31 December 2015

Voter Profiling

'Trends in Voter Surveillance in Western Societies: Privacy Intrusions and Democratic Implications' by Colin J Bennett in (2015) 13(3/4) Surveillance and Society surveys
the various voter surveillance practices recently observed in the United States, assesses the extent to which they have been adopted in other democratic countries, and discusses the broad implications for privacy and democracy. Four broad trends are discussed: the move from voter management databases to integrated voter management platforms; the shift from mass-messaging to micro-targeting employing personal data from commercial data brokerage firms; the analysis of social media and the social graph; and the decentralization of data to local campaigns through mobile applications. The de-alignment of the electorate in most Western societies has placed pressures on parties to target voters outside their traditional bases, and to find new, cheaper, and potentially more intrusive, ways to influence their political behavior. This paper builds on previous research to consider the theoretical tensions between concerns for excessive surveillance, and the broad democratic responsibility of parties to mobilize voters and increase political engagement. These issues have been insufficiently studied in the surveillance literature. They are not just confined to the privacy of the individual voter, but relate to broader dynamics in democratic politics.
Bennett states
Surveillance has arguably become routine, normal or “everyday” and reaches into every corner of modern life (Bennett et al. 2014). It is, according to David Lyon, “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered” (Lyon 2001: 2). And surveillance is not simply about large organizations using sophisticated technology; it is also something that individuals increasingly engage in. It is good and bad, top-down and bottom-up, and directed to humans, non-humans and spaces. It is a mode of power and central to the new forms of governance within modern and post-modern societies (Haggerty and Ericson 2006).
High-level conceptualizations about the nature and causes of surveillance help associate current practices with broad and profound structural transformations in contemporary societies (Lyon 2007). But macro- level theorizing only takes us so far in understanding the nature of individual and social risks in particular contexts (Nissenbaum 2009). Thus, surveillance has particular, and somewhat different, effects depending on whether we are consumers, employees, immigrants, suspects, students, patients or any number of other actors. Theorizing surveillance on a grand level tends not to expose the more subtle relations, norms and harms associated with the institutional and informational relations that attend the particular roles that we play and negotiate in our everyday lives. As Haggerty and Samatas remind us: “A global community of scholars has produced excellent case studies of the dynamics and normative implications of different surveillance practices, but run into more difficulty when it tries to make generalizations about surveillance tout court, often because the surveillance dynamics and implications of, say, spy satellites, are wildly different from those of DNA testing” (2010: 3).
Just as the literature speaks of consumer surveillance or employee surveillance, and analyzes the different practices and issues that arise in these different contexts as we play these different roles, so we can speak of “voter surveillance.” In our capacities as participants, non-participants or potential participants in the democratic electoral process, personal data is increasingly captured and processed about us for the purposes of regulating the fair and efficient conduct of elections and also to influence our behaviors and decisions (Bennett 2013a, 2013b). The norms, dynamics, and dilemmas are, and should be, different in this voting context.
Very little has been written in the broader academic literature about voter surveillance. There is a certain amount of important journalistic commentary on the contemporary trends in micro-targeting in the United States (Issenberg 2012), and on how these practices have been imported to Canada (Delacourt 2013). Communication scholars have analyzed the new “tech-driven” politics as part of a larger assessment of changing campaign techniques (Howard 2006; Hendricks and Kaid 2011). And a number of political scientists have tried to evaluate whether or not new media campaigns affect voter engagement and behavior (Lees-Marchment, Stromback and Rudd 2009; Small 2010; Lees-Marchment 2011; Davies and Newman 2012). Very little of this commentary, however, engages with the larger question about how data about voters is being mined and profiled, nor evaluates the individual risks to privacy and the general implications for democratic politics.
This paper is intended to begin to fill that gap and inspire further analysis and research. The first section of the paper draws upon previous research to distill some of the most important trends in political campaigning, which has implications for the capture and processing of personally identifiable data. The paper then analyses how these practices are likely to influence the democratic politics of different states depending on different electoral practices and party systems. It then offers a set of broader theoretical reflections about the implications for democratic practice, drawing upon the recent literature on the complex and paradoxical tensions between surveillance and democracy (Haggerty and Samatas 2010).
He concludes -
It is widely assumed that surveillance and democracy lie at opposite ends of a normative continuum (Haggerty and Samatas 2010: 1). Despite the insistence from Lyon (2001) and others that it should be framed in neutral terms, surveillance still assumes a place in the popular consciousness as a negative force that compromises those freedoms upon which democratic societies are founded, including privacy, and freedom of speech and association. Surveillance seeks to render individual behaviors and preferences transparent in ways that make them conform to pre-existing categories and norms. It inspires conformity, control, and obedience. It discourages the individualism, autonomy, and creativity that democracy requires and thrives upon. As Paul Schwartz remarks, surveillance has “a negative impact on individual self- determination; it makes it difficult to engage in the necessary thinking out loud and deliberation with others upon which choice-making depends (1999: 1701).
The anti-democratic nature of surveillance is reinforced by the prevalence of Orwellian and Kafaesque metaphor and imagery. Various symbols have been used over the years to equate excessive surveillance with the slippery slope to authoritarian repression. That message is continually reinforced by a network of privacy activists that engage in a symbolic politics to create awareness and expand their networks (Bennett 2008: 106-7). We are currently in the middle of a wide-ranging international debate about the appropriate role for security and intelligence services in the wake of the revelations from National Security Agency whistle-blower Edward Snowden. The bewildering range of surveillance programs initiated without appropriate accountability and oversight by the National Security Agency, and its sister organizations in the “Five-Eyes” countries, are generally challenged because of their fundamentally anti-democratic nature (Greenwald 2014).
If it were discovered that the NSA had backdoor access to the kind of voter management databases described above, then similar denunciations would no doubt occur and be justified. Thus, it is not difficult to find arguments that the practices described above are also, fundamentally undemocratic, or even anti- democratic. These tactics might be criticized for their tendency to treat citizens as unthinking consumers, ready to respond with their votes in the same way that they respond with their money. Micro-targeting divides us into niche markets and avoids the hard work of building consensus and national visions. It arguably creates parties and candidates that do not convey a general ideological framework for governance, but a series of carefully chosen, focus-group analyzed, messages to key segments of the electorate in key marginal districts. This messaging need not be internally consistent, nor framed within a larger set of policy ideas. Thus parties only need to mobilize key voters in key places; and if the votes of others are suppressed, then so be it. In her analysis of these trends in Canada, Delacourt (2013: 328) concludes: “Instead of turning consumers into citizens, it has accomplished the reverse. Canadian politics went shopping for votes, and the voters went shopping.” The science of “winning elections” may have the effect of turning people off the political process.
A critical response to voter surveillance, and the consumerization of the political, would contend that the practices surveyed above discourage engagement and deliberation, in favor of the increasing individualization of political space in which we are assumed to have preferences and tastes that only need to be unearthed using the most sophisticated technology to determine what public policies and goods voters “want”: a tax break here; a subsidy there; an improvement to the local school; a clean-up of the neighborhood lake; and so on. Thus the critique of voter surveillance might sit comfortably within a broader critique of neo-liberal governance and of the shrinking public sphere.
The argument is more complex, however. Political parties have a responsibility to mobilize and educate supporters. In so doing, they attempt to promote higher levels of participation and engagement in the political process. Voter surveillance practices have, in part, emerged as a response to the failures of traditional and crude forms of mass messaging through television. Arguably parties can encourage more people to vote and reinforce voters’ agency, if they know more about their beliefs and preferences. There may be some evidence that the 2008 and 2012 presidential campaigns in the United States, the first to be waged with the full range of new media technology to reach voters of all demographic and socio- economic characteristics did, indeed, have a small, but noticeable impact on participation rates and voter engagement, particularly among the younger “millennial generation” (Hendricks and Kaid 2011).
There will continue to be debate about the extent to which the increase in voter turnout in these elections, and among this age group, is attributable to new media and micro-targeting, but the point remains that voter surveillance is not necessarily anti-democratic. At least, the public interest on the other side of the equation is different. The balance is not between the privacy interest and security, nor between privacy and the profit-motive. Instead, we confront a rather different set of interests that need careful consideration and weighing before condemning or regulating the ways that candidates and parties capture data on citizens and use that information to encourage political engagement and participation. Those issues have not been thoroughly analyzed in democratic theory, nor subjected to rigorous empirical examination in different states with different legal requirements and electoral tradition.
At root the contestation of values is reflected in two broad and rich traditions of democratic theory. The first is a liberal vision, which sees the main test of democracy as a representative system, based on majority rule but with established constitutional protections for minority and individual rights. Privacy has tended to be regarded and justified within a broad liberal paradigm (Bennett and Raab 2006) and plays an important role within liberal democratic theory because it: prevents the total politicizing of life; promotes the freedom of association; shields scholarship and science from unnecessary interference by government; permits the use of a secret ballot; restrains improper police conduct such as compulsory self-incrimination and unreasonable searches and seizures; and it serves also to shield institutions, such as the press, that operate to keep government accountable (Westin 1970: 25). So, under this dimension, privacy is protective of individuals and specific organizations from obtrusive invasions that would detrimentally affect their ability to participate in politics or go about daily life.
A second broad tradition sees the test of democracy less in the protection of rights, and more in the participation of a citizenry to take charge of its own affairs. As the liberal democratic tradition has been strained under increasing levels of partisan de-alignment and voter apathy, so scholars have renewed interest in a more “participatory” forms of democratic practice (Pateman 1970). If one creates a more participatory environment, people will be more prepared for the tasks of self-government. Engagement in social and community institutions raises the stock of “social capital” (Putnam 1993), levels of interpersonal trust, and the ability of individuals to translate the “I” into the “we.” As Pateman argues: “individuals learn to participate by participating” (2012: 15).
There may be, however, a less critical response to voter surveillance, which sees the attempt to discover preferences and patterns as a more benign, efficient and legitimate way to reach voters and connect with them about public policy. The conversation on the doorstep, over the phone, or in the social media environment, can therefore be more in tune with what voters perceive and desire. Thus, voter surveillance, like surveillance more generally, is “Janus-faced” (Lyon 2001). It at least requires us to analyze and judge its complex dynamics according to a different set of criteria than those used when we evaluate the security practices of the state, or the profit-driven consumer monitoring by the private sector.

30 December 2015

Heydon RC Recommendations

The recommendations of the Heydon Royal Commission noted here are
R1 Commonwealth and State governments give consideration to adopting a national approach to the registration, deregistration and regulation of employee and employer organisations, with a single regulator overseeing all such organisations throughout Australia. 
R2 State governments give consideration to the recommendations concerning the Fair Work (Registered Organisations) Act 2009 (Cth) with a view to implementing, where appropriate, those recommendations in State legislation governing State-registered organisations. 
R3 All regulatory functions of the General Manager of the Fair Work Commission and the Fair Work Commission insofar as they apply to registered organisations under the Fair Work (Registered Organisations) Act 2009 (Cth) be transferred to a new Registered Organisations Commission. The Registered Organisations Commission should be an independent stand-alone regulator. The structure of the Australian Securities and Investments Commission may provide a useful legislative model. 
R4 The Commonwealth government ensure that the registered organisations regulator is properly resourced to carry out its functions, with a separate budget for which it is accountable. 
R5 Sections 330 and 331 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to allow the registered organisations regulator to make inquiries and conduct investigations as to whether criminal offences contrary to the Fair Work (Registered Organisations) Act 2009 (Cth) have occurred. The meaning of the ‘rules of a reporting unit relating to its finances or financial administration’ be clarified to include any rules concerning officers or employees that may have a direct or indirect effect on the finances or financial administration of a reporting unit. 
R6 The registered organisations regulator have information-gathering and investigative powers similar to those conferred on the Australian Securities and Investments Commission. In particular, the registered organisations regulator be given a general power to inspect the books and records of an organisation for the purpose of ensuring compliance with the Fair Work (Registered Organisations) Act 2009 (Cth). 
R7 Amendments be made to the Fair Work (Registered Organisations) Act 2009 (Cth) to amplify the existing enforcement powers of the registered organisations regulator. In particular: (a) ss 336(1) and 336(2)(a) be amended to clarify that the registered organisations regulator may take action in relation to breaches of rules by persons other than a reporting unit; and (b) the registered organisations regulator have a power to accept an enforceable undertaking. 
R8 Section 154D of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a statutory provision requiring: (a) all members of the committee of management of an organisation or branch, and all officers whose duties relate to the financial management of the organisation or branch, to undertake approved training; and (b) the Secretary of an organisation or branch to ensure that employees of the organisation or branch involved with the finances or financial administration of the organisation or branch complete approved training. The registered organisations regulator’s power to conduct inquiries and investigations should include contraventions of this statutory provision. Contravention by a person of the statutory obligations should entitle the registered organisation regulator to disqualify the person from acting as an officer of an organisation or branch for a period of up to two years. 
R9 Section 141(1)(ca) of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed. A new civil penalty provision be introduced requiring organisations and branches to adopt, in accordance with their rules, policies binding on all officers and employees concerning financial management and accountability. The required policies should include policies concerning financial decision-making, receipting of money, levels of authorisation of expenditure, credit cards, procurement, hospitality and gifts, the establishment, operation and governance of related entities and any other matter prescribed by regulations. Organisations or branches should be required to review their policies every four years and to lodge a copy of their current policies with the registered organisations regulator. 
R10 A new division dealing with financial disclosures by ‘reporting units’ to their members be introduced to Part 3 of Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth) to replace and strengthen existing provisions concerning financial disclosure. The regime would require ‘reporting units’ to lodge audited financial disclosure statements with the registered organisations regulator on discrete topics, including (a) loans, grants and donations by the reporting unit, (b) remuneration of officers and (c) credit card expenditure. Civil penalties should apply to reporting units that fail to comply with their obligations under the regime. Further, civil penalties should also apply to officers who knowingly or recklessly make a false statement in a financial disclosure statement. 
R11 Officers with responsibility for ensuring compliance by a reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth) be subject to civil penalties if they fail to take all reasonable steps to ensure the reporting unit complies with its financial obligations. 
R12 All reporting units be required to appoint a financial compliance officer with responsibility for ensuring compliance by the reporting unit with its financial obligations under the Fair Work (Registered Organisations) Act 2009 (Cth), regulations and reporting guidelines and the reporting unit’s financial policies and rules concerning finances. The financial compliance officer must be separate and independent from the Secretary. The compliance officer be subject to a statutory obligation to report any reasonably suspected breaches to the committee of management. 
R13 Auditors of reporting units be required to be registered with the registered organisations regulator. A person be entitled to be registered if the person is either (a) a registered company auditor or (b) if the registered organisations regulator is satisfied that the person has the required accounting qualifications and is a fit and proper person. The registered organisations regulator be empowered to suspend or cancel registration if satisfied that the person is (a) not a fit and proper person or (b) has failed to comply with the duties of an auditor under the Fair Work (Registered Organisations) Act 2009 (Cth). 
R14 In order to improve auditor independence: (a) The definition of ‘excluded auditor’ be expanded to include a broad class of individuals who may lack independence including any person in a ‘conflict of interest situation’. (b) The auditor rotation requirements of the Corporations Act 2001 (Cth) be applied to auditors of all reporting units. 
R15 The existing civil penalty provisions for contraventions by auditors be retained. However, the maximum penalty for an individual be increased from 60 penalty units to 200 penalty units, with the maximum penalty for a body corporate being 1,000 penalty units. 
R16 A new civil penalty provision be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) requiring organisations and branches to make and keep minutes recording the proceedings and resolutions of committee of management meetings. Documents and papers that are necessary to refer to in order to understand the effect of the minutes also be kept. The documents be retained for a minimum of 7 years. The minutes and associated documents be available upon request by members of the organisation free of charge. 
R17 The obligation to keep financial records in s 252 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to be made a civil penalty provision. 
R18 The categories of persons who can make a protected disclosure under s 337A(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be expanded to include: (a) a former officer, employee or member of an organisation or branch; and (b) a person contracting for the supply of goods or services, or otherwise dealing with an organisation or branch of an organisation (or an officer or employee of an organisation or branch on behalf of the organisation or branch); and (c) an officer of employee of a person mentioned in (b). 
R19 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require the regulatory authorities entitled to receive a protected disclosure to investigate the disclosure within a specified period. 
R20 Section 337C of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a provision in similar terms to s 19 of the Public Interest Disclosure Act 2013 (Cth) prohibiting reprisal action against whistleblowers. This would lead to an increase in the existing maximum penalty for reprisal to two years’ imprisonment, or a fine of 120 penalty units, or both. 
R21 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended so that a person convicted of an offence against s 337C is automatically disqualified from holding office in an organisation or branch. 
R22 Provisions similar to ss 15 and 16 of the Public Interest Disclosure Act 2013 (Cth) be enacted to enable a whistleblower who is the victim of reprisal action to obtain a mandatory injunction, an apology or an order of reinstatement to employment. 
R23 Section 190 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to prohibit an organisation or branch using, or allowing to be used, its property or resources to help a candidate in an election for office in any registered organisation or branch. This recommendation is reflected in the model legislative provisions in Appendix 1 of Volume 5 of the Report. 
R24 No recommendation is made to repeal ss 182(2), 183–186 of the Fair Work (Registered Organisations) Act 2009 (Cth) at this time. On the assumption that those sections remain, that Act be amended to require an organisation or branch that has an exemption under s 186 to lodge a report with the registered organisations regulator after the completion of an election conducted pursuant to the exemption. The report should include details about how the election was conducted, whether any complaints were received and how those complaints have been addressed. 
R25 The definition of ‘office’ in s 9 of Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include, in addition: (a) an office of financial compliance officer of the organisation or branch; (b) an office of a person who makes, or participates in making, decisions that affect the whole or a substantial part, of the organisation or branch; (c) an office of a person who has the capacity to affect significantly the financial standing of the organisation or branch; and (d) an office of a person in accordance with whose instructions or wishes the members of the committee of management of the organisation or branch are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the organisation or branch). 
R26 Section 283 of Fair Work (Registered Organisations) Act 2009 (Cth) be repealed to align the statutory duties of officers of registered organisations with their general law duties. 
R27 Section 286(1)(a) of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting the words ‘honestly and reasonably’ before the word ‘believes’. 
R28 The civil penalties for contravention of ss 285-288 of the Fair Work (Registered Organisations) Act 2009 (Cth) be substantially increased. A distinction should be drawn between a ‘serious contravention’ and other contraventions. The maximum penalty for a ‘serious contravention’ should be 1,200 penalty units (currently $216,000) with no penalty for a contravention that is not a ‘serious contravention’. No distinction should be drawn between paid officers and volunteers. ‘Serious contravention’ should be defined as proposed in the Fair Work (Registered Organisations) Amendment Bill 2014 [No 2] (Cth). Consideration should also be given to amending the Corporations Act 2001 (Cth) to specify the maximum penalty for breaches of directors’ duties by reference to 1,200 penalty units rather than the fixed amount of $200,000. 
R29 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by introducing a new s 290A that imposes criminal liability on officers of registered organisations or branches who dishonestly or recklessly breach the statutory duties imposed on them by ss 286-288 of the Fair Work Registered Organisations Act 2009 (Cth). The section be modelled principally on s 184 of the Corporations Act 2001 (Cth), except that the reference in s 184(1) to ‘intentionally dishonest’ should be replaced by ‘dishonest’. The maximum penalty should be the same as that under the Corporations Act 2001 (Cth), being 2,000 penalty units ($360,000) or five years’ imprisonment, or both. 
R30 New s 293A be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) prohibiting an organisation or a branch of an organisation (or any related entity of the organisation or branch including any State registered organisation or branch) from indemnifying, paying or reimbursing an officer of the organisation or branch for any fine or civil penalty imposed on the officer for conduct in connection with the organisation or branch. The provision may usefully be based on ss 199A-199C of the Corporations Act 2001 (Cth). Contravention should be a criminal offence of strict liability. An organisation that contravenes the provision should be subject to a maximum penalty of 500 penalty units ($90,000) and every officer involved in a contravention should be subject to a maximum penalty of 100 penalty units ($18,000). Consideration should be given to reviewing the penalties under ss 199A and 199B of the Corporations Act 2001 (Cth). 
R31 Section 148B of the Fair Work (Registered Organisations) Act 2009 (Cth) be repealed and replaced with a civil penalty regime that, broadly speaking, requires officers of registered organisations and branches of registered organisations to disclose material personal interests that they, or their relatives, have or acquire in relation to the affairs of the organisation or branch. Key features of a suggested regime are set out in the body of the report. Consideration should also be given to increasing the penalty for contravention of s 191 of the Corporations Act 2001 (Cth). 
R32 A provision similar to s 195 of the Corporations Act 2001 (Cth) be introduced to the Fair Work (Registered Organisations) Act 2009 that, in broad terms, prevents officers of an organisation or branch who have a disclosable material interest in a matter from being present during any deliberation, or being involved in any decision, about the matter. The provision should be a civil penalty provision with a maximum penalty of 100 penalty units. 
R33 New provisions, modelled on ss 236-242 of the Corporations Act 2001 (Cth), be introduced to the Fair Work (Registered Organisations) Act 2009 (Cth) allowing a current or former member or current or former officer of a registered organisation or branch of the organisation to apply to a State Supreme Court or the Federal Court for leave to bring, or intervene in, a proceeding on behalf of a registered organisation. 
R34 The provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) (ss 297-303A) concerning breach of orders be amended to include orders made by the Federal Circuit Court. 
R35 The maximum penalty for breach of the provisions in Part 3 of Chapter 9 of the Fair Work (Registered Organisations Act 2009 (Cth) concerning breach of court orders by officers and employees of registered organisations or branches be increased to 1,200 penalty units. 
R36 The definition of ‘prescribed offence’ in s 212 of the Fair Work (Registered Organisations) Act 2009 (Cth) be amended to include an offence under a law of the Commonwealth, a State or Territory, or another country, which is punishable on conviction by a maximum penalty of imprisonment for life or 5 years or more. 
R37 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to make it a criminal offence for a person who is disqualified from holding office in a registered organisation to continue to hold an office. The offence should be an offence of strict liability with a maximum penalty of 100 penalty units or imprisonment for two years, or both. 
R38 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended by inserting a new provision giving the Federal Court jurisdiction, upon the application of the registered organisations regulator, to disqualify a person from holding any office in a registered organisation for a period of time the court considers appropriate. The court should be permitted to make such an order if the person: (a) has, or has been found to have, contravened a civil remedy provision of the Fair Work Act 2009 (Cth), or a civil penalty provision of the Fair Work (Registered Organisations) Act 2009 (Cth) or the Work Health and Safety Act 2011 (Cth); (b) has been found liable for contempt; (c) has been at least twice an officer of a registered organisation that has, or has been found to have, contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth) or has been found liable for contempt while the person was an officer and each time the person failed to take reasonable steps to prevent the contravention or the contempt; (d) has, or has been found to have, at least twice contravened a provision of the Fair Work Act 2009 (Cth) or the Fair Work (Registered Organisations) Act 2009 (Cth); or (e) is otherwise not a fit and proper person to hold office within a registered organisation or branch; and the Court is satisfied that the disqualification is justified. 
R39 The Fair Work (Registered Organisations) Act 2009 (Cth) be amended to require reporting units to lodge an audited financial disclosure statement (see Recommendation 10) providing details in respect of (a) loans, grants and donations (including in-kind donations) made to reporting units in excess of $1,000 and (b) other payments made to reporting units in excess of $10,000. 
R40 Legislation be enacted amending the Fair Work Act 2009 (Cth) to include a provision criminalising the giving or receiving of corrupting benefits in relation to officers of registered organisations, with a maximum term of imprisonment of ten years.  
R41 Legislation be enacted amending the Fair Work Act 2009 (Cth) making it a criminal offence for an employer to provide, offer or promise to provide any payment or benefit to an employee organisation or its officials. Certain legitimate categories of payment should be permitted, subject to strict safeguards. An equivalent criminal offence should apply to any person soliciting, receiving or agreeing to receive a prohibited payment or benefit. A two year maximum term of imprisonment should apply to the commission of these offences. 
R42 Consideration be given, in consultation with the Australian Accounting Standards Board, to amending the Fair Work (Registered Organisations) Act 2009 (Cth) to require reporting units to prepare consolidated financial statements, as well as separate financial statements for the reporting unit’s controlled entities. Consideration also be given to repealing s 148C of the Fair Work (Registered Organisations) Act 2009 (Cth). 
R43 The Fair Work Act 2009 (Cth) be amended to prohibit any term of a modern award, enterprise agreement or contract of employment permitting an employer to deduct, or requiring an employee to pay, from an employee’s salary an amount to be paid towards an election fund. 
R44 Provisions be introduced into the Fair Work (Registered Organisations) Act 2009 (Cth) concerning the registration of election funds in relation to elections for office in registered organisations or their branches. In order to be registered, election funds should be required to meet certain minimum governance standards, operate a separate bank account for election donations and expenditures, and report annually in relation to the operation of that account. Unregistered election funds should not be permitted to receive election donations or make electoral expenditures in connection with elections for office in any registered organisation or branch. This recommendation is reflected in model legislative provisions in Appendix 1 to Volume 5 of the Report. 
R45 Legislation, either standalone or amending the Corporations Act 2001 (Cth), be enacted dealing comprehensively with the governance, financial reporting and financial disclosures required by worker entitlement funds. The legislation should provide for registration of worker entitlement funds with the Australian Securities and Investments Commission, and contain a prohibition on any person carrying on or operating an unregistered worker entitlement fund above a certain minimum number of persons. Key recommended features of the legislative scheme are explained at paragraphs 93 and 95 of Volume 5, Chapter 5 of the Report. 
R46 In consequence of the enactment of the legislation recommended by Recommendation 45, Class Order [CO 02/314] not be extended. In further consequence, s 58PB of the Fringe Benefits Tax Assessment Act 1986 (Cth) be repealed and the fringe benefits tax exemption in s 58PA(a) be amended to refer to registered worker entitlement funds. 
R47 Amendments be made to Chapter 7 of the Corporations Act 2001 (Cth), or relevant regulations, requiring specific disclosure by registered organisations of the direct and indirect pecuniary benefits obtained by them in connection with employee insurance products. The detail and mechanism should be a matter of consultation. In broad terms, the provisions should require: (a) a branch of a registered organisation, and an officer of a branch of a registered organisation, (b) that arranges or promotes a particular insurance product providing cover for employees of an employer, or refers an employer to a person who arranges or provides such a product (whether in enterprise bargaining or otherwise), (c) to disclose in writing to the employer in no more than two pages the nature and quantum of all direct and indirect pecuniary benefits that the branch or any related entity receives or expects to receive, or which are available only to the branch’s members, from the issuer of the product, or any arranger or promoter, or any related entity. 
R48 The Fair Work Act 2009 (Cth) be amended to require an organisation that is a bargaining representative to disclose all financial benefits, whether direct or indirect, that would or could reasonably be expected to be derived by the organisation, an officer of the organisation or a related entity as a direct or indirect consequence of the operation of the terms of a proposed enterprise agreement. A short, simple and clear disclosure document should be provided to all employees before they vote for an enterprise agreement. 
R49 Section 194 of the Fair Work Act 2009 (Cth) be amended to make unlawful any term of an enterprise agreement requiring or permitting contributions for the benefit of an employee to be made to any fund (other than a superannuation fund) providing for, or for the payment of, employee entitlements, training or welfare unless the fund is: (a) a registered worker entitlement fund (see Recommendation 45); or (b) a registered charity. 
R50 A new civil remedy provision be added to the Fair Work Act 2009 (Cth) prohibiting a person from organising or taking (or threatening to organise or take) any action, other than protected industrial action, with intent to coerce an employer to pay amounts to a particular employee benefit fund, superannuation fund or employee insurance scheme. 
R51 Sections 32C(6), (6A), (6B), (7) and (8) of the Superannuation Guarantee (Administration) Act 1992 (Cth) be repealed, and all other necessary amendments be adopted to ensure all employees have freedom of choice of superannuation fund. 
R52 The Competition and Consumer Act 2010 (Cth) be amended so that the penalties for breaches of ss 45D, 45DB, 45E and 45EA are the same as those that apply to other provisions of Part IV of that Act. 
R53 The Competition and Consumer Act 2010 (Cth) be amended to clarify that to prove the existence of an arrangement or understanding, it is not necessary to establish that there be communication between each of the parties to the arrangement or understanding, merely that they hold the same understanding. 
R54 Sections 45D(1)(b), 45DA(1)(b) and 45DB(1) of the Competition and Consumer Act 2010 (Cth) be amended to provide that those sections are contravened where the conduct is engaged in for the purpose, or would have or be likely to have the effect, of causing the consequence identified in those sections. 
R55 The Competition and Consumer Act 2010 (Cth) be amended to provide that a person in competition with the fourth person referred to in ss 45D or 45DA must not knowingly engage in supply or acquisition of services to or from any third persons referred to in those sections with knowledge of the contravention by the first and second persons without first notifying the Australian Competition and Consumer Commission. Contravention of the provision should be a civil penalty provision. 
R56 The Australian Competition and Consumer Commission give consideration to whether its immunity policy in respect of the cartel provisions could usefully be extended to secondary boycott conduct and conduct indirectly leading to a secondary boycott. 
R57 The building and construction industry regulator have concurrent power with the Australian Competition and Consumer Commission to investigate and enforce secondary boycott conduct, and conduct indirectly leading to a secondary boycott, in contravention of the Competition and Consumer Act 2010 (Cth). 
R58 The Australian Competition and Consumer Commission and the building and construction industry regulator report to the responsible Minister and publish the results of all complaints and investigations made concerning, and all proceedings to enforce, the secondary boycott provisions on an annual basis. 
R59 The Competition and Consumer Act 2010 (Cth) be amended to make explicit that: (a) an enterprise agreement under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding for the purposes of the Competition and Consumer Act 2010 (Cth); and (b) an enterprise agreement that applies to an employer and an employee organisation under the Fair Work Act 2009 (Cth) is a contract, arrangement or understanding that an employer has with the organisation of employees for the purposes of s 45E of the Competition and Consumer Act 2010 (Cth). 
R60 For the purpose of seeking to combat the culture of disregard for the law within the Construction, Forestry, Mining and Energy Union, consideration be given to the enactment of special legislation disqualifying those officers of the Construction, Forestry, Mining and Energy Union that Parliament considers are not fit and proper persons from holding office in any registered organisation or branch for a specified period. 
61 There should continue to be a building and construction industry regulator, separate from the Office of the Fair Work Ombudsman, with the role of investigating and enforcing the Fair Work Act 2009 (Cth) and other relevant industrial laws in connection with building industry participants. 
R62 Legislation be enacted conferring the building and construction industry regulator with compulsory investigatory and information gathering powers equivalent to those possessed by other civil regulators. The powers set out in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) appear appropriate in this regard. 
R63 There should be oversight by the Commonwealth Ombudsman of the powers exercised by the building and construction regulator in the manner provided for in the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth). 
R64 Consideration be given to redrafting the use/derivative use immunity provisions in clauses 102 and 104 of the Building and Construction Industry (Improving Productivity) Bill 2013 (Cth) to provide protections equivalent to those available in relation to the powers exercised by the Australian Securities and Investments Commission. 
R65 The building and construction industry regulator continue to investigate and enforce the Fair Work Act 2009 (Cth) and other existing designated building laws. The power of the building and construction industry regulator to commence and maintain enforcement proceedings should not be constrained according to whether any other proceedings in respect of the same conduct have been settled. Accordingly, ss 73 and 73A of the Fair Work (Building Industry) Act 2012 (Cth) should be repealed. 
R66 The Fair Work Act 2009 (Cth) be amended: (a) to increase the maximum penalties for contraventions of ss 343(1), 348 and 355 (coercion) and ss 417(1) and 421(1) (prohibited industrial action) to 1,000 penalty units for a contravention by a body corporate and 200 penalty units otherwise; and (b) to provide that picketing by employees or employee associations is ‘industrial action’, and to deal specifically with the consequences of industrially motivated pickets. 
R67 The civil penalties for contravention of Part 3-4 of the Fair Work Act 2009 (Cth) be increased. The maximum penalty be increased to 1,000 penalty units (currently $180,000). The maximum penalty for contravention of Part 7 of the Work Health and Safety Act 2011 (Cth) be set at $180,000. Consideration also be given to expressing penalties in the Work Health and Safety Act 2011 (Cth) in terms of penalty units rather than dollar amounts. 
R68 Section 513 of the Fair Work Act 2009 (Cth) be amended to include additional permit qualification matters. The additional permit qualification matters are set out in the model legislative provisions in Appendix 1 to Volume 5 of the Report. 
R69 A new provision be inserted into Fair Work Act 2009 (Cth) which requires permit holders to complete approved right of entry training annually in relation to the rights and responsibilities of permit holder. 
R70 A new provision 512A be inserted into the Fair Work Act 2009 (Cth) which creates an obligation on both a registered organisation and an applicant for a right of entry permit to disclose the permit qualification matters. Significant penalties should be imposed for failing to comply with this section.  
R71 Section 510 of the Fair Work Act 2009 (Cth) be amended so that it requires a right of entry permit to be suspended or revoked by the Fair Work Commission if: (a) an official has failed to complete approved training; or (b) a new permit qualification matter has arisen which means the official is no longer a fit and proper person.  
R72 Section 515 of the Fair Work Act 2009 (Cth) be amended by inserting at the end of subsection (1) the words ‘to a fit and proper person’. 
R73 Section 119 of the Work Health and Safety Act 2011 (Cth) and the equivalent provisions of the equivalent State Acts be repealed and replaced with new ss 119 and 119A which provide that prior written notice of entry is to be provided except where the permit holder has a reasonable concern that (a) there has been or is contravention of the Act and (b) that contravention gives rise to a ‘serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard’. 
R74 The Work Health and Safety Act 2011 (Cth) be amended so as to make it clear that the burden of proving that a permit holder has a suspicion that is reasonable for the purposes of s 117(2) or a concern that is reasonable for the purposes of s 119A lies with the person asserting that fact. 
R75 The Fair Work Act 2009 (Cth) and Work Health and Safety Act 2011 (Cth) and the equivalent State Acts be amended to prohibit the exercise of rights of entry by more than two permit holders of the same organisation on the one workplace at the same time. 
R76 The Fair Work Act 2009 (Cth) be amended so that permit holders exercising rights under s 482 or s 483 of that Act must leave a site within a reasonable time if requested to do so by a Fair Work Inspector or Fair Work Building Industry Inspector who is on the site. Further, the Work Health and Safety Act 2011 (Cth) and equivalent State Acts be amended so that permit holders exercising rights under those Acts must leave a site within a reasonable time if requested to do so by an inspector who is on the site. Consequential amendments be made to: (a) confer powers on Fair Work Inspectors, Fair Work Building Industry Inspectors and inspectors under the Work Health and Safety Act 2011 (Cth) to make the above requests; and (b) create civil penalty offences for failure to comply with such requests. 
R77 The Royal Commissions Act 1902 (Cth) be amended to dispense with the requirement for personal service of a summons or notice to produce in circumstances where: (a) a solicitor accepts service on behalf of the addressee; (b) the addressee agrees to an alternative method of service; or (c) (in relation to a notice to produce only) the addressee has been served with a notice to produce previously by the Royal Commission in question, whether that notice was effected personally or otherwise. 
R78 The Royal Commissions Act 1902 (Cth) be amended to increase the penalties for a failure to comply with a summons to attend, a failure to comply with a notice to produce, a failure to be sworn or answer questions, and a failure or refusal to provide documents to at least a maximum penalty of two years’ imprisonment or a fine of 120 penalty units, or both. 
R79 The provisions relating to the reception and use of surveillance device evidence in the Surveillance Devices Act 2004 (Cth) in relation to Royal Commissions be reviewed.

Heydon Royal Commission

The Prime Minister has announced release of the final report of the controversial Royal Commission into Trade Union Governance and Corruption headed by former High Court Justice Dyson Heydon.

The PM's statement indicates that the report
has found there is a ‘widespread’ and ‘deep-seated’ culture of lawlessness among many union officials. This corrupt and illegal conduct will not stop unless there is immediate and effective Parliamentary intervention, meaningful reform and strong leadership. The Government will re-introduce legislation in the first sitting week of 2016 to re-establish respect for the rule of law in the construction industry. Leadership is required among unions, employer groups and political parties to ensure these important reforms are put in place.
It notes
Lasting approximately 21 months, the Commission hosted 155 days of public hearings, 46 days of private hearings, received evidence from over 500 individual witnesses and was completed on time and under budget.
Unsurprising, given the deeply politicised nature of the RC and its wide ambit the report
has revealed allegations involving multiple examples of bribery, extortion and blackmail in the nation’s construction industry. The report listed 79 recommendations to improve the governance of registered organisations, to improve the management of construction work-sites across the country, and to make unions more transparent and accountable to their members. 
The Government will carefully consider all of the Royal Commission’s recommendations. Today the Government announces that it will re-introduce legislation to re-establish the Australian Building and Construction Commission in the first sitting week of 2016 and will seek to have it passed by both chambers before the end of March. In addition, the Royal Commission has recommended stronger legislative reform to improve transparency and accountability in registered organisations. These recommendations go further than the Government’s Registered Organisations Bill that has been rejected by the Opposition. The Government will therefore introduce additional legislation to further strengthen the Registered Organisation Commission. 
The Royal Commission has also made 93 referrals for proceedings relating to possible breaches of laws. More than half relate to potential criminal prosecutions. Taskforce Heracles - the existing Federal and State Police Taskforce attached to the Royal Commission - will be funded to continue its work investigating referrals and to ensure the very serious criminal allegations that have been identified are dealt with. Equally troubling are the numerous examples of gross mismanagement and unauthorised use of union member funds, grave failures of governance and a dangerous lack of accountability and transparency which has allowed corrupt conduct by union officials to go undetected or ignored. 
A specialised Interim Working Group of regulators will be established to deal with civil referrals made by the Royal Commission. This working group will include the Australian Taxation Office, the Australian Crime Commission, ASIC and the ACCC. 

27 December 2015

MicroAggressions and Trigger Warnings

'Microaggression and Moral Cultures' by Bradley Campbell and Jason Manning in (2014) 13 Comparative Sociology 692-726 comments
Campus activists and others might refer to slights of one’s ethnicity or other cultural characteristics as “microaggressions,” and they might use various forums to publicize them. Here we examine this phenomenon by drawing from Donald Black’s theories of conflict and from cross-cultural studies of conflict and morality. We argue that this behavior resembles other conflict tactics in which the aggrieved actively seek the support of third parties as well as those that focus on oppression. We identify the social conditions associated with each feature, and we discuss how the rise of these conditions has led to large-scale moral change such as the emergence of a victimhood culture that is distinct from the honor cultures and dignity cultures of the past.
They argue
Microaggression complaints have characteristics that put them at odds with both honor and dignity cultures. Honorable people are sensitive to insult, and so they would understand that microaggressions, even if unintentional, are severe offenses that demand a serious response. But honor cultures value unilateral aggression and disparage appeals for help. Public complaints that advertise or even exaggerate one’s own victimization and need for sympathy would be anathema to a person of honor – tantamount to showing that one had no honor at all. Members of a dignity culture, on the other hand, would see no shame in appealing to third parties, but they would not approve of such appeals for minor and merely verbal offenses. Instead they would likely counsel either confronting the offender directly to discuss the issue, or better yet, ignoring the remarks altogether.
A culture of victimhood is one characterized by concern with status and sensitivity to slight combined with a heavy reliance on third parties. People are intolerant of insults, even if unintentional, and react by bringing them to the attention of authorities or to the public at large. Domination is the main form of deviance, and victimization a way of attracting sympathy, so rather than emphasize either their strength or inner worth, the aggrieved emphasize their oppression and social marginalization. This culture shares some characteristics and conditions with the culture of dignity out of which it evolved, and it may even be viewed as a variant of this culture. It emerges in contemporary settings, such as college campuses, that increasingly lack the intimacy and cultural homogeneity that once characterized towns and suburbs, but in which organized authority and public opinion remain as powerful sanctions. Under such conditions complaint to third parties has supplanted both toleration and negotiation. People increasingly demand help from others, and advertise their oppression as evidence that they deserve respect and assistance. Thus we might call this moral culture a culture of victimhood because the moral status of the victim, at its nadir in honor cultures, has risen to new heights.
The culture of victimhood is currently most entrenched on college campuses, where microaggression complaints are most prevalent. Other ways of campaigning for support from third parties and emphasizing one’s own oppression – from protest demonstrations to the invented victimization of hate-crime hoaxes – are prevalent in this setting as well. That victimhood culture is so evident among campus activists might lead the reader to believe this is entirely a phenomenon of the political left, and indeed, the narrative of oppression and victimization is especially congenial to the leftist world-view (Haidt 2012:296; Kling 2013; Smith 2003:82). But insofar as they share a social environment, the same conditions that lead the aggrieved to use a tactic against their adversaries encourage their adversaries to use that tactic as well. For instance, hate crime hoaxes do not all come from the left. In 2007, for example, a Princeton University student who belonged to the Anscombe Society, a socially conservative campus group, scratched and bruised his own face before claiming two men in ski caps beat him because of his political views (Hu 2007). Naturally, whenever victimhood (or honor, or anything else) confers status, all sorts of people will want to claim it. As clinical psychologist David J. Ley notes, the response of those labeled as oppressors is frequently to “assert that they are a victim as well.” Thus, “men criticized as sexist for challenging radical feminism defend themselves as victims of reverse sexism, [and] people criticized as being unsympathetic proclaim their own history of victimization” (Ley 2014). An example of the latter can be seen in an essay in The Princeton Tory by student Tal Fortgang, who, responding to the phrase “check your privilege,” which he says “floats around college campuses,” recounts his own family’s many victimizations – a grandfather who did hard labor in Siberia, a grandmother who survived a death march through Poland, and others shot in an open grave (Fortgang 2014). Examples such as these suggest that, at least in some settings, the culture of dignity has given way to a culture of victimhood
They conclude
If it is true that the phenomenon of microaggression complaints heralds a new stage in the evolution of conflict and social control, we should be aware that changing a moral culture also reshapes social life beyond the realm of conflict. Moral ideas orient one’s entire life. In an honor culture, for example, they affect people’s leisure and self-presentation: Ever concerned with appearing brave and strong, the honorable often gamble, drink heavily, and openly boast about their exploits (Cooney 1998:Chapter 5). Contrast these behaviors with the socialization toward restraint found in dignity cultures, which do not value reckless behavior and abhor boasting in most contexts (Elias [1939] 1982:230–286; Pinker 2011:59–116). The emerging victimhood culture appears to share dignity’s disdain for risk, but it does condone calling attention to oneself as long as one is calling attention to one’s own hardships – to weaknesses rather than strengths and to exploitation rather than exploits. For example, students writing personal statements as part of their applications for colleges and graduate schools often write not of their academic achievements but instead – with the encouragement of the universities – about overcoming adversity such as a parent’s job loss or having to shop at thrift stores (Lieber 2014). And in a setting where people increasingly eschew toleration and publicly air complaints to compel official action, personal discomfort looms large in official policy. For example, consider recent calls for “trigger warnings” in college classes or on course syllabuses to forewarn students they are about to exposed to topics that cause them distress, such as when a guide for faculty at Oberlin College (later withdrawn after faculty complaints) suggested that the novel Things Fall Apart, because it takes place in colonial Nigeria, could “trigger students who have experienced racism, colonialism, religious persecution, violence, suicide, and more” (quoted in Medina 2014). Similarly, at Rutgers University an article in the student newspaper suggested that an appropriate trigger warning for The Great Gatsby would notify students that it depicted suicide, domestic abuse, and graphic violence (Wythe 2014; see also Jarvie 2014).
Another inevitable consequence of cultural change is conflict – in this case, the clash between competing moral systems. As we noted at the beginning of this article, the practice of publicizing microaggressions has attracted controversy and criticism even from within the academic communities that generate it. So too have various social media campaigns and pushes for trigger warnings (e.g., Schmidt 2014). These controversies extend beyond US universities to any place where these techniques of social control are exported. For instance, in 2012 an American-Japanese columnist published an article in The Japan Times complaining that native Japanese frequently subject him to such microaggressions as being surprised by his ability to use chopsticks or speak fluent Japanese (Arudou 2012). The article produced a flood of responses from Americans, Europeans, and Australians who have lived in Japan. Many of these agreed with the author that such microaggressions were a major problem, but others viewed his complaint as a form of deviant behavior in its own right. One disapproving commenter stated that he would “never let [such microaggressions] get to me” (Von Jettmar 2012), while another explains that “When Japanese compliment my chopstick use, I tell them thank you, and then politely let them know that some non-Japanese might not take it as a compli-ment. . . . I’d say this is much more effective than . . . bitterly complaining . . . to other non-Japanese” (Ben 2012).
What we are seeing in these controversies is the clash between dignity and victimhood, much as in earlier times there was a clash between honor and dignity. Looking at those clashes, we know that when contradictory moral ideals exist alongside one another people may be unsure how to act, not confident of whether others will praise or condemn them. Believing his public reputation would otherwise suffer, Alexander Hamilton felt compelled to fight a duel even though he wrote that his “moral and religious principles are strongly opposed to the practice of dueling” (quoted in Seitz 1929:98). Yet after Hamilton was killed the public vilified his opponent Aaron Burr as a murderer and denounced the practice of dueling – certainly not the reaction either man would have expected. Today among the poor in inner cities and in other environments where honor lives on, conflict and confusion about honor and dignity continue. Outsiders who enter such settings might misunderstand the local standards of provocation to their own detriment, while insiders who seek success in mainstream society might find their reaction to slights viewed as a sign of immaturity and low self-control. Interactions between honor-oriented Middle Easterners and dignity-oriented Westerners often run afoul of these differences as well (Aslani et al. 2011). At universities and many other environments within modern America and, increasingly, other Western nations, the clash between dignity and victimhood engenders a similar kind of moral confusion: One person’s standard provokes another’s grievance, acts of social control themselves are treated as deviant, and unintentional offenses abound.
And the conflict will continue. As it does each side will make its case, attracting supporters and winning or losing various battles. But remember that the moral concepts each side invokes are not free-floating ideas; they are reflections of social organization. Microaggression complaints and other specimens of victimhood occur in atomized and diverse settings that are fairly egalitarian except for the presence of strong and stable authority. In these settings behaviors that jeopardize equality or demean minority cultures are rare and those that occur mostly minor, but in this context even minor offenses – or perceived offenses – cause much anguish. And while the authorities and others might be sympathetic, their support is not automatic. Add to this mix modern communication technologies that make it easy to publicize grievances, and the result, as we have seen, is the rise of a victimhood culture. This culture arose because of the rise of social conditions conducive to it, and if it prevails it will be because those conditions have prevailed

26 December 2015


"Estimating The Aboriginal Population In Early Colonial Australia: The Role Of Chickenpox Reconsidered' by Boyd H. Hunter and John Carmody in (2015) 55(2) Australian Economic History Review 112–138 comments
Noel Butlin radically altered the debate about the pre-colonial Aboriginal population when he provided a set of hypothetical demographic scenarios, which nonetheless were both grounded in economic theory or human ecological considerations and broadly consistent with what we know about the historical record. This research builds on Butlin’s legacy by exploring how his scenarios are consistent with both the medical understandings of the infectiousness and mortality of various diseases and the history of settlement. Another contribution from this paper is to highlight the possible role of chickenpox in the Aboriginal depopulation in the early colonial period.
 The authors state
After a prolonged period of coastal exploration of Australia by Europeans and Asians, the substantial process of colonisation was based on a unilateral appropriation of Aboriginal land by Britain in 1770. Though no war was ever declared, the frontier violence started shortly after arrival of the First Fleet and persisted well into the twentieth century. Like any war, declared or otherwise, the conflict led to many deaths on both sides. Nevertheless, the number of Aborigines who were directly killed as a result of such violence is likely to have been dwarfed by the spread of introduced diseases such as smallpox and respiratory diseases.
Many researchers have attempted to estimate the pre-colonial population. One of the first credible systematic estimates of the Aboriginal population was provided by Radcliffe Brown who argued for ‘the original population of Australia having been certainly over 250,000, and quite possibly, or even probably, over 300,000’; furthermore, he deliberately provided conservative estimates because the ‘data are scanty and for the most part unreliable’.
Noel Butlin provided a fundamental reassessment of the size and nature of the Aboriginal economy and population before 1788, with a particular focus on demographic modelling that was informed by some of the key economic features of the Aboriginal economy. Butlin extrapolated numerous detailed demographic scenarios based on extensive detailed knowledge of the early colonial history in the south-east of the continent. He convincingly argued that the early estimates were likely to be substantial under-estimates, and he eventually concluded that the pre-colonial population was between 1 and 1.5 million. Some of Australia’s leading archaeologists, notably John Mulvaney and Peter White, have argued that Butlin’s extrapolation of the circumstances and conditions in the colony of New South Wales was not warranted; nonetheless, they used some of his parameters to argue that the pre-colonial population was more likely to have been between 750,000 and 800,000 Aborigines. Over time these estimates became known as the ‘Mulvaney consensus’ about the best available estimates of Australia’s population before 1788. While most researchers have given considerable credence to such estimates, it is not entirely clear which set of Butlin’s parameters had been used to establish the consensus, except that the assumed rate of depopulation was conservative and that the mortality rates from diseases were relatively low outside the areas that were extensively settled by European colonists before 1850.
Butlin’s analysis was rigorous, yet there is clearly a wide variation in the possible Aboriginal population implied by demographic parameters provided in his research. Furthermore, there is some fundamental and unavoidable uncertainty about the basis of the calculations. Butlin’s Economics of the Dreamtime was subtitled a ‘hypothetical history’ and it is a legitimate exercise to examine the implications of the various assumptions outlined in that analysis. This article argues that it is necessary to specify clearly all of those underlying assumptions to enhance the credibility of the estimates. Particular attention is paid in the following analysis to the transmission of disease and associated mortality rates, but the article also reflects on the role of resource depletion associated with the dispossession that accompanied what was in some ways a military invasion.
This article argues that one disease is usually ignored in the existing calculations of the pre-colonial population, chickenpox. While smallpox probably killed many Aborigines, chickenpox is much more infectious than smallpox and therefore could potentially explain the apparent ease of transmission of the diseases across the less densely populated regions of the Australian continent. Less infectious diseases also have a role to play, especially if they have a high mortality rate. Some diseases can only be picked up by extensive contact with infected people, and hence the effect of such diseases depends on the proximity and exposure to infected people as well as the infectiousness of the disease and mortality rates for those who acquire the disease. That is, the historical progression of relatively dense settlements throughout the continent needs to be taken into account for less infectious diseases with high mortality rates to play a significant role.
The next section documents some of the range of demographic parameters and the possible population trajectories implied by those parameters. It also revisits some salient history that could inform the scenario-building exercise. The following sections explore problematic assumptions for estimating the pre-contact Aboriginal population with a view to motivating why we need to re-estimate the original Australian population. The plausibility of estimates hinges on the extent and timing of the transmission of disease, and the mortality of those diseases in the Indigenous communities at risk. The tension between various assumptions provides a reason to explore the role of chickenpox, which was not considered in Butlin’s simulations. After we provide an argument why that disease should be considered, Butlin’s scenarios are revisited with explicit assumptions about the transmission of disease partially informed by the history of settlement. The last two sections of the article examine the potential insights for the economic history of immediate post-contact period.
By imposing a greater consistency on the assumptions about transmission, infectiousness and mortality of diseases, we will eliminate less plausible hypotheses. Even after implausible hypotheses are eliminated, the pre-contact population can take on range of values, and it is a matter for debate and further research to establish a robust consensus about the most reliable population estimates. One of the important findings of this article is that the chickenpox hypothesis is both consistent with plausible assumptions and provides a relatively straightforward explanation for the ease of transmission of disease that may have killed so many Aborigines in the early days of European settlement.
 They conclude
This paper argues that there is a need for greater transparency and consistency in analyses of the economic history of Indigenous Australia. Most of the existing research on the pre-contact population provides only rather sketchy detail of how estimates are derived. Our analysis demonstrates that these details matter, in that the pre-contact population estimates can vary from 500,000 to 1.2 million. However, by being transparent in the assumptions required to construct the population, it should become apparent to the reader that some estimates are more plausible than others.
It is important that the preferred population estimates are consistent with both the known historical facts and current medical knowledge. Chickenpox is introduced in this paper as one of the possible main causes of Aboriginal mortality in this period because it is highly infectious and hence is plausibly a disease that could facilitate fast transmission of serious illness across the entire continent. The chickenpox scenario is also consistent with the ‘Mulvaney consensus’ about the pre-contact population.
The ‘History Wars’ have made it difficult to talk about the extent of frontier violence and warfare in Australia. The inadequacy of official records and existing evidence means that the issue will continue to be contentious. Notwithstanding, it is important to acknowledge related issues that are potentially significant for historical estimates of the Aboriginal population. This paper uses Butlin’s estimates of the effect of ‘resource loss’ as a proxy for what was, in essence, an (economic) conflict over scarce resources. The primary resources lost were both productive members of, and the land used to sustain, the local tribes. The potential population effect of ‘resource loss’ during the colonial expansion appears to be substantial. Clearly, ‘resource loss’ needs to be taken into account in any estimate of the Australian population in this period.
The estimates provided in this paper can vary substantially from the current consensus of the pre-contact Aboriginal population. The estimates based on the Campbell’s, Invisible Invaders, seem to lead to excessively high values for the population across Australia. Our preferred estimate is exactly equal to the Mulvaney estimate of 800,000 people.
The medieval Franciscan friar, William of Ockham, outlined the principle that the hypothesis with fewest assumptions should be preferred over more complex formulations. In our opinion, the hypothesis that chickenpox was responsible for a substantial numbers of Aboriginal deaths in the early colonial period provides the most straightforward explanation. More importantly, it also has a solid scientific basis in epidemiology. Not only does it provide assumptions that are consistent with what we know of the transmission, infectiousness and mortality of diseases, it does not rely on conspiracy theories. While Ockham’s razor can be used to support the proposition that chickenpox played an important role in the early European settlement, it is clear that other diseases played a role in the later colonial period. Whichever diseases were involved, it is important to ensure that assumptions about the epidemiology and medical knowledge about those diseases are accurate and the population estimates are consistent with the historical record. Ultimately, the research in this paper enhances our confidence in the Mulvaney consensus by allowing us to eliminate implausible scenarios. Of course the precise explanation for the population loss in this period is still open to debate.

Health Rights

'Imagining Global Health with Justice: In Defense of the Right to Health' by Eric Friedman and Lawrence O. Gostin in (2015) 23 Health Care Analysis 308-329 comments
The singular message in global health law is that we must strive to achieve global health with justice — improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health — public health, universal health coverage, and the social determinants of health — while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity.
A new global health treaty grounded in the right to health and aimed at health equity — a Framework Convention on Global Health (FCGH) — stands out for its possibilities in helping to achieve global health with justice. This far-reaching legal instrument would establish minimum standards for universal health coverage and public health measures, with an accompanying national and international financing framework, require a constant focus on health equity, promote Health in All Policies and global governance for health, and advance the principles of good governance, including accountability. While achieving an FCGH is certainly ambitious, it is a struggle worth the efforts of us all. The treaty’s basis in the right to health, which has been agreed to by all governments has powerful potential to form the foundation of global governance for health.
From interpretations of UN treaty bodies to judgments of national courts, the right to health is now sufficiently articulated to serve this role, with the individual’s right to health is best understood as a function of a social, political, and economic environment aimed at equity. However great the political challenge of securing state agreement to the FCGH, it is possible. States have joined other treaties with significant resource requirements and limitations on their sovereignty without significant reciprocal benefits from other states, while important state interests would benefit from the FCGH. And from integrating the FCGH into the existing human rights system to creative forms of compliance and enforcement and strengthened domestic legal and political accountability mechanisms, the treaty stands to improve right to health compliance. The potential for the FCGH to bring the right to health nearer to a universal reality calls for us to embark on the journey towards securing this global treaty.

23 December 2015

Copyright and Freedoms

The Government has released the exposure draft of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth), with public submissions due 12 February next year.

The under-appreciated Australian Law Reform Commission has meanwhile delivered to the Attorney-General its final report for the Inquiry into Commonwealth laws that encroach on traditional rights and freedoms (aka the Freedoms Inquiry). The ALRC Issues Paper was noted here.

The A-G is required to table the report within 15 parliamentary sitting days of receipt; the report then becomes a public document. On occasion he's been somewhat tardy.

The Copyright Amendment Bill is described by the Department of Communications and the Arts as seeking to:
  • streamline and simplify the existing copyright exceptions and limitations for the use of copyright material by the disability sector 
  • simplify the preservation exceptions for copyright material in libraries, archives and prescribed ‘key cultural institutions’ 
  • consolidate and modernise the statutory licences that allow educational institutions to use and pay licence fees for works and broadcasts 
  • allow copyright materials to be incorporated into educational assessments conducted online
  • expand the scope of the “safe harbour” scheme to include online service providers 
  • introduce new standard copyright terms for published and unpublished works and for Crown copyright in original works.
The Department states
The Productivity Commission commenced an inquiry into Australia’s intellectual property arrangements in August 2015 [noted here] and is scheduled to report in August 2016. It is appropriate to proceed with the amendments contained in the Bill before the Commission reports as those amendments simplify the operation of the Act and are likely to be consistent with the recommendations (if any) made by the Commission in relation to limitations and exceptions to copyright
Moving forward with Marrakesh is a good thing. We might wonder what would happen if the Commission's recommendations were contrary to changes that had been made prior to August, assuming that the Government gets the numbers in the Senate. The consultation also follows the response to the Harper Review report noted here.

The draft is explained as follows -
Disability access
The proposed amendments for disability access consolidate the various existing exceptions and limitations in the Act that help to provide access to copyright material for certain authorised organisations and individuals. The draft legislation also proposes two separate standalone exceptions, one for institutions assisting persons with a disability and one for use by individuals (fair dealing).
Definition of ‘person with a disability’
The proposed amendments introduce a consolidated definition of ‘person with a disability’ modelled on the existing s200AB(4) of the Act as a person with a disability that causes the person difficulty in reading, viewing or hearing copyright material in a particular form.
Authorised organisations
The proposed amendments replace the existing statutory licences for institutions that assist persons with a print or intellectual disability with a streamlined single exception that applies to institutions assisting a person with a disability in relation to all copyright material.
The proposed single exception first requires an organisation to seek to purchase material before a copy can be made. The proposed measure clarifies that this occurs on a format-specific basis, not title-specific. In practice, this would mean that copies could be made in a format that provides comfortable access to information even if the particular book requested is already available in a different, but unsuitable, format for the person requesting the copy.
The proposed single exception removes the requirement that certain institutions be declared by the responsible Minister to be an institution assisting persons with a print or intellectual disability, and administrative requirements relating to providing a remuneration notice to the collecting society. The proposed exception does not require notification of copying to a collecting society, but also does not prevent the current arrangements from continuing, should institutions wish to maintain a central register of accessible format copies. This could also help with cross-border transfer of copies for the purposes of the Marrakesh Treaty.
The proposed single exception covers an educational institution (as currently defined) or any other institution which provides assistance to persons with a disability as a principal function or one of its principal functions.
The Department proposes to prepare guidelines in consultation with affected stakeholders that would identify best practice approaches to dealing with accessible copies and other relevant matters relating to the practical application of the amendments.
It asks -
Q 1: Do you think the proposed provisions are sufficiently clear and will operate effectively to meet the objective of ensuring access to accessible format copies of works?
Q 2: Do you prefer the terminology ‘organisation assisting a person with a disability’?
The explanation goes on - 
Fair dealing for disability access
The proposed amendments replace the existing exception in s200AB(4) with a fair dealing exception. The proposed fair dealing exception applies to the same types of copyright material and the same categories of uses. The key change to the proposed exception is that the criteria in s200AB(1) no longer apply, instead fair dealing will apply.
Print Disability Radio Licence Scheme
The Print Disability Radio Licence Scheme provided for under section 47A of the Act states that it is not an infringement for licensees to make a sound recording of certain copyright material including books and plays for broadcasting purposes. The Bill proposes that the copyright aspects of the Licence Scheme will be consolidated into the broader exception for institutions assisting persons with a disability.
The corresponding question is -
Q 3: Will the proposed exception allow providers of print disability radio to continue operating as they currently do?
In dealing with the Copyright Regulations the Department states that it
is separately preparing amendments to Copyright International Protection Regulations to include a positive statement that it is not an infringement of copyright to exchange literary and artistic works across borders for the purposes of compliance with the Marrakesh Treaty. The Department is also preparing amendments to the Copyright (International Protection) Regulations 1969 to ensure authorised users of the disability scheme can circumvent technological protection measures where necessary.  
Regarding Preservation Copying (cheers are heard from librarians and archivists) the  explanation is -
The proposed amendments contained in the Bill simplify and streamline the existing preservation copying provisions to allow libraries, archives and ‘key cultural institutions’ greater flexibility in copying and digitisation of copyright material, whether published or unpublished, to preserve their collections.
The proposed preservation exceptions apply to public libraries and archives, parliamentary libraries and prescribed key cultural institutions. It is envisaged that this will generally include a library or archives that forms part of an educational institution, but that there may be library or archival material held by an educational institution (or another institution such as a museum) that is not accessible to the public either directly or through interlibrary loans. This means that, potentially, the exception would not apply to library or archival material held by an educational (or other type of) institution that is not accessible by the public.
The proposed preservation exceptions contains the following elements: a
a) It harmonises the provisions for libraries, archives and key cultural institutions. For example, libraries and archives will no longer be required to wait for published material to be damaged or deteriorate, or to have been lost or stolen, before making a preservation copy.
b) There will be no limit on the number, version or format of copies that can be made for preservation purposes, consistent with best practice.
c) No specific commercial availability test will be imposed, but the exception does require that the authorised officer is satisfied that a copy of the material cannot be obtained in a version or format that is required for preservation.
d) Digital preservation and research copies will be required to be made available to people at libraries, archives or key cultural institutions, but on a restricted basis so that a person cannot electronically copy the material or communicate it to the public.
These provisions are intended to complement other provisions in the Act relating to use of copyright material in libraries and archives.
The question is -
Q 4: Should the proposed preservation provisions apply to a library or archives that forms part of an educational (or other type of) institution if its collection is not available to the public?
In relation to Educational Measures Statutory Licences
The proposed amendments consolidate and simplify the existing statutory licences for the use of copyright material by the educational sector.
The proposed new statutory licence would provide that copyright is not infringed by the copying and communication of work by educational institutions provided a number of conditions are met:
a) A remuneration notice, given by or on behalf of the body administering an educational institution, to the relevant collecting society, is in force.
b) The copying or communication is carried out solely for the educational purposes of the institution or of another educational institution covered by the remuneration notice.
c) The amount that is copied or communicated does not unreasonably prejudice the legitimate interests of the owner of the copyright of the work.
d) The copying or communication complies with any other terms as are agreed between the body administering the educational institution and the collecting society, or any other determination made by the Copyright Tribunal.
The proposed amendments would make similar provision for broadcasts by education institutions, allowing use of broadcasts provided these conditions were met and that the use complies with any other terms as are agreed between the body administering the educational institution and the collecting society specifically relating to the broadcasting.
The proposed amendments seek to extend the meaning of a broadcast to cover:
a) A communication of the content of a free-to-air broadcast by the broadcaster making the content available online at or after the time of the broadcast.
b) A communication by electronic transmission using the internet of the content of a broadcast at, or at substantially, the same time as the broadcast.
The proposed amendments also consolidate the existing provisions relating to the Part VA and VB statutory licences.
That is reflected in the fifth through questions - 
Q 5: Does the proposed statutory licence appropriately extend the coverage of broadcasts to the types of broadcast content used by educational institutions?
Q 6: Does the Copyright Tribunal have adequate jurisdiction to determine all necessary matters?
Q 7: Will the proposed statutory licence reduce the administrative burden on parties to the licence?
Q 8: Do the proposed transitional provisions adequately protect current arrangements for the life of their term?
Q 9: While the transitional provisions provide that existing notices, agreements and determinations will continue, the new provisions would govern these existing arrangements. Are there any arrangements that the new provisions should not apply to?
In dealing with 'Exam Copying' (perhaps most pertinent for some students regarding online plagiarism checkers such as Urkund) the Department states
The current examination copyright exception in section 200(1)(b) is not broad enough to enable examinations to be conducted online. The proposed amendment will remedy this.
Most importantly for some entities, the Bill deals with Safe harbour  before addressing duration of protection -
The proposed amendments expand the current ‘safe harbour’ provisions in the Act to cover a broader range of entities, including educational institutions and other online services (such as online search engines, bulletin boards and cloud storage services).
The proposed definition of a service provider reflects the definition of a service provider in Article 17.11.29(xi) of the Australia-United States Free Trade Agreement and Article 18.81 of the Trans Pacific Partnership Free Trade Agreement.
Regarding the Term of Protection the Department states -
 Currently, the Copyright Act provides for different copyright terms for published and unpublished works. Where copyright works are unpublished they remain in copyright in perpetuity and so their productive uses may be lost.
The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.
The proposed general term of protection would apply to works made before 1 January 2018 that remain unpublished at that date. The delay in commencement of these provisions would enable a copyright owner of a work made by a deceased author to publish before commencement, which would extend the term of protection under the existing duration provisions. When the term of protection for unpublished works ends, this does not require or cause previously unpublished works to become published. It would still be a decision for the person who has physical possession of the work to decide whether they wish to publish the work.
Unknown authors
The proposed amendments also provide a protection period of 70 years from the year in which a work is ‘made’ (i.e. making plus 70 years) where the identity of the author is ‘generally unknown’ during this 70 year period. This will cover works currently referred to in s34 of the Act as ‘anonymous or pseudonymous’ works. However, if the work is published within 50 years of its making, the proposed amendments provide a protection period of first made public plus 70 years. Where the author becomes known in the relevant protection period, copyright duration would default to the general protection period of life plus 70 years.
Copyright material made or first published by the Crown
It is also proposed to amend section 180 of the Act to provide a set term of copyright for works owned by the Crown of 50 years from the year in which the material is made (i.e. making plus 50 years), whether the material is published or unpublished.
The question is
Q 10: The current proposal only applies to the duration of copyright in works. This could be extended to films and sound recordings. With this in mind, and given that the Act currently does not use the concept of the date of ‘making’ a film or sound recording for the purposes of determining duration, views are sought on the common industry understandings of when a commercial film or sound recording is made.