This Article addresses the liability of autonomous vehicle by examining products liability through the use of four scenarios: the Distracted Driver; the Diminished Capabilities Driver; the Disabled Driver; and the Attentive Driver. 
Based on those scenarios, this Article suggests that the autonomous technology manufacturer should be liable for accidents caused in autonomous mode because the autonomous vehicle probably caused the accident. Liability should shift back to the “driver” depending on the nature of the driver and the ability of that person to prevent the accident. Thus, this Article argues that an autonomous vehicle manufacturer should be liable for accidents caused in autonomous mode for the Disabled Driver and partially for the Diminished Capabilities Driver and the Distracted Driver. This Article argues the Attentive Driver should be liable for most accidents caused in autonomous vehicle. Currently, products liability does not currently allocate the financial responsibility of an accident to the party that is responsible the accident, and this Article suggests that courts and legislatures need to address tort liability for accidents caused in autonomous mode to ensure that the responsible party bears responsibility for accidents.

10 November 2013

Competition and Class Actions

'Class Actions in England? Efficacy, Autonomy and Proportionality in Collective Redress' by Andrew Higgins and Adrian A. S. Zuckerman examines 
the background to the UK Government’s plans announced this year to introduce opt out class actions in competition cases, the EU Parliament’s opposition to them on autonomy grounds, and the arguments put forward by corporate lobby groups and the academics funded by them against opt out class actions.
The paper argues that far from being a restriction on autonomy, there are strong grounds for requiring mandatory class actions for the determination of common claims and defences. Procedures for determining common issues in the one proceeding are a crucial feature of any effective and proportionate system of collective redress. We sketch some ways of encouraging individual participation in class actions without undermining the benefits of collective action, including more democratic decision making in the management and settlement of class actions. Moreover, private class actions are a necessary complement to action by public regulators, ensuring that the task of securing redress for mass harms is not borne fully by taxpayers, and that victims can still obtain redress where regulation is not available or ineffective.

Cigarette packaging, Gangs and Chutzpah

KPMG - proudly self-characterised as 'the leading advisor in the field of illicit tobacco consumption measurement' - has released a 79 page report on Illicit Tobacco in Australia [PDF]. The document comes with the disclaimer -
This report on illicit tobacco consumption in Australia (“Report") has been prepared by KPMG LLP in accordance with specific terms of reference (“terms of reference") agreed between British American Tobacco Australia, Philip Morris Limited and Imperial Tobacco Australia Limited “the Addressees”, and KPMG LLP.
KPMG LLP has agreed that the Report may be disclosed to any party on the basis set out herein. KPMG LLP wishes all parties to be aware that KPMG LLP's work for the Addressees was performed to meet specific terms of reference agreed between the Addressees and KPMG LLP and that there were particular features determined for the purposes of the engagement. 
From a research ethics perspective it would be interesting to see disclosure of those terms of reference.

The document goes on to state that
British American Tobacco Australia, Imperial Tobacco Australia Limited and Philip Morris Limited have commissioned KPMG LLP to conduct an independent report to estimate the size of the consumption of illicit tobacco in Australia. KPMG LLP had final decisions on all methodologies and messages contained in this report.
The purpose of this report is: 1.To provide an overview of the nature and dynamics of the legal and illicit tobacco markets in Australia, and 2.To provide an independent estimate of the size of the illicit tobacco market in Australia.
This report covers the period from July 2012 to June 2013 (H1 2013). The H2 2013 report will be published in 2014. This H1 2013 report measuring the consumption of illicit tobacco in Australia is the first of two reports that will be published focusing on 2013. KPMG has been appointed to produce bi-annual reports on the illicit trade for the industry in Australia. This report primarily shows the 2013 results based on our methodology. The result for 2013 is also presented on a basis consistent with prior reports in the appendix.
Let's not look too closely at the notion of 'independent'.

KPMG argues that
in the twelve months to the end of June 2013 (LTM H1 2013), the level of illicit consumption grew from 11.8% to 13.3% of total consumption.
If all of this tobacco had been consumed in the legitimate market it would have represented an excise amount payable to Government of AUD1.0bn at current excise rates. The key driver of this growth has been a large increase in the consumption of illicit manufactured cigarettes, primarily in the form of contraband. Counterfeit also appears to have increased. ... the proportion of non-domestic cigarettes has increased from 4.3% of all manufactured cigarettes that were consumed in 2012 to 9.8% in LTM H1 2013. ....
Illicit tobacco consumption
Illicit tobacco is mainly brought into the country illegally from cheaper overseas markets. This tobacco is sold to consumers at lower prices than Australian cigarettes, avoiding Australian tax obligations or is brought into the country in amounts exceeding the allowable personal limit. The Australian Crime Commission believe that organised crime groups perceive tobacco smuggling to be low-risk and high profitability. Tobacco is often smuggled alongside other illegal substances. Penalties for smuggling illicit tobacco have recently been increased, with potential for a jail term of up to ten years.(1)
These are manufactured cigarettes. They are specifically manufactured overseas in countries with large scale tobacco production and sophisticated tobacco manufacturing machinery. Once manufactured they are illegally smuggled into Australia most commonly via ports on large container freight and other channels including airmail and online purchases. These products carry branding without the consent of the trademark owner to imitate popular legitimate tobacco product brands. According to the Tobacco Industry Forum (TIF) they do not adhere to industry production standards, they pose additional serious health risks and are also known as fake cigarettes.
These are any genuine cigarettes that are sold without the payment of applicable excise taxes. They are manufactured legally outside of Australia adhering to local regulations and smuggled into the Australian market. This includes cigarettes which are purchased legally outside Australia but exceed personal import allowances. Contraband cigarettes are legitimately manufactured by the trademark owner but avoid Australian government regulations, quarantine inspections and ingredient controls.
Illicit whites, as discussed in section 6, are also a constituent part of contraband. They are manufactured cigarettes that are not legally available in the local market. These brands are typically not sold legally anywhere,and are often made exclusively for smuggling.
Unbranded tobacco
Unbranded tobacco is sold as finely cut loose leaf tobacco in half kilogram or one kilogram amounts. TIF indicates that it may be grown illicitly without a licence in Australia but is most commonly imported. This product carries no labelling or health warnings and is consumed in RYO form or inserted into empty cigarette tubes and sold in boxes which are available from tobacco retailers. The product is then sold loose in bags or pre-rolled tubes (called Chop Chop). The Australian Crime Commission believes that the majority of unbranded tobacco is imported rather than grown in Australia. It is distributed to retailers in the same way as counterfeit and contraband products.
Australian legal domestic sales volumes gradually declined between 2000 and 2009. The 25% increase in excise duties in April 2010 coincided with a 6.8% decline in legal domestic sales volumes. However, the same period also saw an increase in illicit consumption of tobacco.
And what does that all mean? The BATA media release [PDF] explains -
In BATA’s view, plain packaging, combined with our already high tobacco tax rates, and the previous government’s plan to increase tobacco excise by another 60 per cent over the next four years, could see the illegal tobacco problem skyrocket.
Oh dear! But wait, it gets better, and without even the lightest allusion to public health costs.
British American Tobacco Australia (BATA) spokesperson Scott McIntyre said the future was bright for crime bosses but scary for the government and taxpayers. “Nearly 70 per cent of every dollar sold from a legal pack of cigarettes goes to the government in taxes, which is why tobacco smuggling is such a lucrative venture for gangs as they obviously don’t pay any tax and pocket the profits instead,” Mr McIntyre said.
“You don’t need to be a crime expert to see that increasing the excise rate by 60 per cent over the next few years will see gangsters profiting more than ever while smokers buying legal products are hit in the hip pocket.
“Instead of steep excise hikes, more resources for agencies and greater enforcement of plain packaging laws by the Health Department will see a reduction in illegal tobacco sales, particularly at a local level.
“Dishonest retailers are selling illegal branded cigarette packs imported from Asia and the Middle East, most without health warnings, freely and openly across Australia. They appear to have no fear of getting caught because the plain packaging laws are not being enforced at a retailer level.
“Fines for selling non-compliant product can be over $340,000 per pack, but to date we’re not aware of one retailer who has been fined for selling illegal branded packs.
“A fine that size would shut down most businesses overnight, it wouldn’t take many of them to be fined before most pulled the pin on their illegal activities due to the financial risk.
“The excise system needs to be reviewed. But enforcement needs to be ramped up immediately.”
Mr McIntyre said that while police and other enforcement agencies did a great job, the illegal tobacco problem is so big it needs greater focus and more action on compliance.
“The Australian Crime Commission believe that organised crime groups view tobacco smuggling as low-risk and highly profitable, and that they also use the proceeds to fund other illegal activities. Obviously this needs to stop,” he said.
By undertaking the report, and its own covert operations, BATA is hopeful it can help the government to better identify the illegal tobacco problem.
BATA could of course help the government and taxpayer by abandoning its litigation-by-proxy over the plain paper packaging regime.


The Council of Europe - busily and oh so deliciously badging itself as Europe's "leading human rights organisation" - has issued a media release (DC140(2013)) with the heading Council of Europe ministerial conference calls for effective safeguards against electronic mass surveillance. Quite so.
Belgrade, 08.11.2013 – Ministers responsible for Media and Information Society from the 47 Council of Europe member states have called today for adequate and effective guarantees against abuse concerning the growing technological capabilities for electronic mass surveillance. This abuse “may undermine or even destroy democracy”, they said.
In a political declaration adopted at the conference “Freedom of Expression and Democracy in the Digital Age: Opportunities, rights, responsibilities”, which has been held in Belgrade this week, the ministers recall that any data collection or surveillance for the protection of national security must be done in compliance with human rights requirements, including the European Convention on Human Rights. They also adopted three resolutions mapping out the future work of the Council of Europe in the field of freedom of expression.
The ministers note that freedom of expression and media freedom are threatened today in various parts of Europe, and call on states for political commitment and greater efforts to protect them. With regard to the growth of hate speech in Europe, they underline the need for action both at national and international level.
The ministers strongly condemn physical attacks, intimidation and misuse of power of the State, including unlawful monitoring of communications and other forms of harassment of journalists and other media actors. Failure by authorities to investigate effectively and prosecute the perpetrators fuels a climate of impunity that favours further attacks, they say.
Agreeing to promote Internet freedom, the ministers renew their commitment to do no harm to the Internet and to preserve it as a universal, integral and open space. Unjustified interference in the private life of citizens, they stress, threatens the universality and integrity of the Internet and will adversely affect people’s trust in it.
The ministers propose, among other actions, to:
  • Examine the gathering of electronic communications data on individuals by security agencies; 
  • Prepare guidelines for the protection of journalists and others actors that carry out public watchdog functions; 
  • Complete a guide of rights for Internet users. The draft of this document is now open for consultation with Internet stakeholders.
All, of course, utterly sincere.

The background paper [PDF] features the following comments regarding privacy -
Freedom of expression, privacy and security are conditions, facilitators and guarantee for the exercise of other rights, including freedom of thought, association and assembly in the digital age. If these rights are ineffective or weakened, democratic rights will be undermined and participation in matters of public interest can be compromised. They must therefore be underpinned by the respect of the rule of law. In order to maximise this potential, the Council of Europe might:
a) offer guidance on the concrete meaning and extent of Internet freedom from a human rights perspective, and assess whether or the extent to which freedom of expression is actually respected in the digital age and identify further action needed;
b) elaborate further on the indication contained in the Committee of Ministers recommendation on a new notion of media that regulation affecting freedom of expression is in itself a form of interference and should therefore be subject to the tests of Article 10;
c) work on online privacy, in particular by exploring the rules and conditions for legitimate, human rights compliant access to personal data –both transit and content– and for interception and surveillance;
d) initiate a reflection on human rights aspects of encryption in digital communication, and the conditions for its responsible exercise, as well as the limits and modalities for legitimate interference;
e) explore whether technology is being used to “kettle” users into information-impoverished spaces, limiting choice, diversity and pluralism.