10 April 2015

Firearms and privacy

From the Senate Legal and Constitutional Affairs References Committee report on Ability of Australian law enforcement authorities to eliminate gun-related violence in the community -
Security of data in relation to firearm owners 
Data from the AIC's National Firearm Theft Monitoring Program (NFTMP) showed that over the five years between 1 July 2004 and 30 June 2009, around three-quarters of firearm thefts were from private residential premises, with a mix of targeted and opportunistic incidents recorded. Given the high incidence of thefts from private residential premises, the scarcity of data about firearms was raised as a concern during the course of the inquiry. In particular, submitters and witnesses discussed the accessibility and unlawful use of firearm registries. 
Firearm registries 
The Tasmanian Farmers and Graziers Association questioned the security of the various state and territory firearm registries:
Anecdotally, there is significant evidence to suggest that many of the firearm thefts in Tasmania are targeted—that is, they are targeted for the firearms, because often nothing else is taken. So you have to ask how this intelligence is being gathered by criminals in the first place. It is not difficult to see, when individuals are dealing with their firearms—whether it be submitting a form and requesting a new firearm or even when their firearm licence falls due or when they purchase ammunition—they sign registers which other members of the public have access to. These registers have their names and their addresses. The full details are on there for any subsequent person who signs that register, if they are awake, to take note of who the individual is, where they live and often, depending on what sort of register they are signing, what type of firearms they have. We could simply put a stop to many of these thefts by tightening up the security around these sorts of issues.
The Shooters Union NSW alleged that the NSW firearms database has been accessed unlawfully at times. Detective Chief Superintendent Finch, from the NSW Police, rejected this assertion:
That area has been traversed many times. In fact, the Firearms Registry has conducted a number of investigations in relation to that. There is simply no evidence that there has been any breach of security or improper release of information in terms of their records and, certainly, I am unaware of any evidence to suggest that operational police have done similar. In fact, regarding the article that commenced that, I spoke to the journalist who wrote it. It was an adlibbed story and his editor seemed to think it was a good idea to run with it—and that was the information I had at the time.
The NSW Police gave evidence that while targeted theft was more common in rural communities it was not necessarily linked to organised crime:
Our analysis and our practice has shown recently, particularly, that, when thefts occur, very often the thefts are undertaken by people from within the same communities. We certainly look at and analyse whether there is any more sinister intent—that is, whether groups such as outlaw motor cycles groups have been involved in the thefts or whether they have commissioned those thefts. Again, whilst it would be naive to suggest that has never happened, at this stage there is no conclusive evidence to say that they are involved on any scale.
Shooting clubs and organisations 
Shooting clubs and organisations hold data on their members, including personal information and the types of firearms owned by a member. This data, if accessed by criminal elements, could place members at risk of firearm theft. 
Shooting Australia emphasised the care taken by firearm bodies to protect their information:
Shooting Australia at our level, as I mentioned, has five member bodies. We do not have the details of the 38-odd thousand individuals. The member bodies have that information in different ways. It comes to them from state and club levels. There is a complete understanding by all involved of the need for security of that information and to guard it closely. At the national and state levels, I would suggest that those organisations do not have the details of the numbers and types of firearms but rather have simply who the members are. The details are with the state registries, as Mr Bannister mentioned, and potentially with the clubs that have performed the role of endorsing the particular members' applications et cetera.
The Shooters Union NSW described the security it uses to protect members' personal information, but simultaneously highlighted weaknesses in its security approach by virtue of the dedicated computer being connected to the internet and membership information being emailed to the firearms registry:
CHAIR: Coming back to security of information, quite a few of the submissions that we received talked about the security of data relating to gun ownership, and I imagine that that is a concern that you all would have. One of the submissions referred to a significant breach in South Australia, where the data about who were members of a gun club was released publicly. This person likened it to a shopping list for criminals who wanted to go out and find where they could get some guns and where there were guns in the community. Mr Whelan, what does your club do to guarantee the security of your membership? 
Mr Whelan: Even I do not have access to the membership list. Our secretary, a guy called Daniel Gregg, has it on a dedicated computer that is not linked or connected to anything except when he has to download that and report to the firearms registry. That is done on a spreadsheet annually toreview who has kept their membership valid and who has kept their required number of shoots. 
CHAIR: So that computer is not connected to the internet at all? 
Mr Whelan: No, it is only used to email data to the firearms registry.
Mr Trevor Kenny outlined a specific example in which the South Australian Revolver and Pistol Association Inc. (an "umbrella organisation" with no individual members) came into possession of information contained in a database of pistol shooters comprising the personal information of individuals and the types of firearms in their possession. Mr Kenny explained:
The South Australian Revolver and Pistol Association Inc. secretary...has been the custodian of the database of pistol shooters for many years. Contained in that database is, not only the personal information of the individuals, but also the types of firearms that are in their possession. S.A.R.P.A. is the parent body of most Pistol Clubs here in South Australia and purports to be the body representing the individual clubs. It argues that club members are NOT members of S.A.R.P.A and one must ask, what they are doing with this information in the first place? Obviously the individual clubs and the Firearms Branch of the South Australian Police are appropriately in possession of such delicate information.
The Sporting Shooters' Association of Australia Inc. gave evidence that it would welcome legislation aimed at protecting the security of data:
Interestingly enough, we would actually probably enjoy some additional support in being able to protect our data. There was a case within our own organisation in Western Australia only a few short years ago where an individual took our state association to court to gain access to the membership list and won the case. We resisted it; we lost the case; we could not protect our own data legally.
The National Farmers' Federation questioned the need for further measures and instead suggested that existing privacy laws should be sufficient:
Much of the information that has been described as accessible is personal information, which is already covered by privacy legislation, and so it is relevant to consider how that law could be applied in this space, where it is not currently being used.
The report goes on to state -
The security of gun ownership data was explored in chapter 4. The committee acknowledges the need to guarantee the safety of information about gun ownership to prevent registered owners being targeted for theft. Evidence given during the course of the inquiry indicated that gun and shooting clubs are not currently required to follow any particular rules or standards in relation to the security of their membership records. The committee was alarmed that the main protection afforded gun ownership information by these clubs seemed to be their storage on a computer that is mostly disconnected from the internet. 
The vulnerability of gun ownership records held by gun clubs should be rectified. The committee therefore recommends that the Commonwealth government work with state and territory governments to establish national standards for the security of membership data held by gun clubs. 
The committee recommends that the Commonwealth government, together with state and territory governments, establish national standards for the security of membership data held by gun clubs. ...  
Registration and licensing of firearms 
The committee supports the current requirements for registering and licensing firearms and considers them necessary in preventing firearms from being diverted to the illicit market. However, as part of its inquiry, the committee received evidence that there are weaknesses in the current registration and licensing systems which impact on their effectiveness. The National Firearm Licensing and Registration System (NFLRS), which was implemented following the adoption of the NFA, and the National Police Reference System (NPRS) are the two main systems currently used by police to track firearms. In particular, the NFLRS 'captures a "point-in-time picture" of firearm information held by State and Territory police agencies' own firearm registries'. 
Submitters were generally of the view that the NFLRS has a number of flaws. CrimTrac acknowledged these and advised that the National Firearms Interface (NFI) has been developed to replace the NFLRS. 
The committee welcomes the development of the NFI and understands that it will provide a range of benefits to law enforcement agencies, including the ability to track a firearm over its lifespan. However, the committee is also concerned that the NFI will still rely on information provided by the states and territories. 
The committee refers to the recent Martin Place siege report which stated that 'the information in the new system will only be as good as the information already in the state databases' and included a recommendation that 'State and Territory police agencies, that have not already done so, should as a matter of urgency, audit their firearms data and work to upgrade the consistency and accuracy of their own holdings before transferring it to the NFI'. 
The committee concurs with the recommendation of the Martin Place siege report and supports the suggestion from the NSW Police Force for a national approach for the registration of firearms. It is the committee's view that there needs to be greater consistency in the data provided by state and territory police forces regarding the registration and licensing of firearms. The committee therefore recommends that all jurisdictions update their firearm data holdings and transfer these to the NFI. 
Recommendation 6  The committee recommends that all jurisdictions update their firearm data holdings and ensure the data is transferred to the National Firearms Interface.

Tax Privacy

The Canberra Times, in reporting on policies to shame offenders or merely inform public policy debate by publishing information about corporations that are allegedly gaming the tax system, states that
Tax Commissioner Chris Jordan says publishing taxpayers' personal details would be "unprecedented". 
Treasurer Joe Hockey says "confidentiality of taxpayer information has been a key feature of Australia's taxation system since the 1950s". 
Both are wrong. Both have been stonewalling requests from the Senate economics committee to see the names of companies the Tax Office believes transferred a combined $31.4 billion to the low tax jurisdiction of Singapore in the year to June 2012. But Fairfax Media can reveal that as recently as 1984 the Tax Office routinely published the names of taxpayers and companies it found to be engaged in breaches or evasion. 
"It used to be called 'the honours list' internally," said former Tax Commissioner Trevor Boucher. He stopped the practice in 1985 because of the workload and because of concerns that it exposed taxpayers to "double jeopardy," being both fined as a punishment and then having their punished in the annual report. 
The last list published in 1984 details the name, suburb and occupation of each Australian found to have underpaid a significant amount of tax as well as the amount underpaid and the penalty applied. 
In that year trade mark assistant Jeannie Abbott of Greenwich headed up the alphabetical list of Sydney underpayers and process worker Neim Aki of Yarraville headed up the Melbourne list. 
The names were published only where the penalty tax due exceeded $1750 and after all appeal rights had been exhausted. A separate list in the annual report detailed the taxpayers against whom the Tax Office had secured judgements in the courts. 
Neither list included taxpayers merely suspected of underpaying.


Two perspectives on identity and registration.

The SMH reports that the national government's chief Indigenous adviser, Warren Mundine, wants
a national database of Aboriginal people to resolve "once and for all" the controversial issue of proving Aboriginality. 
The article indicates that the NSW Aboriginal Housing Office
formerly required people to prove their Aboriginality in one of three ways: by being a member of a local Aboriginal land council or registered Aboriginal organisation; obtaining a confirmation letter from one of those organisations; or, if those avenues were not possible, by providing a statutory declaration. The office will no longer accept statutory declarations. 
A Department of Family and Community Services spokeswoman said the policy change was discussed with housing and Indigenous groups and was "consistent with other practices and organisations". However according to the NSW Health website, a statutory declaration and references from two Indigenous community representatives is accepted as proof of Aboriginality in job applications. ...
Mr Mundine said the debate showed the need for a national database of Aboriginal people "that gets away from all the politics". "At the moment there is a ridiculous situation where you do have fraud, you do have petty personal politics involved," he said.
The SBS reports that Mundine
has called for the establishment of a national database of Aboriginal people. Mr Mundine says such a database would help overcome allegations of corruption and fraud. 
"I can walk in and get a passport and have to prove who I am. I'm a citizen of Australia to get that passport," he said. "Why shouldn't we be up for the same scrutiny?" 
He said it would enable Indigenous Australians to prove their identity, which is required to access certain services or perform certain duties. … "And of course on a more practical level, if you're accessing housing, if you're accessing government procurement contracts, or being able to vote at land council meetings, and so on, then it's quite clear you're in or you're out." 
He says a well-researched national database would also make it easier for Indigenous people to find out which First Nations they belong to. ...   
But he says the process and the body established to oversee it must be independent, transparent and run by Indigenous people. 
"Just from the historical approach because our people have been so knocked around and by governments of all political persuasions, of all political levels, that we have a distaste for trusting those type of organisations."
Less contentiously, the South Australian Coroner in reporting on the death of Chloe Valentine has stated
There is no statutory registration system for social workers. In my opinion it is appropriate that there should be. In his submissions the Commissioner for Victims’ Rights suggested that registration could be achieved through the National Registration and Accreditation Scheme which resulted from the Council of Australian Governments agreement in 2008. That may well be an appropriate mechanism for achieving a system of registration for social workers. I intend simply to recommend that the Minister for Child Protection Reform introduce a measure to provide for registration of social workers. The solution suggested by the Commissioner may commend itself to the Minister as a suitable way to implement that recommendation, but that is a matter for the Minister. Furthermore, I intend to recommend that there be a mandatory restriction on student social workers and qualified social workers with less than 12 months experience having client contact without direct supervision by a senior social worker.
The latter comment reflects comments by Emeritus Professor Freda Briggs on the content of the social work undergraduate degree course -
Professor Briggs expressed concern in her evidence that social work students on completion of their degree course had obtained little insight about children and were unable to tell the difference between normal child development and abnormal child development and that this would lead to mistakes being made in the child protection area. She also commented that social workers must be trained to relate well to children because, if they could not, they would choose instead to relate to the adults and listen to them, thereby missing important information. She said that there was no course content in the social work course relating to child protection. She has campaigned over a long period to have changes made to the content of the social work course. However, she said that her discussions have not been fruitful because the course content is accredited by the Australian Association of Social Workers. Professor Briggs remarked that social workers are responsible for assessing the safety of children and yet their training in child development is not as good as that of a kindergarten teacher. Yet kindergarten teachers are not required to make the serious decisions that social workers make. 
Professor Briggs was concerned that inadequate training leads to social workers relying on their emotions rather than their professional knowledge . She was concerned that the Australian Association of Social Workers is making a submission to the current Royal Commission into Child Protection Systems that the employer, namely Families SA, should be responsible for training students to work in child protection. Professor Briggs regards that position as unrealistic. 
Professor Briggs was asked about cases of neglect of children and commented that experienced social workers become accustomed to seeing houses in which neglect takes place. She said that they can become acclimatised and: "…what they think is okay, a lot of other people wouldn't. For example, teachers despair that they have a neglected child. If the parents are drug addicts, it can be dismissed as a lifestyle choice when the child is being neglected as a result of the drugs." 
Professor Briggs regarded it as completely irresponsible to send a student social worker to work with a potential child neglect case. She said that student social workers do field work to learn, not to lead. She said they have to be supervised.

09 April 2015


'A Taxonomy of Lawyer Regulation: How Contrasting Theories of Regulation Explain the Divergent Regulatory Regimes in Australia, England/Wales, and North America' by Noel Semple, Russell G. Pearce, Renee Newman Knake in (2014) 16(2) Legal Ethics 258 asks
What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions. Although most jurisdictions employ a combination of approaches, as well as some hybrid methods, the Essay identifies the two dominant perspectives: (1) the professionalist-independent framework, predominate in anglophone North America, and (2) the consumerist-competitive framework found in the common law jurisdictions of Northern Europe and Australia. 
This theoretical divide, in turn, helps explain why the United States and Canada have largely adhered to a body of self-regulation focused upon aspirations of professionalism and professional independence. Australia and England/Wales, by contrast, have embarked upon market-oriented reform that purports to promote consumer protection and consumer interests. In describing this taxonomy, we recognise jurisdictions sometimes employ hybrid regulatory strategies that combine elements of the professionalist-independent and consumerist-competitive frameworks, such as gatekeeper rules promulgated by the State (as opposed to gatekeeper regulations promulgated by judges or the legal profession). We also acknowledge that regulatory approaches are dynamic and that regulators may very well shift perspectives over time. Nevertheless, organising the claims of commentators and regulators into categories will help to promote analysis and comparison of legal services regulations, as well as to improve the quality of decision-making by those who craft and enforce the rules. We identify, for example, the crucial distinction between how these two approaches construct an understanding of legal services clients. Consumerist-competitive systems identify clients as consumers (who are similar to consumers of other goods and services) and apply this perspective to the particular context of purchasing legal services. In contrast, professionalist-independent systems understand the experience of a legal services client as fundamentally different from that of other consumers and, accordingly, require a wholly distinct regulatory approach. 
The Essay proceeds as follows. Part I situates our inquiry in the context of a larger, more fundamental question: why regulate legal services in the first instance? We identify and describe various theories that explain the introduction of regulation, contrasting in particular the private interest (capture) and public interest (market failure) approaches. Part II then turns to an exploration of the regulators' normative theories on how legal services ought to be regulated. Here we describe the taxonomy of consumerist-competitive and professionalist-independent approaches, including how consumerist-competitive approaches tend to favour government regulation, market-oriented solutions, firm-level accountability, and principles-based regulatory strategies and why professionalist-independent approaches tend to favour self-regulation, individual lawyer accountability, and command-and-control regulatory strategies. We also describe how some jurisdictions employ both hybrid and multiple strategies, and identify unintended consequences that have confounded the intentions of legal services regulators.

Smart Meters

From yesterday's Commonwealth Energy White Paper -
Price signals and advanced metering
Price signals need to be complemented by the consumer’s ability to understand and respond to those signals. A more cost-reflective tariff arrangement is one where prices are based on the cost to supply electricity at the time it is used, which requires advanced household electricity meters (smart meters or, at a minimum, interval meters that track usage over time). Effective and timely consumer access to their own data from these meters (either directly or through an authorised agent) is critical to enable a more sophisticated response to cost-reflective tariffs and help consumers select the best services for their needs. Access to a consumer’s consumption profile must be readily available (for example, online) and accessible, if authorised by the consumer, to service providers and third parties to support consumer decision-making.
Some stakeholders support a mandated rollout of advanced meters. Advanced meters allow consumers to gain the full benefits of demand-side measures, such as cost‑reflective tariffs and energy efficiency technologies, to manage their energy use. Other stakeholders assert that metering should be at a customer’s choice because some  customers will be unable to change their use patterns in response to information on their energy use from a meter and associated price signals from cost-reflective pricing. The Australian Government supports competitive and voluntary metering services, where the benefits exceed the costs, because they will drive the efficient rollout of advanced meters, based on the value they provide to consumers and market participants.
Case study: Smart meters
Smart meters offer more functions than are possible with traditional meters. A smart meter measures electricity use continuously and records consumption every half hour while a traditional meter only measures total energy consumption. A smart meter provides secure communication capabilities, can work with different household technologies such as online portals and in-home displays, and is required to support technologies that report information on particular appliances. Smart meters support the development of innovative products and services, such as load management, which can help consumers manage their bills. This is different to a traditional meter, which only measures the total consumption between any two points in time. Smart meters come in different types and models, feature digital displays in place of a dial, and are similar in size to a traditional meter.
The Australian Government supports a market-driven approach to demand response arrangements for large energy users that gives them options to effectively respond to cost-reflective price signals and manage their costs. The Government also supports greater competition and choice in how energy users can respond to high wholesale price signals.
Under a demand response mechanism, consumers participating in the wholesale market would be able to make the decision to continue consumption or reduce their consumption by a certain amount in response to high spot prices. They would be paid according to the amount of ‘demand response’ delivered to the market, which is calculated as the difference between their estimated ‘baseline consumption’ and their actual metered consumption for the demand response interval. While it would mainly assist large electricity users initially, in the future it could be adapted to demand responses from residential consumers who have the appropriate metering technology in place.
The Paper goes on to state (at p32) that -
Improved energy productivity will reduce household and business energy costs and encourage economic growth. Energy productivity aims to lower the ratio of energy costs to the value of output received from the use of that energy. Energy productivity can be improved through energy market reforms such as increased competition and cost-reflective pricing that are aimed at lowering costs as well as energy efficiency measures.
The productive use of energy can lower energy costs by improving both the output and benefit received per unit of energy consumed. The more productive use of energy can delay the need for new energy supply infrastructure, which in turn relieves the need for price increases to recover that investment.
Increasing Australia’s energy productivity relies on the energy market reforms outlined in Chapter 1, particularly those that increase choice in energy services. Increased competition and flexible tariff structures provide this choice. Choice needs to be complemented by equipping consumers with appropriate information and decision‑making tools to select the services that benefit them (for example, ensuring they select the best tariff to save them money, rather than one that might increase their bills). There are significant barriers to the timely access to and sharing of consumers’ own data, particularly in developing new systems to support smart meters. There is a role for Government to ensure energy consumers have access to the information and tools they need to make informed choices. Other barriers, such as split incentives (for example, in cases where building owners may be less motivated to make improvements than their tenants who pay for the energy consumed) will also need to be addressed.


'Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice' by James Q. Whitman in Texas Law Review (Forthcoming) argues
 American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. 
The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.


'Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative' by Elizabeth Katz in (2015) 21(2) William & Mary Journal of Women and the Law argues 
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women. 
Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

ATT Data Breach

The US Federal Communications Commission has imposed a US$25 million penalty as part of a settlement with AT&T over the telco's failure to protect customer personal information, including Social Security numbers.

Employees at call centers in Mexico, Colombia and the Philippines used by AT&T were found to have stolen the names and full or partial Social Security numbers of about 300,000 customers, with the information being sold to third parties.

Customer service staff in Mexico provided data corresponding to specific phone numbers  supplied by a man with the alias El Pelón. The data accessed without authorization was used to submit 290,803 mobile phone handset unlock requests through the telco's website.

The FCC first learned of the privacy violations after ATT reported the activity in Mexico to California's attorney general last year. Breaches in the Philippines and Colombia were reported to the FCC this year. Approximately 211,000 customer accounts were accessed in connection with data breaches in the Colombian and Philippine facilities.

The FCC has not indicated whether other telcos carriers used the same call centres.

AT&T has announced that
Protecting customer privacy is critical to us. We hold ourselves and our vendors to a high standard. Unfortunately, a few of our vendors did not meet that standard and we are terminating vendor sites as appropriate. We’ve changed our policies and strengthened our operations. While any misuse of customer information is serious, we have no reason to believe that the information was used for identity theft or financial fraud against our customers.
The FCC states
The commission cannot — and will not — stand idly by when a carrier’s lax data security practices expose the personal information of hundreds of thousands. Customers trust that their phone company will zealously guard access to sensitive personal information in customer records. We hope that all companies will look to this agreement as guidance.
 The FCC notes that
The company will also notify all customers whose accounts were improperly accessed. AT&T will pay for credit monitoring services for all consumers affected by the breaches in Colombia and the Philippines.Additionally, AT&T will be required to improve its privacy and data security practices by appointing a senior compliance manager who is a certified privacy professional, conducting a privacy risk assessment, implementing an information security program, preparing an appropriate compliance manual, and regularly training employees on the company’s privacy policies and the applicable privacy legal authorities. AT&T will file regular compliance reports with the FCC. 
The failure to reasonably secure customers’ personal information violates a carrier’s duty under Section 222 of the Communications Act, and also constitutes an unjust and unreasonable practice in violation of Section 201 of the Act. The Commission has made clear that it expects telecommunications carriers to take “every reasonable precaution” to protect their customers’ data. The Commission has also adopted rules that require carriers to take reasonable measures to discover, report, and protect against attempts to access CPNI without authorization. 
With this action, the Commission has taken five major enforcement actions valued at over $50 million in the last year to protect consumer privacy and data security. In May 2014, the Commission announced a $2.9 million planned fine against Dialing Services, LLC, for violating Commission rules that seek to protect consumers from harassing, intrusive, and unwanted robocalls to mobile devices. Also in May 2014, Sprint Corporation entered into a $7.5 million settlement to resolve an investigation into Sprint’s failure to honor consumers’ do-not call or do-not-text requests. In September 2014, the Commission reached a $7.4 million settlement with Verizon to address the company’s unlawful marketing to two million customers without their consent or notification of their privacy rights. In October 2014, the Commission announced a $10 million planned fine against TerraCom, Inc., and YourTel America, Inc., for failing to provide reasonable protection for customers’ personal information.

Bitcoin, Wikileaks and ideology

'Bitcoin as Politics: Distributed Right-Wing Extremism' by David Golumbia in Geert Lovink, Nathaniel Tkacz, and Patricia de Vries (eds) MoneyLab Reader: An Intervention in Digital Economy (Institute of Network Cultures, 2015) argues
 Bitcoin is promoted as an alternative to currency, and even at times as an alternative to money, but neither Bitcoin’s development nor its promulgation emerge from thoughtful analyses of money or currency as they currently exist, let alone the thought and history that have figured in their development. 
The grounding problems that Bitcoin advocates consider central are not the ones that major thinkers about money or currency, from the Right or the Left, have deemed important. On the contrary, those grounding problems are largely ideological: the desire to bypass the (apparently lawful) credit card and PayPal “blockade” of WikiLeaks, on the one hand (usually mentioned as the instigating event in the widespread use of Bitcoin), and the desire to bypass central and/or commercial banks for either the creation of money (as many of the more rabid advocates insist) or the provision of financial services (the main interest of Satoshi Nakamoto’s original Bitcoin paper), on the other. The former ideas emerge from a libertarian, anti-state politics familiar from much of the WikiLeaks story. The latter ideas emerge from the profoundly ideological and overtly conspiratorial anti-Central Bank rhetoric propagated by the extremist Right in the US, and which despite its overt “anti-bank” rhetoric, on most thoughtful analysis, serves rather than resists the interests of banks and big finance (much as despite its anti-bank rhetoric, Bitcoin itself is now promoted by banks, investors, and venture capitalists). 
Scholars of money like Mary Mellor and Ann Pettifor have suggested meaningful alternatives to the current money system, but Bitcoin has very little in common with their proposals, which would require societal assent as well as technical innovation. The lack of any thorough, non-conspiratorial analysis of existing financial systems means that Bitcoin fails to embody any true alternative to them. The reasons for this have little to do with technology and everything to do with the existing systems in which Bitcoin and all other cryptocurrencies are embedded, systems that instantiate the forms of social power that cannot be eliminated through either wishful thinking or technical or even political evasion: the rich and powerful will not become poor and powerless simply because other people decide to operate alternate economies of exchange. Lacking a robust account of transforming these systems of power, even without Bitcoin’s flaws, a “perfect” cryptocurrency would exacerbate, rather than address, the existing serious problems with our monetary and financial systems. Because it operates without such an account, Bitcoin’s real utility and purpose (and that of the cryptocurrency movement in general) can be better understood as a “program” for recruiting uninformed citizens into a neoliberal anti-government politics, understanding the nature and effects of which requires just the attention to political theory and history that Bitcoin enthusiasts rail against.
'Bitcoin Financial Regulation: Securities, Derivatives, Prediction Markets, and Gambling' by Jerry Brito, Houman B. Shadab and Andrea Castillo in (2014) Columbia Science and Technology Law Review comments
The next major wave of Bitcoin regulation will likely be aimed at financial instruments, including securities and derivatives, as well as prediction markets and even gambling. While there are many easily regulated intermediaries when it comes to traditional securities and derivatives, emerging bitcoin-denominated instruments rely much less on traditional intermediaries. Additionally, the block chain technology that Bitcoin introduced for the first time makes completely decentralized markets and exchanges possible, thus eliminating the need for intermediaries in complex financial transactions. 
In this article we survey the type of financial instruments and transactions that will most likely be of interest to regulators, including traditional securities and derivatives, new bitcoin-denominated instruments, and completely decentralized markets and exchanges. We find that Bitcoin derivatives would likely not be subject to the full scope of regulation under the Commodities and Exchange Act to the extent such derivatives involve physical delivery (as opposed to cash settlement) or are nonfungible and not independently traded. We also find that some laws, including those aimed at online gambling, do not contemplate a payment method like Bitcoin, thus placing many transactions in a legal gray area. 
Following the approach to virtual currencies taken by the Financial Crimes Enforcement Network, we argue that other financial regulators should consider exempting or excluding certain financial transactions denominated in Bitcoin from the full scope of their regulations, much like private securities offerings and forward contracts are treated. We also suggest that to the extent that regulation and enforcement becomes more costly than its benefits, policymakers should consider and pursue strategies consistent with that new reality, such as efforts to encourage resilience and adaptation.
'Bitcoin: The Wrong Implementation of the Right Idea at the Right Time' by Andrés Guadamuz and Christopher Marsden comments
This paper is a study into some of the regulatory implications of cryptocurrencies using the CAMPO research framework (Context, Actors, Methods, Methods, Practice, Outcomes). We explain in CAMPO format why virtual currencies are of interest, how self-regulation has failed, and what useful lessons can be learned. We are hopeful that the full paper will produce useful and semi-permanent findings into the usefulness of virtual currencies in general, block chains as a means of mining currency, and the profundity of current ‘media darling’ currency Bitcoin as compared with the development of block chain generator Ethereum. 
While virtual currencies can play a role in creating better trading conditions in virtual communities, despite the risks of non-sovereign issuance and therefore only regulation by code (Brown/Marsden 2013), the methodology used poses significant challenges to researching this ‘community’, if BitCoin can even be said to have created a single community, as opposed to enabling an alternate method of exchange for potentially all virtual community transactions. First, BitCoin users have transparency of ownership but anonymity in many transactions, necessary for libertarians or outright criminals in such illicit markets as #SilkRoad. Studying community dynamics is therefore made much more difficult than even such pseudonymous or avatar based communities as Habbo Hotel, World of Warcraft or SecondLife. The ethical implications of studying such communities raise similar problems as those of Tor, Anonymous, Lulzsec and other anonymous hacker communities. Second, the journalistic accounts of BitCoin markets are subject to sensationalism, hype and inaccuracy, even more so than in the earlier hype cycle for SecondLife, exacerbated by the first issue of anonymity. Third, the virtual currency area is subject to slowly emerging regulation by financial authorities and police forces, which appears to be driving much of the early adopter community ‘underground’. Thus, the community in 2016 may not bear much resemblance to that in 2012. Fourth, there has been relatively little academic empirical study of the community, or indeed of virtual currencies in general, until relatively recently. Fifth, the dynamism of the virtual currency environment in the face of the deepening mistrust of the financial system after the 2008 crisis is such that any research conclusions must by their nature be provisional and transient. 
All these challenges, particularly the final three, also raise the motivation for research – an alternative financial system which is separated from the real-world sovereign and which can use code regulation with limited enforcement from offline policing, both returns the study to the libertarian self-regulated environment of early 1990s MUDs, and offers a tantalising prospect of a tool to evade the perils of ‘private profit, socialized risk’ which existing large financial institutions created in the 2008-12 disaster. The need for further research into virtual currencies based on blockchain mining, and for their usage by virtual communities, is thus pressing and should motivate researchers to solve the many problems in methodology for exploring such an environment.

08 April 2015


In Sands v State of South Australia [2015] SASCFC 36 the Supreme Court of South Australia has found for the State in considering Derick Sands's appeal regarding claims of defamation and breach of statutory duty against the State of South Australia.

Sands attracted attention through an unsuccessful claim that his privacy had been breached through a media release and press conference regarding a murder investigation.

The Court found that the two imputations that were conveyed were justified. Three additional alleged imputations were not conveyed.

The Court further held that the State did not contravene the Criminal Law (Forensic Procedures) Act 1998 (SA) s 48 (SA) because the media release and press conference did not constitute a report of proceedings.

The judgment states
 In neither the Media Release nor the Press Conference was Mr Sands named. For this reason alone, there can be no suggestion that the State, in any way, published a report of proceedings under the Act containing the name of a person under suspicion. However, as counsel for Mr Sands during oral submissions rightly conceded, the references in the Media Release and during the Press Conference to the affidavit naming Mr Sands did not constitute the publishing of a report of proceedings under the Act. In our view, this is a complete answer to Mr Sands’ complaint based on section 48. The plain (and conceptually logical) reading of the opening words is that section 48 is directed only to publishing a report of proceedings under the Act. In particular, it targets publishing a report containing the name of a person under suspicion or containing other information tending to identify such a person. Mr Sands’ contention that section 48 prohibits the publication of any information tending to identify the person under suspicion simpliciter, that is, independently of a “report of proceedings”, is a misreading of the text and falls outside the intended scope of the provision. It would not be rational to confine the prohibition of publication of a suspect’s identity directly by name to the context of a report of proceedings but to prohibit absolutely publication of a suspect’s identity indirectly by some other means. 
The proper reading of section 48 is to recognise that “other information tending to identify the person” is simply an alternative to the direct naming of the person, but, as a matter of syntax, it still attaches to the publishing of a report. That is, section 48 only prohibits the publishing of a report of proceedings under the Act that names the person suspected directly, or the publishing of a report of proceedings under the Act that contains information that tends to identify the person suspected. At no time did the State publish such a report. 
Section 48 was not engaged. It is unnecessary to deal with the issues whether the reference to the affidavit tended to identify Mr Sands or whether any failure to comply with section 48 would give rise to a private cause of action for breach of statutory duty.


'Beyond Cheneyism and Snowdenism' by Cass R. Sunstein in University of Chicago Law Review (Forthcoming) comments
 In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.

05 April 2015

Rights Agenda

The 'Freedoms Commissioner' has released a 68 page report [PDF] titled Rights & Responsibilities 2014, characterised as the result of
a national consultation ... between August and December 2014 [that] examined how well people think their human rights and freedoms are protected in Australia". 
 The report - largely anodyne - quotes the submission by Dr Susan Priest and myself and moves beyond the initial discussion paper to recognise concerns regarding poverty.

The Commissioner states
Based on the outcomes of Rights & Responsibilities 2014, the Human Rights Commissioner will prioritise the following areas of work in relation to human rights over the next four years:
  • Freedom of expression: the Commissioner will continue to explore potential reforms in relation to current laws that restrict the right to freedom of expression. 
  • Religious freedom: the Commissioner will form a religious freedom roundtable to bring together representatives of different faiths to facilitate how to advance religious freedom in Australia. 
  • Property rights: the Commissioner will jointly facilitate a high-level forum with the Aboriginal and Torres Strait Islander Social Justice Commissioner to discuss reforms that remove legal and regulatory barriers faced by native title holders seeking economic development. 
  • Property rights: the Commissioner will undertake further work that examines the right to access affordable housing in Australia. 
  • Freedom from arbitrary detention: the Commissioner will seek to work with relevant organisations to examine the denial of liberty for people with mental health issues. 
  • Human rights education: the Commissioner will develop educational resources for the 800th anniversary of the Magna Carta on 15 June 2015.
He goes on to state
Key issues emerging from the consultation
The objective of Rights & Responsibilities 2014 was to actively seek and listen to people’s views across the country about how well their rights and freedoms are protected in Australia. This process provided an opportunity to identify systemic human rights issues and to consider possible ways to address these issues. The key human rights issues outlined in this report reflect recurrent themes discussed at public events and meetings, and described in the online survey results and submissions. Data collected from meetings, survey responses and submissions was cross-referenced to ensure the information was valid and reliable. This triangulation of data sources supports the relevance and significance of these human rights issues. It is also notable that many of these human rights issues were consistent across the country.
Rights &  Responsibilities 2014 focused on key common law rights and freedoms that traditionally underpin the framework of Australia’s liberal democracy and market economy, including the rights to freedom of expression, religion and association, and property rights. The importance of these rights and freedoms is also acknowledged in international human rights instruments.
The following sections of the report highlight
  • the issues emerging from the consultation in relation to each of these rights and freedoms 
  • the views of survey respondents about how well these rights are protected in Australia 
  • examples of people and organisations seeking to promote and exercise these rights and freedoms.
While freedom of expression, religion and association, and property rights are discussed separately in this report, the exercise of these rights is often interconnected. The interdependence of human rights means that the enjoyment of any individual right is contingent on the enjoyment of other rights. As Freedom 4 Faith note in their submission:
Religious freedom can only operate in a society that embraces the principle of mutual tolerance and respect. Further, it goes hand-in-hand with freedom of conscience, speech and association, which serve as the means by which people can consider, discuss and debate important questions about human existence. These “four freedoms” are essentially indivisible, and are each deserving of protection.
During Rights & Responsibilities 2014, additional issues and themes were raised that were outside the scope of the discussion paper. These recurring issues included concerns about:
  • the right to freedom from arbitrary detention and the criminal justice system 
  • the denial of liberty for individuals in the mental health system 
  • the potential to give effect to a bill or charter of human rights in Australia.
A criticism of the consultation outlined in a number of submissions and raised at several public meetings was why the national consultation focused only on the rights to freedom of expression, religion, association and property rights.
There was particular concern that the Rights & Responsibilities 2014 discussion paper did not seek to consult on the right to freedom from arbitrary detention as it relates to people seeking asylum in Australia. The consultation deliberately did not focus on the right to arbitrary detention for the following reasons:
  • The Commission has an extensive work program relating to asylum seekers, under the leadership of the President. This includes a complaints process. 
  • The consultation did not want to interfere with the National Inquiry into Children in Immigration Detention being undertaken concurrently by the President during 2014.
Issues raised about human rights and freedoms within the criminal justice and mental health systems – and potential implications for the right to arbitrary detention – are set out in this report.
Other issues emerging during the consultation included the need for further education about human rights. This was particularly highlighted because of the upcoming 800th anniversary of the Magna Carta on 15 June 2015. This is discussed in section 4 of this report.
Our submission commented in part
In summary, the freedoms highlighted by the Commission in [its discussion] paper are some but not all of the freedoms recognised in international law over the past 60 years.
The Commission should be cautious about decontextualising specific freedoms or, in enshrining laissez-faire values, assuming that the right to enjoy property necessarily trumps both freedoms and the responsibility of Australian governments to foster individual and social flourishing.
It should also be wary of assumptions that corporations necessarily have the same rights as humans or that restriction on real, intangible and chattel property (such as that relating to advertising of deleterious products such as tobacco) is impermissible.
Australians enjoy a long-standing and legitimate recognition that freedom involves more than protection from an oppressive state. Both the national and state/territory governments thus properly engage in activities intended to provide a freedom from want and fear, activities that foster individual and social flourishing by underpinning the exercise of the rights and responsibilities highlighted in the Rights and Responsibilities 2014 discussion paper.
That flourishing can be facilitated through a justiciable Bill or Charter of Rights and Freedoms, enshrined through referendum in the national Constitution and thus protected from political opportunism. ... Australia is a liberal democratic state that manifests a recognition that governments are representative, are accountable and exist to foster the flourishing of all Australians.
As such, governments have legitimately intervened in markets to protect people from harm (for example to restrict the promotion and distribution of products that do not meet safety standards or, as in the case of tobacco products, result in injury to individuals and burden the national economy) and to address market failures (for example anti-competitive behaviour in the form of monopolies and oligopolies or deceptive practice).
They have shaped behaviour and restricted freedoms (through for example a requirement to use seat belts, wear motorcycle helmets and not drive while intoxicated or zoning schemes that affect the use of real property).
On a bipartisan basis they have also provided a social safety net (income support for people who are unable to work, public heath services for those unable to afford private health services or who because of location are unable to readily access private health services), along with public funding for education at the junior, secondary and tertiary levels (including substantial support for education delivered by private institutions).
In doing so governments have given effect to four freedoms identified in the Preamble to the Universal Declaration of Human Rights (UDHR), a foundational global human rights agreement that has been reflected in several conventions and in Australian statute law.
Those freedoms include freedom from want (poverty and discrimination that prevents people from full participation in society and from personal flourishing) and freedom from fear (fear of violence and discrimination that prevents social participation and flourishing).
As the preceding paragraphs have indicated, rights are not absolute. They can be restricted on a non-arbitrary basis in circumstances where restriction fosters personal and social flourishing. In terms of legitimacy such restriction must be lawful (that is, authorised under statute/common law, readily identifiable, appellable where there has been legal error, and without bias). It must also be proportionate, namely fitted to reach a proper outcome but no more. The absence of proportionality is of particular concern in relation to the ongoing erosion of freedoms through passage of migration and national security statutes that privilege bureaucratic convenience over what is necessary, that are open to abuse by politicians and weakly-accountable officials, that foster fear rather than security, and that are not restricted by a constitutional protection of freedoms.
It is axiomatic that human rights are inalienable. Under Australian law they are to be enjoyed by all people, rather than merely Australian citizens. We suggest that the Commission should note concerns about statutory measures that seek to deny non-citizens those rights that are held by all people, a denial that for example the Department of Immigration & Border Protection has obfuscated through a policy of secrecy in dealing with such matters as a large-scale data breach and non-accountability regarding systemic sexual and other abuses in facilities at Manus and Nauru. That denial sends an inappropriate message to Australia’s peers, such as China and Indonesia, and is inconsistent with the Government’s statements regarding human rights in Iran and Syria.
The Commission should also note community concerns about measures that are promoted as imperative and appropriate responses to existential threats regarding national security and law enforcement. Some of those measures serve to criminalise association, provide for preventive detention, purport to fetter the judiciary or authorise large-scale warrantless access to personal information by local government and non-government entities without regard for community expectations of non-interference in the personal sphere (for example, privacy). Concerns regarding those measures are particularly salient where governments have disregarded the independent review of the courts, have engaged in problematical judicial appointment or have prevented substantive community consideration of Bills – as in the 2014 ‘Foreign Fighters’ Bill – through a ‘consultation’ that is so speedy as to be purely formal and going well beyond that which is required.
We commend the Commission for engaging with the community in discussion about rights, responsibilities and liberties. However, two things are fundamentally important if that consultation is to be more than a gesture.
The first is that the Commission must – and we respectfully use the term ‘must’ rather than ‘may’ or ‘should’ – recognise that freedoms exist within a political, economic and social context. In construing freedoms the Commission should acknowledge that the national, state and territory governments have a fundamental role in protecting freedoms and in signalling responsibilities.
One example is that of free speech. An old but pertinent legal aphorism is that freedom of the press is enjoyed by entities that own a press, can afford the litigation associated with such ownership and are prepared to actively influence politicians. Egregious abuses of privacy in Australia and overseas, for example by Australia’s largest commercial media group, are not justified through self-interested reference to ‘public goods’. The resistance of News and SevenWest to meaningful external regulation is disturbing and, given a history of abuses, is not justified through claims that the groups behave responsibly and have a disinterested effective self-regulatory regime. In thinking about freedoms it is accordingly important to acknowledge that in a free market not all actors are equal; actors such as the largest corporations can and do exploit freedoms at the expense of individuals, families and small enterprises.
The freedom espoused by the Commission should not be a freedom from responsibility and a freedom from meaningful regulation. In that respect ‘meaningful’ includes regulators that have not been captured by those they seek to regulate, that have pertinent statutory authority and – importantly – have both the resources and will to engage in regulation. There is substantive community concern regarding regulators and other entities, such as the Therapeutic Goods Administration, Privacy Commissioner and Commonwealth Ombudsman that lack the number of staff, the expert staff and the will to deal with problems involving government agencies and large enterprises. The absence of vigour in those agencies erodes the legitimacy of regulation and renders it a potemkin village, a hollow facade.
The second matter for note by the Commission is that freedoms – as human rights –are properly enjoyed by humans, namely, natural persons. Corporate entities, including for-profit enterprises and religious institutions, have a legal personhood on behalf of people and their freedoms do not trump those of the people whom they represent/serve.
Recent years have seen claims that restrictions on marketing by corporations (for example in relation to the packaging of cigarette products) are impermissible. Those claims are legally invalid, have not been endorsed by the High Court of Australia and are not substantiated through reference to keystone human rights or international trade conventions. Corporations do not have a freedom to engage in unrestricted activity, particularly in markets where self-regulation is absent or otherwise ineffective and where there is substantial harm to both individuals and the broader community (eg a burden on the public/private health system attributable to harms associated with particular products).
The example of religious institutions is apposite, given that several inquiries, including the current national Royal Commission, have demonstrated systemic problems regarding the mistreatment of vulnerable people and have demonstrated that those institutions have resisted accountability. A freedom of religious expression and respect for ethno-religious or religious affinity does not mean a freedom from scrutiny and freedom from responsibility. Advocacy by adherents of particular faiths or on behalf of particular institutions should be construed in context, with the Commission recognising that in a diverse society that does not have an established church (and in which a specific faith is not constitutionally enshrined, contrary to the belief of some advocates) a balance both should and can be struck. Religious institutions in Australia enjoy an advantageous position, for example under taxation law, and should not use calls for freedom to evade responsibility in dealing with serious harms or in promotion of a political agenda that directly against people on the basis of sexuality, ethnicity or other affinity.
The Commission’s paper refers to claims of a “gradual, but significant, erosion of traditional protections for private property rights”, with the rights of individuals – and presumably corporate entities – being “compromised, removed or damaged by government regulations and actions”. We offer two comments in relation to those claims.
The first is that property rights in no country are absolute. Limitations on the ownership and use of real, intellectual and chattel property are recognised in international law. They are also recognised in Australian statute and common law over the past century. The Commission should be concerned with inappropriate restrictions rather than with restrictions per se.
The second comment is that the paper appears to envisage that restrictions relate to abuse by the state. That is not necessarily so. A salient example is provided by submissions to the Victorian Law Reform Commission as part of that body’s review of law regarding the rights of people – wealthy or otherwise – who rent residential property. Australian should consistently and clearly recognise that people in private and public housing have a right to quiet enjoyment of their residence in the absence of illegal activity. They should not be placed at serious risk or harm or commodified through unauthorised making/dissemination of still/video images by landlords and real estate agents. The traditional notion that someone’s home is their castle, a private sphere free from illicit interference, is as relevant in 2014 as it was at the time of Entick v Carrington. Law has a role in ensuring an appropriate balance that respects the freedom of people who rent.
A justiciable Bill or Charter of Rights
Australia remains the only common law country in the world without a Bill or Charter of Rights. The Commission notes that human rights are protected in Australia through a myriad of federal, state and territory laws, policies and practice as well as through the common law and culture.
We strongly encourage the Commission to use the consultation process as an opportunity to review steps already taken towards enacting a Bill or Charter of Rights for Australia and other options such as the limited nature of judicial review, which in turn will inform a broader debate concerning the efficacy of human rights protection in Australia.
The discussion paper comments that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides a mechanism to consider whether any new legislation is compatible with human rights. In practice that committee – and the work of entities such as the Ombudsman – provides weak protection for freedoms. It can be – and in areas such as ‘national security’ (a rubric that increasingly covers a wide range of activities, including relationships with refugees) – is frequently disregarded by Ministers and officials.
Earlier in this submission we noted substantive community concerns regarding the egregious fast-tracked ‘consultation’ by the Government regarding the ‘Foreign Fighters’ Bill. It is of deep concern that the period for community scrutiny of such a long and complicated Bill, which reshapes Australian civil liberties and amends over 25 statutes, was less than a fortnight.
Freedom should not mean a freedom from community scrutiny of significant legislation and, as indicated by the Independent National Security Legislation Monitor, the enshrinement of mechanisms that provide national security officials with what in practice will be a freedom from accountability because of criminalisation of reporting by the Australian media about national security matters. The lack of engagement by the two major political parties with questions about civil liberties in relation to the national security legislation mean that scope for reporting and for fully informed community debate is particularly important.
As things stand, Governments have recurrently privileged bureaucratic and political convenience over rights. With enough votes in the national legislature they can and do override statutory protections for civil liberties. They can and do disregard cogent and substantive dissents by minority members on parliamentary committees. An effective response to that systemic problem is enshrinement in the national Constitution – ie outside political opportunism of the Government of the day and outside moral panics – of a rights Bill that articulates and protects the freedoms and responsibilities that differentiate Australia from totalitarian states such as North Korea and from terrorist regimes such as ISIS.
In a speech delivered by Chief Justice French of the Australian High Court in London in 2012, a quote from the ‘The Spirit of Liberty’ was referred to. In part this stated:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court, can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
In short, through these words originally penned in 194
the importance of a culture of a respect for human rights and freedoms within society [is underlined] … [t]he debate is to what extent such a culture may be supported, nurtured and protected by law’.