29 June 2017

Slavery and Corruption - Comparative Law

The elegant 'Slavery and Comparative Law in Eighteenth Century England' (University of Leicester School of Law Research Paper No. 17-08) by Michael Tugendhat addresses 
the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.
'The Market for Global Anticorruption Enforcement' by Rachel Brewster and Samuel W. Buell in (2017) 80(193) Law and Contemporary Problems comments 
In just two decades, enforcement of the Foreign Corrupt Practices Act (FCPA) has evolved from a backwater of corporate and international financial crime to one of the most prominent and feared laws in those fields. What accounts for the ten-fold increase, over just 15 years, in the annual FCPA case volume produced by United States enforcers? We explain the development as arising from a confluence of independent but nonetheless symbiotic international and domestic political and economic forces. First, in the international arena, policymakers dramatically shifted their beliefs in the harms from bribery. This change and the continuous American pressure to conclude an anti-bribery treaty created a new consensus among major exporting countries to criminalize foreign bribery. This opened up new political and institutional paths to pursue the supply of foreign bribes. Second, U.S. enforcement lawyers eagerly pursued these newly available paths, propelled by political pressure and professional considerations. Third and inevitably, a large and active FCPA defense bar emerged that, perhaps ironically, helps keep primed a now steady pump of FCPA actions into the U.S. corporate enforcement system. A fourth stage has begun in which other nations, particularly in Europe, are both assisting and competing with the U.S. in the field of anti-corruption enforcement. It remains to be seen how this latest development will, over the longer haul, affect the size of the global market for anti-corruption enforcement and the U.S. share of that market.
'Reducing Bureaucratic Corruption: Interdisciplinary Perspectives on What Works' by Jordan Gans-Morse, Mariana Borges, Alexey Makarin, Theresa Mannah Blankson, Andre Nickow and Dong Zhang states that it offers
the first comprehensive review of the interdisciplinary state of knowledge regarding anti-corruption policies, with a particular focus on reducing corruption among civil servants. Drawing on the work of economists, political scientists, sociologists, and anthropologists, we examine seven categories of anti-corruption strategies: (1) rewards and penalties; (2) monitoring; (3) restructuring bureaucracies; (4) screening and recruiting; (5) anti-corruption agencies; (6) educational campaigns; and (7) international agreements. Notably, rigorous empirical evaluation is lacking for the majority of commonly prescribed anti-corruption strategies. Nevertheless, we find growing evidence of the effectiveness of anti-corruption audits and e-governance. In addition, adequate civil service wages seem to be a necessary but insufficient condition for control of corruption. An emerging skepticism regarding the effectiveness of anti-corruption agencies also is apparent in the literature. We conclude with broader lessons drawn from our review, such as the recognition that when corruption is a systemic problem, it cannot be treated in the long-term with individual-level solutions.

Identity Issues

Today's SMH reports on another appearance by Samantha Azzopardi - an echo of Frederic Bourdin, discussed in my doctoral dissertation - for fraud in receiving benefits while pretending to be a child.

The Herald states
A serial conwoman who posed as a 13-year-old Sydney foster child received nearly $20,000 worth of services from the NSW government and charities before she was found out, a court has heard.
Samantha Azzopardi has previously duped authorities in Ireland and Canada into thinking she was a child sex abuse and trafficking victim, forcing them to spend hundreds of thousands of dollars investigating her claims.
The 28-year-old was arrested at the beginning of June after she repeated that same story while pretending to be a 13-year-old Sydney high school student named Harper Hart.
Azzopardi pleaded guilty to four fraud offences earlier this month after she was given an iPad, phone and Opal card from the not-for-profit Burdekin Association, an ambulance transfer paid for by Good Shepherd Australia, and medication from the NSW Department of Family and Community Services.
Hornsby Local Court on Wednesday heard the cost of her lies to the Burdekin Association totalled more than $10,200. That included case management services.
The department spent about $6700 on medication while Azzopardi's charges also cover $1440 worth of counselling from a state government victim services group....
Azzopardi, who did not apply for bail, is due to be sentenced on July 19 when the court will consider a psychiatric assessment.
The 28-year-old faces a maximum penalty of 10 years in jail, according to court documents outlining police arguments for denying her initial bail.
The document cites her "extensive history of providing false documentation, obtaining passports in false names and assuming identities of other persons" in Queensland, Western Australia, Ireland and Canada.
Irish authorities were dumbfounded in 2013 when Azzopardi was found wandering the streets near Dublin's main post office and tricked them into thinking she was a teenage trafficking victim from eastern Europe by drawing pictures apparently showing a woman being raped and refusing to communicate verbally.
Authorities spent weeks and $A372,218 trying to identify the waif known as the "lost G.P.O girl" before taking the unprecedented step of publicly releasing a photo of her.
They soon discovered she was not a child sex trafficking victim but a 25-year-old Australian scammer with a history of assuming false identities dating back to 2007. ...
Azzopardi] was born into middle class family in 1988, growing up in Campbelltown and attending Mount Annan High School.
After finishing school she got a job at the Campbelltown Pancakes on the Rocks where her former boss described her in 2013 as "a lovely girl who had issues."
Quite so.

Azzopardi is reported to have been convicted in Brisbane Magistrates Court in September and October 2010 oncharges relating to making false representations and forging documents, with a $500 fine. In June 2012 she pleaded guilty in Perth Magistrates Court to offences relating to welfare fraud and was sentenced in October to six months imprisonment, suspended for 12 months.

28 June 2017


'The Citizenship of Personal Circumstances in Europe' (University of Groningen Faculty of Law Research Paper 2017-04) by Dimitry Kochenov comments
 The EU’s is a curiously atypical legal system which construes the on-going shift from citizenship to personhood in global constitutional law in quite an atypical way. The advent of the person boasts, globally, a powerful ability to remedy the harsh edges of the arbitrary exclusionary legal fiction of citizenship by embracing those who do not qualify to benefit from it. In the EU, however, the turn of constitutionalism to personhood plays quite the opposite role: it disables the protections of EU citizenship. This curious turn, which this paper aims to document and discuss, has two consequences. Firstly, it annihilates citizenship as a meaningful legal status in the EU, since its declared benefits and protections can always be overridden by personal circumstances of the holder: precisely what citizenship, at its inception, was supposed to make impossible. Secondly, it deprives of protections of citizenship precisely those who need it the most, since they become invisible in the eyes of the powers that be. As a result citizenship in Europe is turning into a ‘citizenship of personal circumstances’ – a figure of inescapable individualism imposed on those in need, who are thereby detached from other citizenry and branded out as not good enough in the eyes of the Union – leaving little space to the grand ideals of the past.

27 June 2017


'“Let’s pull these technologies out of the ivory tower”: The politics, ethos, and ironies of participant-driven genomic research' by Michelle L. McGowan, Suparna Choudhury, Eric T. Juengst, Marcie Lambrix, Richard A. Settersten Jr and Jennifer R. Fishman in (2017) 1 BioSocieties 1 comments
This paper investigates how groups of ‘citizen scientists’ in non-traditional settings and primarily online networks claim to be challenging conventional genomic research processes and norms. Although these groups are highly diverse, they all distinguish their efforts from traditional university- or industry-based genomic research as being ‘participant-driven’ in one way or another. Participant-driven genomic research (PDGR) groups often work from ‘labs’ that consist of servers and computing devices as much as wet lab apparatus, relying on information-processing software for data-driven, discovery-based analysis rather than hypothesis-driven experimentation. We interviewed individuals from a variety of efforts across the expanding ecosystem of PDGR, including academic groups, start-ups, activists, hobbyists, and hackers, in order to compare and contrast how they relate their stated objectives, practices, and political and moral stances to institutions of expert scientific knowledge production. Results reveal that these groups, despite their diversity, share commitments to promoting alternative modes of housing, conducting, and funding genomic research and, ultimately, sharing knowledge. In doing so, PDGR discourses challenge existing approaches to research governance as well, especially the regulation, ethics, and oversight of human genomic information management. Interestingly, the reaction of the traditional genomics research community to this revolutionary challenge has not been negative: in fact, the community seems to be embracing the ethos espoused by PDGR, at the highest levels of science policy. As conventional genomic research assimilates the ethos of PDGR, the movement’s ‘democratizing’ views on research governance are likely to become normalized as well, creating new tensions for science policy and research ethics.
'Steve Jobs, Terrorists, Gentlemen and Punks: Tracing Strange Comparisons of Biohackers' by Morgan Meyer in Joe Deville, Michael Guggenheim and Zuzana Hrdlicková (eds) Practising Comparisons: Logics, Relations, Collaborations (Mattering Press, 2016) comments
In this paper, I want to reflect and shed new light on one of my current research topics: biohacking. While I have been researching biohacking for a few years now, to date I have not yet examined its comparative dimension. The themes I have investigated thus far revolve around the materiality, boundaries, and ethics of biohacking. However, so far I have not problematised or made visible the issue of comparison, despite the fact that comparisons abound in discussions about biohackers. This article is thus an opportunity to use a comparative optics to ‘make new discoveries’ (Yengoyan 2006) on a subject that I felt I already knew well. 
Biohackers are people who hack and tinker with biology. On the one hand, the phenomenon of biohacking can be easily localised (both temporally and spatially). The movement emerged in 2007/2008 and has largely developed in large US and European cities. On the other hand, in order to understand and analyse the phenomenon, comparisons with a wide and heterogeneous set of figures are made by science journalists and practitioners alike. For example, biohackers are concurrently compared to the following: seventeenth-century gentlemen amateurs; terrorists (whom Western powers usually locate in the East); the punk movement that emerged in the 1970s and their do-it-yourself ethics; and Steve Jobs and the Homebrew Computer Club. 
The term biohacking is used today to designate a wide array of practices including the hacking of expensive scientific equipment by building cheaper alternatives; producing biosensors to detect pollutants in food and in the environment; and genetically re-engineering yoghurt to alter its taste, make it fluorescent, or produce vitamin C. Biohacking mobilises and transforms both molecular biology techniques and the ethics of hacking/open source. As such, it can be seen as a recent phenomenon. Its emergence as a distinct and visible movement can be traced back to the past eight or nine years. In 2008, for instance, DIYbio (the first association dedicated to do-it-yourself biology) was created. Two years later, the Biopunk Manifesto (2010) was written by Meredith Patterson, one of the leading figures in the biohacking movement. In addition, at the time of writing this paper, there are a number of associations, laboratories, wikis, websites, and so on, dedicated to biohacking. 
The rise of the biohacker movement has caught the attention of journalists and academics alike. Academics have followed and analysed the movement since around 2008 (see Schmidt 2008a; Bennet et al. 2009; Ledford 2010), and two books dedicated to the subject have recently been published: Biohackers: The Politics of Open Science (2013), by science and technology studies (STS) scholar Alessandro Delfanti, and Biopunk: DIY Scientists Hack the So ware of Life (2011), by science journalist Marcus Wohlsen. In one way or another, this body of work has examined the ethics, risks, potentials, and openness of the movement. 
The geographical spread of biohacking – like its temporal emergence – can also be delineated. According to the main website in the field (DIYbio.org), there are currently eighty-five DIY biology laboratories in the world, of which twenty-eight are located in Europe, and thirty-five are in the US on either the east or west coast. There are now biohacker labs and biohackers in cities like New York, Boston, Paris, San Francisco, Manchester, Vienna, and in recent years, initiatives have developed in places like Japan, Indonesia, and Singapore. The political geography of biohacking (and consequently, the arguments developed in this paper) thus needs to be emphasised. The biohacker movement is developing in Western and Westernised countries; laboratories are usually located in urban or suburban settings; and English is the lingua franca for the majority of the websites, articles, mailing lists, discussions, and wikis devoted to biohacking. 
This paper focuses on how, and to what, biohackers are compared. This is a challenging question, for as we will see below, biohackers are compared to rather unlikely bedfellows. Not only are plentiful comparisons being made, but they are also drawn between different cultures and times, and between different – sometimes opposing – values and ethics. Unlike the ‘comparator’ which needs to be actively assembled, fed, and calibrated in order to provide comparisons (Deville, Guggenheim, and Hrdličková 2013), in the case of biohackers, comparisons are ‘already there’ and they are omnipresent. The frequency and disparity of these comparisons are what caught my interest in comparison and what compelled me to write this chapter. Why are such comparisons mobilised and why are such unlikely gures put side by side? What kinds of effects do such comparisons afford? How should we analyse these comparisons?
It is not unusual for hackers and computer programmers to be compared. Computer hackers, for instance, have been compared to public watchdogs, whistle-blowers, elite corps of computer programmers, artists, vandals, and criminals (see Jordan and Taylor 1998), while recent hacker networks like the Anonymous group have been compared to industrial machine breakers, and to Luddites (Deseriis 2013). The Homebrew Computer Club (initially a group of ‘hobbyists’) eventually became a group of ‘business entrepreneurs’ (see Coleman 2012), and Steve Jobs is today being compared to people like Thomas Edison or Walt Disney. 
Using biohacking as a case study, I will reflect upon and problematise comparison. The list of potential benefits of comparison is long, and it is worth mentioning a few, such as how they help to explore new, unanticipated routes; move beyond national frameworks by varying scales of analysis; and identify social patterns while highlighting the singularity of the cases studied (de Verdalle et al. 2012). The practices, methods, and problems of comparison have been discussed in a number of academic texts over the past decade or so. For instance, Richard Fox and Andre Gingrich (2002) have made an important contribution by revisiting and (re)theorising comparison. Arguing that comparison is a basic human activity that deserves academic scrutiny, they lay out a specific programme for comparative approaches. Differentiating between weak or implicit comparison, and strong and explicit comparison, Fox and Gingrich push especially for the latter and highlight their plural nature (2002: 20). The explicit focus on comparison has now become increasingly common, so that people talk of a ‘comparative turn’ in the social sciences (see Ward 2010). In this sense, comparison is actively engaged with, problematised, and theorised. This interest is visible beyond the Anglo-Saxon world as well. In France, for instance, two collections of essays on comparison have been published in 2012 alone: one is in the journal Terrains et Travaux (featuring on its cover an orange and an apple – a classic image that at once depicts sameness and difference, and is one of the chief challenges of comparison). The other is in an edited book called Faire des Sciences Sociales: Comparer (Remaud, Schaub, and ireau 2012). 
In this article, I want to draw on this body of work in several ways. First, I am interested in several authors’ emphases on ‘thick’ and multidimensional comparisons. Ana Barro, Shirley Jordan, and Celia Roberts (1998) have argued that comparison should be explorative, thick, and multidimensional. Jörg Niewöhner and Thomas Scheffer – who also argue for a ‘thick’ comparison – further emphasise that comparisons are performative in that ‘they connect what would otherwise remain unconnected, specify what would otherwise remain unspecified, and emphasise what would otherwise remain unrecognised’ (2008: 281). In a related way, Joe Deville, Michael Guggenheim, and Zuzana Hrdličková (this volume) talk about approaches that actively ‘provoke’ comparisons, while Tim Choy (2011) examines what comparisons do. 
Second, I do not want to ‘solve’ the issue of comparison, nor tell a coherent account of what biohackers are and what they are not. I am, rather, exploring the problems that biohackers and their identities entail. In this sense, I follow Adam Kuper (2002) who reminds us that we have to ‘begin with a problem, a question, an intuition’ (2002: 161). He further writes:
I remain convinced that methodological difficulties are the least of our problems [...] We lack questions rather than the means to answer them. What we need in order to revive the comparative enterprise is not new methods but new ideas, or perhaps simply fresh problems (Ibid. 162).
I hold that biohackers are possibly such a ‘fresh problem’ since their identity is somewhat ambiguous and unclear, and since the probable risks and innovative potential of their activities are currently being debated. Discussions about biohacking reveal that there are many uncertainties and that it seems diffcult to put their identity into neat categories. The questions that seem to drive most biohacking comparisons – Who are they? How can we make sense of them? Are they to be feared or hailed? – seem to have no clear answer. 
Third, I also draw on Donna Haraway’s and Marilyn Strathern’s ideas around ‘partial connections’ and positionality. In her discussion about situated knowledge, Haraway writes:
[h]ere is the promise of objectivity: a scientific knower seeks the subject position, not of identity, but of objectivity, that is, partial connection. There is no way to ‘be’ simultaneously in all, or wholly in any, of the privileged (i.e. subjugated) positions (1988: 586).
She continues:
I am arguing for politics and epistemologies of location, positioning, and situating, where partiality and not universality is the condition of being heard to make rational knowledge claims [...] Feminism loves another science: the sciences and politics of interpretation, translation, stu ering, and the partly understood (Ibid. 589).
In her book Partial Connections (1991), Strathern further draws on Haraway’s work and uses the term ‘partial’ to say that ‘for not only is there no totality, each part also de nes a partisan position’ (1991: 39). The trope of ‘partial connections’ can be – and already has been – engaged with in work on comparisons. 
For instance, Endre Dányi, Lucy Suchman and Laura Watts (cited in Witmore 2009) have compared seemingly incompatible field sites (a renewable energy industry, the Hungarian Parliament, and a research centre in Silicon Valley) and noted that there can be a ‘remarkable repetitiveness’ when these sites are connected through specific themes (such as newness, centres/peripheries, place, and landscape). Others have talked about ‘partial comparisons’ (Jensen et al. 2011) as a way to think about multiplicities while still recognising that ‘there exists no single, stable, underlying nature on which all actors have their perspectives’ (Ibid. 15). In this paper, I want to use these ideas in order to avoid one pitfall: the depiction of biohackers as a coherent whole that is able to be summated according to the different parts and comparisons reported in this article. In other words, the comparisons made can only be ‘partially connected’. I will thus refrain from taking an analytical view ‘from above’, one that is detached from what takes place ‘on the ground’. Instead, I will follow the actors themselves and consider their comparisons and knowledge claims to be valid and legitimate. In the remainder of this paper, I look in turn at four comparisons of biohackers (Steve Jobs, punks, amateurs, and terrorists). I will think with biohackers about comparison, rather than think about biohackers’ comparisons. In doing so, I not only seek to examine what comparisons do and produce, but I will also be reflexive and critical about my own previous research.


'Freezing as Freedom? A Regulatory Approach to Elective Egg Freezing and Women's Reproductive Autonomy' by Vanessa Gruben in (2017) 54(3) Alberta Law Review comments
This article reviews concerns relating to the safety and efficacy surrounding the medical practice and social impacts of the increasingly popular practice of elective egg freezing. It argues that current regulation is inadequate to ensure this technology promotes women’s autonomy and to ensure women are receiving safe and high quality reproductive health care. It concludes by identifying three priority areas where specific regulation is required: information collection and disclosure, informed consent and fertility education, and assessment and counselling. 
 Gruben's 'Donor Anonymity in Canada: Assessing the Obstacles to Openness and Considering a Way Forward' in the same issue discusses
donor anonymity in Canada and the need for law reform in this area. Currently, assisted reproduction is regulated by both the provincial and federal governments, meaning this area is regulated in a piecemeal fashion. Disclosure of donor identifying and non-identifying factors is restricted to limited information, utilized only to keep statistical records. Due to the law limiting identifying information, donor-conceived persons struggle in their attempt to discover their genetic origins. Further, provincial family law does not recognize third party reproduction, which leaves modern family units unprotected. A definition of openness in gamete donation is given in Part II. Part III addresses the law-making and assisted reproduction difficulties arising from the division of powers. Part IV analyzes the potential impact of federal prohibitions on the purchase of sperm and eggs and whether disclosing a donor’s identity will negatively impact gamete supply in Canada. The final two sections discuss the failure of provinces to enact family laws which protect the parental status of intended parents and how past cases under the Canadian Charter of Rights and Freedoms have been challenging for donor-conceived persons. The authors propose that reform should be dealt with by the legislature in four areas: provincial family law reform where necessary; robust and meaningful public consultation; interprovincial cooperation if possible; and, consideration of law reform in other jurisdictions.


'Compensation for Breach of the General Data Protection Regulation' by Eoin O'Dell comments
Article 82(1) of the General Data Protection Regulation (GDPR) provides that any "person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered". As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages. 
The first part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and concludes that it is not clear that Article 82(1) GDPR is directly horizontally effective though the Court (eventually, if and when it is asked) is likely to interpret it broadly. This means that the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The second part of this article compares and contrasts the compensation provisions in the Irish government's General Scheme of the Data Protection Bill 2017 with existing legislation, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed. 
Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.
'The Dynamic Effect of Information Privacy Law' by Ignacio Cofone in (2017) 18 Minnesota Journal of Law, Science and Technology 517 argues
Discussions of information privacy typically rely on the idea that there is a tradeoff between privacy and availability of information. But privacy, under some circumstances, can lead to creation of more information. In this article, I identify such circumstances by exploring the ex ante incentives created by entitlements to personal data and evaluating the long-term effects of privacy. In so doing, I introduce an economic justification of information privacy law.
Under the standard law and economics account, as long as property rights are defined and transaction costs are low, initial right allocations should be irrelevant for social welfare. But initial allocations matter when either of these two conditions is absent. Allocations also matter for production of goods that do not yet exist. Personal information has these characteristics. While the costs of disseminating information are low, transaction costs to transfer an entitlement over it are not. In addition, availability of information requires disclosure – and thereby imposes costs. This analysis challenges the traditional economic objection to information privacy and provides a new justification for privacy rules by casting them as entitlements over personal information.
The approach I develop here provides a framework to identify which types of information ought to be protected and how privacy law should protect them. To do so, it analyzes the placement and optimal protection of personal information entitlements while also examining the commonalities between information privacy and intellectual property. At a more abstract level, it sheds light on the desirability of a sectoral versus an omnibus information privacy law.

Cats Pyjamas

Slow news day? The ABC features an item on biopunk Mr Meow-Ludo Disco Gamma Meow-Meow (formerly Stuart McKellar), under the heading 'Sydney man has Opal card implanted into hand to make catching public transport easier'.

The item states
If you have ever been caught fumbling for your Opal card at the ticket gate, a Sydney man may have found the solution. He had the chip from an Opal card inserted into his hand and is now tapping on using the technology that is implanted underneath his skin. 
Bio-hacker Meow-Ludo Disco Gamma Meow-Meow, his legal name, had the Opal near-field communication (NFC) chip cut down and encased in bio-compatible plastic, measuring 1 millimetre by 6 millimetres. He then had the device implanted just beneath the skin on the side of his left hand. 
"It gives me an ability that not everyone else has, so if someone stole my wallet I could still get home," he said. He is able to use the Opal just like other users, including topping the card up on his smartphone. However, his hand needs to be about 1 centimetre from the reader, closer than traditional cards, and he sometimes needs to tap more than once, due to his device's smaller antenna. 
"My goal is to have frictionless interaction with technology," he said.
Mr Meow-Meow had his device implanted by a piercing expert, in a procedure lasting approximately one hour.  He warned others not to do the same without expertise and research. "Most certainly don't try this at home unless you know what you're doing," he said. 
Mr Meow-Meow said there was a risk of bacterial infection whenever anything was implanted beneath the skin, so it was important to consult professionals. "Be aware of the risks involved and make a wise judgement based on that." 
He also said his actions were a breach of Opal's terms of service, which prohibit tampering. "It will be really interesting to see what happens when the first transit officer scans my arm," he said.
The  officer might be more impressed by Mr Meow-Meow's given and surnames, which gained some attention when he stood for parliament.

Last year Bloomberg reported
If your name is Meow Meow, there’s a decent chance you’re an unusual dude. This holds true for Meow-Ludo Disco Gamma Meow-Meow, a polyamorous, trans-humanist bio-hacker in Sydney. In 2014, Meow Meow opened Australia’s first do-it-yourself bio-hacking lab, in which anyone could pay a membership fee to experiment with DNA and make whatever creatures they could imagine.
For people familiar with the VeriChip controversy there is more bite in 'Towards insertables: Devices inside the human body' by Kayla Heffernan, Frank Vetere and Shanton Chang in (2017) 22(3) First Monday

Platforms and Polanyi

'Law for the Platform Economy' by Julie Cohen in UC Davis Law Review (Forthcoming) comments
This article explores patterns of legal-institutional change in the emerging, platform-driven economy. Its starting premise is that the platform is not simply a new business model, a new social technology, or a new infrastructural formation (although it is also all of those things). Rather, it is the core organizational form of the emerging informational economy. Platforms do not enter or expand markets; they replace (and rematerialize) them. The article argues that legal institutions, including both entitlements and regulatory institutions, have systematically facilitated the platform economy’s emergence. It first describes the evolution of the platform as a mode of economic (re)organization and introduces the ways that platforms restructure both economic exchange and patterns of information flow more generally. It then explores some of the ways that actions and interventions by and on behalf of platform businesses are reshaping the landscape of legal entitlements and obligations. Finally, it describes challenges that platform-based intermediation of the information environment has posed for existing regulatory institutions and traces some of the emerging institutional responses.
Cohen's 'Property and the Construction of the Information Economy: A Neo-Polanyian Ontology' in Leah Lievrouw and Brian Loader (eds) Handbook of Digital Media and Communication (Routledge, forthcoming) comments
This chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons. Cohen, Julie E,


'The Political Economy of Celebrity Rights' by Mark Bartholomew in Whittier Law Review (Forthcoming) comments
This essay discusses how the right of publicity became such a robust property right — much more far-reaching than analogous rights in copyright or trademark. One cannot explain the accretion of celebrity publicity rights as a matter of legal logic or simple reaction to the growing economic value of celebrity endorsements. Instead, the essay explains the right's expansion from the perspective of political economy. Critical innovations to the right of publicity occurred in the particular political environment of the 1980s and 1990s. Despite some groups' resistance to new, specialized entitlements for celebrities, the conditions were right for a particular coalition of interest groups to push through new vigorous interpretations of the right of publicity. I also discuss the right's expansion from the perspective of a different political actor: judges. At the end of the twentieth century, the political optics of celebrity changed in a way that provided more comfort for judges who were once hostile to the anti-democratic implications of publicity rights. Judges confronted a changing social definition of celebrity that was no longer linked to merit or inner greatness. Anyone, it was now argued, had the potential to become famous. This change in the meaning of fame made celebrity legal protections seem less like a perk for a rare few and more like a fundamental right available to all.
'The Present of Newsworthiness' by Amy Gajda in (2016) 50 New England Law Review 145 comments
In early February 2016, less than a week before this Book Symposium, the Utah Supreme Court decided that the photographic results of a woman’s plastic surgery were not necessarily newsworthy. The decision may seem inconsequential at first. The plaintiff had an abdominoplasty and breast augmentation and agreed that photos be taken “for medical, scientific or educational purposes.” Fox News later aired partially redacted photographs of her nude body and post-operative state in a news story about the benefits and risks of plastic surgery. The plaintiff settled with Fox, but filed a privacy-based lawsuit against her plastic surgeon. The Utah Supreme Court heard the case after a trial court dismissal and decided That the plaintiff’s privacy tort claims should continue. As regarding publication of private facts, the tort most relevant to this Symposium Paper, the court decided for the first time that such claims should include a newsworthiness element and defined the element in line with the Restatement (Second) of Torts. News, the court wrote, “is a concept that has essentially been defined by traditional publishers and broadcasters, ‘in accordance with the mores of the community.’” Therefore, in Utah, if a truthful news item is newsworthy, but privacy-invading, the newsworthiness of the information can trump the plaintiff’s privacy interests.

23 June 2017

Medications and Marketing

Quarantining the quack medicines? The interim report of the Review of Pharmacy Remuneration and Regulation features the following summary
This Interim Report presents the Panel’s key findings and a series of options – or possible reform paths – for stakeholders to consider.
In essence, this Interim Report continues the conversation flowing from the release of the Review of Pharmacy Remuneration and Regulation Discussion Paper in July 2016, which resulted in more than 500 submissions to the Review.
The options for reform presented throughout this report have consolidated issues raised within the submissions and other feedback as well as primary evidence gathered from work specifically commissioned by the Review.
The report and its options capture a broad range of thoughts and ideas surrounding reform but do not discuss specific issues of implementation. Although this review has not been concerned with the specifics of implementation, the Panel welcomes and encourages further submissions that provide additional insight into such matters where considered appropriate.
This Review is primarily consumer focused and, while the viability and sustainability of an effective community pharmacy network is a key consideration, the Panel has also sought to identify services and programs that are of benefit and the consumer ultimately values.
It is important that consumers can easily access information about the services offered by community pharmacies. The Panel presents options to improve consumers’ access to information. This is an important step toward improving services and the equity of medicine access.
Consumers self-select the pharmacy model that best suits their needs. This should continue to ensure a viable and vibrant pharmacy network. However, consumers also need, and expect, consistent minimum levels of service from all community pharmacies.
This includes community pharmacy providing consumers with professional advice on complementary medicines. To avoid potential harm, or the confusion between the efficacies of different types of medicines, pharmacists need to be easily accessible to give needed advice when consumers choose a complementary or pharmacy-only medicine.
The Panel considers that the implementation of technology and mechanisms to support the use of electronic prescriptions and electronic medical records is overdue. While recognising that governments and industry are working to implement technology enablers, the first step needs to be about timely recognition of an electronic script as a valid prescription record for legislative and Pharmaceutical Benefits Scheme (PBS) purposes.
The Panel has noted some good practices and initiatives across the broader health sector in this regard, including improved communication and synergies between hospital and community pharmacies. Nevertheless, there still remain significant opportunities to improve services and reduce medicine-related risks for patients moving between healthcare settings.
The Panel’s strategic vision is the continued development of an innovative, sustainable community pharmacy network that is adaptive to the inevitable changes occurring in health care.
Emphasis must therefore be on remuneration which rewards efficient pharmacy operations while enabling appropriate payment for providing all consumers with equitable access to PBS medicines, consistent with the National Medicines Policy. Remuneration based on the efficient costs of dispensing within a best-practice pharmacy is appropriate and ensures a fair and equitable use of government funds while safeguarding the variety of business models that exist today.
These efficient costs are tied to the delivery of core services by the pharmacist for the supply of PBS medicines and related services as needed by the consumer. In order to establish an appropriate level of remuneration for community pharmacy, government needs information about the costs of these core services. At present, these costs and their associated value are difficult to determine, as the accounting information required to inform decision-making at this level is not being made available to government. Increased transparency in the use of these public funds is therefore strongly supported by the Panel.
Few, if any, submissions to the Review approved of all aspects of the current location rules. The Review notes the 2014 National Commission of Audit and the Competition Policy Review (the Harper Review) in 2015, which recommended the removal of these rules. Options for the removal and/or replacement of the location rules are presented in this Interim Report.
In a federation like Australia, there will often be variation in rules across the country. However, the variations in relevant legislation between states and territories are causing undue administrative burden for pharmacists and confusion for some consumers, especially those travelling between jurisdictions. Improving regulatory arrangements will help to ensure nationally consistent services for all consumers, better align services with consumer access, and increase innovation in community pharmacy while reducing barriers to entry.
While advances in medicines are always welcomed, the escalating cost of their listing on the PBS could serve to compromise current supply arrangements. For example, the increasing prevalence of high-cost medicines listed on the PBS, and their associated terms of trade, has challenged the ability of many community pharmacies to supply these medicines. The Panel considers that the risks to pharmacies in supplying high-cost medicines may be better managed by placing an upper limit on wholesale payments made by community pharmacists.
The remuneration and regulation for the wholesale supply of PBS medicines can also be improved. The options presented by the Panel remove unnecessary regulation and focus medicine distribution on the suppliers, who have the strongest incentives to ensure that consumers can access their medicines. The options will improve the effectiveness and accountability for the public funds used to support wholesaling and establish clear base-level terms of trade for community pharmacy. The Panel notes that successive Community Pharmacy Agreements (CPA) have led to important improvements in the engagement of community pharmacy. But they have also limited improvement in some areas. The CPA remains an appropriate mechanism to discuss and agree on the delivery of PBS medicines through community pharmacy. However, all the parties responsible for the major components of that delivery need to be represented as signatories to the agreement.
This is currently not the case, and the Panel considers that future agreements should be extended to include broader sector and consumer health representation. The Panel notes the many bodies which have claimed to be representative of pharmacy and/or pharmacists across the country. These bodies have challenged the notion that community pharmacy models currently operating in Australia are all represented appropriately, in CPA negotiations to date, to ensure integration and coordination across the pharmacy profession.
National policy includes the integration and financing of community pharmacy as a primary health focus on patient outcomes delivered through safe and effective pharmaceutical care.
Across the broader health policy and systems management, there is a need for wider presence of community pharmacy input and, conversely, a wider representation of pharmacy and consumer leadership is required.
The Panel notes that community pharmacy in the longer term will necessarily be led across various private and professional bodies with various agendas, and the challenge for government will be to coordinate agreements with a number of representatives to ensure that public access and health priorities are managed effectively. The Panel also considers that the CPA is not the right mechanism to negotiate and agree on programs and services that are not directly related to the delivery of PBS medicines. Such services are more appropriately agreed separately between the government and the relevant key stakeholders and funded on their own merits and evidence base. For example, the Panel has noted that pharmacies provide many valuable programs and services that are either not funded or underfunded, and the Panel considers these merit separate negotiation and agreement outside the CPA.
Ensuring that Aboriginal and Torres Strait Islander people have timely and affordable access to PBS medicines and medication management support services remains a priority that underpins the desire to improve access and affordability in remote locations.
The Panel recognises the benefits of programs such as the Closing the Gap PBS Co-Payment Measure. However, such programs need to be properly integrated to ensure that the program benefits follow the individual, regardless of where their prescription is written or dispensed. The Panel also considers that the ability for an Aboriginal Health Service to employ pharmacists and operate a pharmacy should be trialled to see if it improves services and outcomes for Indigenous Australians.
This Interim Report further presents options for consideration in relation to:
  • current complexities and administrative inefficiencies with the section 100 Highly Specialised Medicines program 
  • fees paid by the government for the compounding of chemotherapy medicines which meet minimum safety and quality standards 
  • use of mechanisms such as machine dispensing to improve access to medicines and related advice in remote communities.
The Panel re-emphasises that the options and alternatives presented in this Interim Report are not designed to address potential implementation issues. They are options for reform.The Panel notes that the Australian Government’s 2017–18 Budget contained a range of decisions that affect elements of this Review. These decisions impact upon a number of community pharmacy programs and the pharmacy location rules.
The Interim Report presents options to replace or modify the pharmacy location rules. However, given the Government’s recent commitment to continue the current location rules, the Panel considers that its options to replace the current location rules are no longer immediately relevant to this Review. While they are included in the Interim Report for the sake of transparency around the Panel’s consideration of the issue, they will not be presented in the Final Report.
However, the Panel will continue to consider the options presented to modify the location rules that have been put forward on the assumption that the current location rules will be retained.
The Panel therefore welcomes further discussion through the submission of new evidence and additional insights in relation to what community pharmacy should look like in the future. This will be important for informing the Panel’s recommendations to be presented in the Review’s final report.
Part 3.5 regarding Homeopathic Products states
There are unacceptable risks where community pharmacies are allowed to sell homeopathic products.
While most stakeholders supported the continued sale of complementary medicines in community pharmacy, the practice of homeopathy and sale of homeopathic products did not receive such support. In 2015 the National Health and Medical Research Council (NHMRC) conducted an assessment of the evidence of efficacy of homeopathy and concluded:
“Based on the assessment of the evidence of effectiveness of homeopathy, NHMRC concludes that there are no health conditions for which there is reliable evidence that homeopathy is effective. Homeopathy should not be used to treat health conditions that are chronic, serious, or could become serious. People who choose homeopathy may put their health at risk if they reject or delay treatments for which there is good evidence for safety and effectiveness.”
The general consensus as demonstrated by submissions to the Review and the Panel’s face-to-face consultations is that homeopathy and homeopathic products do not belong in community pharmacies. The majority of pharmacists and other stakeholders argued that these products lack any evidence base and have sufficient evidence of non-efficacy to preclude their ethical sale in community pharmacies.
This is supported by the public positions of professional pharmacy bodies – for example, the PSA, whose Position Statement on Complementary Medicine states: “PSA does not support the sale of homeopathy products in pharmacy.”
The only defence put to the Panel regarding homeopathy was that it was harmless and able to be used as a placebo in certain circumstances. The Panel does not believe that this argument is sufficient to justify the continued sale of these products in pharmacies that supply PBS medicines.
In particular, the Panel notes that the supply of homeopathic products through pharmacies is not benign but, rather, risks creating a perception of reliability and efficacy in the mind of the consumer based on the status of the pharmacy as a healthcare provider. This may encourage patients to choose a homeopathic product over a conventional medicine with robust evidence of efficacy, which creates a risk of harm to the patient’s health.
Homeopathy and homeopathic products should not be sold in PBS-approved pharmacies. This requirement should be referenced and enforced through relevant policies, standards and guidelines issued by professional pharmacy bodies.
In considering complementary products the interim report states
Consumers value access to complementary medicines in the community pharmacy setting, where they can receive advice on their selection and use that is backed by an appropriate level of evidence.
The Review’s consultation process has clearly demonstrated that consumers expect access to complementary medicines in their local pharmacy.
It is also clear that consumers value pharmacist advice to support their selection and use of complementary medicines. Research undertaken by Hall and Partners concluded:
“The inclusion of complementary medicines and treatments (primarily thought of as vitamin and mineral supplements) in pharmacies attracts majority support among Australian consumers, most of whom want to access these products in pharmacy. This result is unsurprising given the current Australian health climate that reflects a widespread belief in complementary medicines or treatments as a part of managing one’s health, based on the influence of doctors, health experts, spokespeople, media and word of mouth. Consumers rely on pharmacists to help them understand whether certain complementary medicines are safe to take with their pharmaceutical medicine.”
Community pharmacy owners expressed similar views in the submissions to the Review. They were overwhelmingly supportive of complementary medicines continuing to be sold in community pharmacy, as patients have the opportunity to seek advice from, or be referred to, a pharmacist.
This includes advice on the evidence base relating to the product, advice on whether the product is appropriate for that patient, advice on potential adverse reactions with other medications and referral to a general practitioner where appropriate.
There was also a strong focus on the importance of quality advice being available for consumers, as demonstrated by the following submission:
“Complementary medicines will continue to be sold whether or not they are ranged in pharmacy. However the pharmacy is a controlled environment where advice can be easily obtained.
While most complementary medicines are safe there are some that can have adverse consequences if taken with the wrong prescription medicines. The pharmacy is the right place for consumers to determine how to best use complementary medicines from trained healthcare professionals.”
Many pharmacy owners and pharmacists emphasised their support for the consumer’s right to choose when it comes to managing their health needs. This includes the use of complementary medicines alongside traditional pharmacy medicines.
A submission from Move Muscle, Bone and Joint Health explained that many consumers expect their pharmacist to play a supporting role in when obtaining complementary medicines:
“the use of complementary medicines in conjunction with pharmaceutical compounds is very common for muscle, bone and joint conditions. Further, many people using complementary medicines do not discuss this with their doctors. Sabanovic et al found that people with chronic pain often used a combination of prescribed, off the shelf and complementary medications to manage their pain.
Pharmacy has an opportunity to bring together patients’ experiences and preferences, to discuss possible interactions and to provide advice. As there are significant poly-pharmacy risks between prescribed, off the shelf and complementary medications, prohibiting businesses from providing the range of options is counterintuitive.”
In general, stakeholders put forward the view that pharmacists perform a valuable role in advising consumers on complementary medicines. However, there is some concern relating to the sale of products with a limited evidence base, or none at all, alongside prescription and other scheduled medicines.
The Hall and Partners’ consumer research noted:
“The presence of these products within the pharmacy environment does, to some extent, allow complementary medicines to borrow some of the clinical trust placed in the pharmacy. However, this research finds no evidence to support the view that their presence in turn negatively impacts clinical trust in the pharmacist. If pharmacies are to supply complementary medicines, this brings with it a consumer expectation these products have been selected for their health benefits and that staff will be able to provide related product advice – especially about possible interactions or side effects.”
However, Dieticians Association Australia contradicted these assertions, suggesting: “it is confusing for patients if non-evidence based therapies are sold alongside prescription medicines. It is reasonable to expect that pharmacists manage any conflicts of interest and provide evidence based advice to consumers, but it is difficult to see how this can be realised in a retail environment in which evidence based and non-evidence based products are collocated.”
The Panel agrees with the above comments and remains concerned that the sale of complementary medicines alongside other medicines may mislead consumers. It therefore concludes that complementary medicines should be held in a separate area within community pharmacies, where customers can easily access a pharmacist for appropriate advice.
The Panel notes that complementary medicines encompass a wide range of products generally considered useful for health maintenance and enhancement. This extends to a range of products with a history of use based on cultural and traditional values.
The Panel also noted that the current Therapeutic Goods Administration (TGA) pre-market approval process for the listing of complementary medicines on the Australian Register of Therapeutic Goods (ARTG) is based on assessment of a lower level of evidence than that for registered medicines.
Complementary medicines listed on the ARTG are subject to specific requirements relating to the level of therapeutic claim made for each product, the ingredients which it may contain and the facilities and standard to which the product is manufactured. The Panel also notes that no assessment of efficacy is made as part of the TGA listing process.
Although the sponsor (or manufacturer) of a complementary medicine is required to hold evidence of the efficacy of that product for its approved indication, this evidence is not assessed by the TGA prior to listing on the ARTG.
The Panel considers that limited consumer understanding of the TGA approval process for complementary medicines coupled with the availability of these products through community pharmacy can give rise to unsubstantiated expectations of the efficacy or medical benefits offered by these products.
The Panel notes that the recent Review of medicines and medical devices regulation (2015) made a range of recommendations relating to the regulation of complementary medicines. It was suggested that two further reviews be undertaken to potentially streamline the regulatory framework for low-risk products and increase consumer access to the products. Significantly, the TGA’s February 2017 public consultation paper, Reforms to the regulatory framework for complementary medicines: Assessment pathways, notes that:
“A critical issue in the use of listed complementary medicines is to ensure that they are suitable for self-selection by consumers and that the information provided with the medicine supports consumer health decisions.”
Clearly, community pharmacists can play a valuable role in advising consumers on the potential health benefits or dangers of using complementary medicines. The Panel remains concerned that consumers may be misled about the value of complementary medicines in the absence of appropriate evidence-based advice at the point of sale. In this context, the TGA’s actual role in the approval process for complementary medicines may be misunderstood by consumers, who may be likely to believe that that role is much broader than what occurs.
The Panel therefore considers that community pharmacies should provide consumers with information on any limitations noted by the TGA over the medical efficacy of these products. This could be achieved through the provision of appropriate signage near the sale of these products which clearly informs on the relevant TGA limitation.
Community pharmacists are encouraged to: a. display complementary medicines for sale in a separate area where customers can easily access a pharmacist for appropriate advice on their selection and use b. provide appropriate information to consumers on the extent of, or limitations to, the Therapeutic Goods Administration (TGA) role in the approval of complementary medicines. This could be achieved through the provision of appropriate signage (in the area in which these products are sold) that clearly references any limitations on the medical efficacy of these products noted by the TGA.

22 June 2017


The New Zealand Law Commission has released the 212 page report of its review into the laws of contempt of court: Reforming the Law of Contempt of Court: A Modern Statute - Ko te Whakahou i te Ture mō Te Whawhati Tikanga ki te Kōti: He Ture Ao Hou.

The Commission states that
The law of contempt of court will be unknown to many people. Yet it is important law because it provides the ultimate sanction of imprisonment for those who seek to prevent the justice system from operating fairly, effectively and expeditiously. The law of contempt of court ensures:
  • court hearings are not disrupted; 
  • trials are not prejudiced by unfair publicity; 
  • jurors decide cases only on lawfully admitted evidence; 
  • judgments and court orders are enforced; and 
  • the judiciary is protected as far as practicable from false and egregious attacks which undermine public confidence in its independence, integrity and impartiality.
All of these outcomes are essential in a constitutional democracy such as New Zealand. They are all part of the rule of law which New Zealanders expect will underpin the administration of justice and which will apply to everyone, including Parliament and the government of the day.
Without these outcomes New Zealand’s standing as a country with an enviable justice system, a judiciary of high standing and an absence of corruption would be at risk.
There are increasing signs, especially in this digital age, of people “thumbing their noses” at the rule of law, including examples of court hearings being disrupted, online publicity unfairly prejudicing trials, jurors googling information, people failing to comply with court orders, and false and egregious attacks on the judiciary going unanswered.
When it comes to the publication of information unfairly prejudicing trials and false attacks on the judiciary, it is important to recognise that such publications are not protected by the right to freedom of expression.
Freedom of expression is of course an important right in New Zealand affirmed by the New Zealand Bill of Rights Act 1990. But it is not an absolute right.
The New Zealand Supreme Court has held the right to a fair trial may be more important. Fair trials may be prejudiced by the publication of information about a defendant and by jurors discovering information online which is not part of the evidence at the trial.
Similarly, the publication of false attacks that undermine public confidence in the judiciary may be in contempt of court. The right to freedom of expression does not protect the publication of untrue factual allegations and opinions based on them
It accordingly recommends modernising the laws of contempt, commenting
Contempt laws protect the justice system, including a defendant's right to a fair trial. The law in this area has evolved in a piecemeal fashion throughout its long history, which has resulted in a lack of certainty. Contempt laws are increasingly antiquated and inappropriate in our modern society. They predate the digital-age and need to be updated to address these technological developments. 
The Commission accordingly recommends a new statute - the Administration of Justice (Reform of Contempt of Court) Act - to replace common law with new offences, new enforcement provisions and new processes.

Specific recommendations include -
  • Clearer statutory rules governing the publishing of information on an arrested person’s previous convictions and concurrent charges 
  • New statutory powers allowing the courts to make temporary suppression orders postponing publication of information that poses a real risk of prejudice to an arrested person’s fair trial. 
  • A new statutory offence to replace the common law contempt of publishing information where there is a real risk that the publication could prejudice a fair trial. 
  • A new standardised procedure for dealing with disruptive behaviour in the courts that interrupts proceedings and interferes with a court’s ability to determine the proceedings effectively and efficiently. 
  •  A new offence to replace common law contempt where a member of a jury investigates or researches information which he or she knows is relevant to the case. 
  • The antiquated contempt of scandalising the court should be abolished. 
  •  A new offence of publishing untrue allegations or accusations against the judiciary when there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or courts.

Hutt again goes phutt

My doctoral dissertation features a discussion of the legal status of sovereign citizens - recall Ulysses &  Child Support Registrar [2007] FamCA 1395, [7], McKinnon v R [2005] NZCA 94, [6], Robert Mcjannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRComm 1111, [14] and Van den Hoorn v Ellis [2010] QDC 451, [2] - and of pseudo-states such as Atlantium, Camside and the Hutt River Principality or notables such as the Duke of Avram (who modestly proclaimed he was Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, Cardinal and Archbishop of the Royal See of the Continent of Australia).

I was accordingly amused but unsurprised to see the Western Australia Supreme Court judgment in Deputy Commission of Taxation v Casley [2017] WASC 161 last week.

 Le Miere J states
In CIV 3132 of 2016 the plaintiff, the Deputy Commissioner of Taxation, claims against the defendant, Leonard Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2013. Leonard Casley has entered a conditional appearance and applied for an order that the writ of summons be set aside 'for reasons of jurisdiction'. The Deputy Commissioner has applied for summary judgment.
In CIV 1603 of 2017 the Deputy Commissioner claims against Arthur Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2012. Arthur Casley has applied for an order that the writ of summons be set aside on the ground that the court does not have jurisdiction to hear the claims. The Deputy Commissioner has applied for summary judgment. ...
Each of the defendants has filed an affidavit and written submissions and made oral submissions to the effect that the court does not have jurisdiction over the defendant or to hear the matter because they are the sovereign of, or citizen of, the Hutt River Province which is an independent sovereign state. That argument has no legal merit or substance. Anyone can declare themselves a sovereign in their own home but they cannot ignore the laws of Australia or not pay tax.
Each of the defendants advances the pseudo legal straw man argument. The straw man argument has no legal merit or substance. Leonard Casley advances an argument based on the Hutt River Province being the political and financial branch of the church of Nian. That argument has no legal merit or substance. The defendants have made other assertions in their affidavits and submissions which are irrelevant and raise no defence to the claims against them. In each action the defendant has no defence to the claims by the Deputy Commissioner. In each action judgment will be entered in favour of the Deputy Commissioner against each defendant.
The  judgment states
The jurisdiction argument - secession
11 Each of the defendants asserts that the court has no jurisdiction over them or no jurisdiction to hear these claims. In essence, they say that the land on which they reside is part of the Principality of Hutt River which seceded from Australia and is no longer part of Australia, that they are the sovereign or a citizen of Hutt River, a sovereign independent state, they are not residents of Australia, the laws of Australia and in particular the taxation laws do not apply to them and this court has no jurisdiction over them.
12 In 1970 Leonard Casley was a wheat farmer. He was aggrieved by the wheat quotas allocated to his business. He served a notice of secession on the Western Australian Premier, the Governor, the Prime Minister and the Governor General. He also notified the Queen. Since then he has taken other steps which he believes are the acts of an independent sovereign state including declaring war on Australia. He is convinced that, in taking these steps, he succeeded in separating Hutt River from Australia.
13 Covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution Act) relevantly provides: This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State ... This court is bound by and to give effect to the Constitution Act and to any law made by the Parliament of the Commonwealth under the Constitution, including the TAA.
14 In 2007 Leonard Casley applied to the High Court to remove two sets of proceedings from the Geraldton Magistrates Court to the High Court under s 40 of the Judiciary Act 1903 (Cth). Each of the proceedings related to offences of not filing taxation returns. The applicants contended that they reside in the so called Hutt River Province and that that is not part of Australia and not subject to Australian taxation laws. In dismissing their applications Heydon J said:
The arguments advanced by the applicants are fatuous, frivolous and vexatious: Casley v Commissioner of Taxation [2007] HCA Trans 590.
The observations of Heydon J are apt to describe the arguments advanced by the defendants in this case.
Jurisdiction - Straw man
15 In an affidavit filed by Leonard Casley he swore:
I am the Real Man, Leonard George Casley born at Kalgoorlie Western Australia on 27 August 1925. Upon the registration of my birth certificate, it is claimed that I became a ward of the state. Owing allegiance to the Monarch, under contract and the Monarch undertakes the protection of myself and my property. ... I am Leonard George Casley, a real man not a straw man. The Straw Man is a fictitious body, which does not exist, but is that which is controlled by the State, and the State's judiciary.
An affidavit filed by Arthur Casley contains similar statements. This appears to be a variant of the strange pseudolegal straw man theory. The theory holds that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man. The idea is that an individual's debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations, conveniently allowing one to escape their debts and responsibilities. It is all gobbledygook.
Jurisdiction - church of Nain
16 Leonard Casley referred to the establishment of the church of Nain. In a document filed in the court Mr Casley said that the Hutt River Province Principality is the political and financial branch of the church of Nain. In answer to a question from the court Mr Casley referred to s 116 of the Constitution which precludes the Commonwealth from making laws for establishing any religion, imposing any religious observance or prohibiting the free exercise of any religion. It has nothing to do with the defendants' liability to pay tax.
Other matters advanced by defendants
17 In affidavits and submissions filed by the defendants they made numerous other statements irrelevant to the issues before the court. They range from the merely irrelevant to the bizarre, such as the statement that the ATO has been utilising a form of torture known as 'Old Hags Nagging'. It is not sensible or a proper use of judicial resources to recite and analyse all of the defendants' utterances masquerading as legal submissions. It is sufficient to say that none of them raises a defence to the Deputy Commissioner's claims or any reason why there ought to be a trial of the claims.
18 The defendants have not made out any of their assertions that the court does not have jurisdiction over them or jurisdiction to hear the plaintiff's claims. The application of each of the defendants to set aside the writ will be dismissed.

Theory and Realists

'The Rise and Fall of Private Law Theory' by Steve Hedley in (2018) Law Quarterly Review comments
Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse ‘grand theories’ is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be reformed or improved. Trust in collective institutions, as well as in individuals, is ubiquitous in all modern societies – rightly so, necessarily so – and as this is more widely appreciated, these grand theories are progressively losing their distinctive character as their better points are absorbed back into mainstream legal thinking.
'The Return of Legal Realism' by Dan Priel in Markus D Dubber and Christopher Tomlins (eds) The Oxford Handbook of Historical Legal Research (Oxford University Press, 2018) comments
The main goal of this essay is to explain in what sense ‘we are all realists now’. It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view ‘realistic’. One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.


The Design, scope, cost-benefit analysis, contracts awarded and implementation associated with the Better Management of the Social Welfare System initiative report by the Senate Standing Committee on Community Affairs offers the following recommendations
Recommendation 1
6.9 The committee recommends the Online Compliance Intervention (OCI) program should be put on hold until all procedural fairness flaws are addressed, and the other recommendations of this report are implemented. If these issues are addressed, the OCI should only be continued in its new form after the new One Touch Payroll system is implemented in 2018.
Recommendation 2
6.10 The committee strongly recommends that the rollout of a redesigned system must include a robust risk assessment process, which includes consultation with relevant expert stakeholders.
Recommendation 3
6.11 The committee recommends that all people who have had a debt amount determined through the use of income averaging should have their debt amounts re-assessed immediately by a team of departmental officers with specialist knowledge of the Online Compliance Intervention program, using accurate income data sourced from employers. This re-assessment must include the full range of unpaid, partially paid and fully paid debts incurred by current income payment recipients and those debts outsourced to debt collection agencies.
Recommendation 4
6.14 The committee recommends all data-matching guidelines and protocols be adhered to, including the Data-matching Program (Assistance and Tax) Act 1990, regardless of whether the department is using tax file numbers. This will require the department to halt the Online Compliance Intervention process while steps are taken to ensure compliance with all mandatory and voluntary provisions. Adherence to these provisions should be verifiable by the public in order to maintain trust in the social security system.
Recommendation 5
6.15 The committee recommends the department update its privacy policy to ensure that it does not publicly release sensitive information it holds about individuals, for any reason.
Recommendation 6
6.16 The committee recommends the department resume full responsibility for calculating verifiable debts (including manual checking) relating to income support overpayments, which are based on actual fortnightly earnings and not an assumed average.
Recommendation 7
6.18 The committee recommends the department review all debt cases where the 10 per cent recovery fee was automatically imposed, and in line with procedural fairness, allow each person a fully-informed opportunity to apply to have the debt recovery fee waived.
Recommendation 8
6.19 The committee recommends personal or technical barriers to communication which impacted an individual's ability to undertake income reporting, should be included in the reasonable excuse framework for waiving the debt recovery fee.
Recommendation 9
6.21 The committee recommends Accessible Information, in particular Easy English versions, be made available in all debt recovery programs, including online portals. The committee strongly recommends this should be a whole-of-department change, to ensure that producing Accessible Information versions of all Centrelink communications material become standard operating procedure.
Recommendation 10
6.22 The committee recommends the department ensure that in the re-design of the Online Compliance Intervention system, if it continues, the new system has the necessary protocols to protect vulnerable cohorts, including people experiencing mental health issues. The committee strongly recommends this should be a whole-of-department change, including reconvening the Consumer Consultative Group, the Service Delivery Advisory Group and the Mental Health Advisory Working Party.
Recommendation 11
6.23 The committee recommends that the department provide all Online Compliance Intervention participants with the debt calculation data required to be assured any debts are correct.
Recommendation 12
6.24 The committee recommends the Department of Human Services be adequately resourced to implement all recommendations of this report, and to improve the level of service provided to Centrelink recipients. In particular, the committee recommends increased investment in communication channels and staff, to ensure calls are answered in a more timely manner. The committee strongly recommends this as a whole-of-department change.
Recommendation 13
6.29 The committee recommends that clear and comprehensive advice on the internal and external reassessment, review rights and processes are made available to all Online Compliance Intervention-impacted individuals.
Recommendation 14
6.30 The committee recommends that clear and comprehensive advice on the ability to seek an extension of time to provide income documentation is made available to all Online Compliance Intervention-impacted individuals.
Recommendation 15
6.31 The committee recommends that community legal service funding be reviewed in the next budget, to ensure community legal services are able to meet the community need for legal advice relating to Online Compliance Intervention matters.
Recommendation 16
6.32 The committee recommends the operating budgets for the Administrative Appeals Tribunal be reviewed to plan for an increased workload on Online Compliance Intervention-related matters, to ensure these cases are progressed within appropriate timeframes.
Recommendation 17
6.33 The committee strongly recommends that an outstanding debt should not exclude a person from advance payments needed for essential goods and services.
Recommendation 18
6.36 The committee recommends the department voluntarily undertake to be bound by all debt collection and consumer law legislation and guidelines, and ensure regular external scrutiny to ensure compliance. This should explicitly include the actions of external contractors working on behalf of the department.
Recommendation 19
6.37 The committee recommends the department ensures an independent review of internal and external debt collection practices is undertaken, to ensure all procedures are adhering to industry standards, such as the suspension of debt collection where debt liability is disputed, and the provision of accurate and relevant information to debtors.
Recommendation 20
6.38 The committee recommends the department consider adoption of the principles of the Victorian Judgement Debt Recovery Act which precludes debt collection to be made from Centrelink payments that are recognised minimum payments required for food, shelter and other life essentials.
Recommendation 21
6.39 The committee further recommends the department develop guidelines on appropriate levels of debt repayment to income ratios, to ensure that debt repayment amounts do not impact any individual's ability to purchase life essentials.


'Property without Personhood' by Shelly Kreiczer-Levy in (2017) 47 Seton Hall Law Review comments 
The property as personhood theory provides a dominant justification for legal theory and has shaped numerous legal doctrines. Although the theory has been criticized by many scholars, one important concern has escaped scholars thus far. Property as personhood limits identity and confines growth. The concept allows little room for experimenting with personality and testing one’s lifestyle. Access, a rising form of property use in the sharing economy, provides an important alternative. It allows for property use without personhood, emphasizing choice, flexibility and mobility. This Article presents this alternative and explains its significance to property legal theory contra the property as personhood theory. It also details the benefits and costs associated with property without personhood, and sketches out possible legal implications.
'The Legal Status of Artificially Intelligent Robots: Personhood, Taxation and Control' by Filipe Maia Alexandre comments 
The introduction of artificial intelligence in industry and society will revolutionize the current social structures and comport several regulatory challenges, which legal frameworks are not prepared to give a direct response to. In order to accommodate this reality, we understand that machines with limited memory, machines with a theory of mind and self-aware machines should be considered separate legal entities from their owners and users. Attributing a separate legal status to artificially intelligent agents and defining the contents of that status, namely, regarding liability, eventual rights and potential taxation duties, allows for minimum certainty concerning the consequences of the introduction of those new intelligent agents in society, which contrasts with the large amount of unforeseeability that it comports. However, the risks of that unforeseeability still need to be addressed and mitigated, as they are not only related to eventual damages, but also to the protection of personal data and public safety. When designing technology that could impact the safety or wellbeing of humans, it is not enough to simply presume it works.

20 June 2017


How to Make a Queer Scene, or Notes toward a Practice of Affective Curation by Ramzi Fawaz in (2016) 42(3) Feminist Studies 757 considers trigger warnings, resilience and respect.

Fawaz explains
 Let me begin with two stories. In spring of 2013 I organized a semester-long, undergraduate film series at George Washington University titled “Acting Up: Queer Film and Video in the Time of AIDS.” At semester’s end, after participants had watched nine films about the AIDS epidemic—among them classic AIDS documentaries, activist videos, and mainstream Hollywood productions—I chose to conclude the series with the AIDS documentary Silverlake Life: The View from Here. Silverlake Life documents a year in the lives of Tom Joslin and Peter Friedman, a gay couple living in Los Angeles in the late 1980s who share an HIV diagnosis. At the time I made the selection, I did not realize that Silverlake Life documents one of the most devastating lived experiences of the AIDS epidemic ever filmed: during the course of taping, Tom, the initial documentarian, becomes gravely ill and dies on camera while lying in bed after a week-long convalescence. Reviewing this scene before our official screening, I found myself overwhelmed by intense feelings of anxiety. On the one hand, I felt a deep responsibility to expose my students to the aesthetic and political work of this daring documentary, and on the other, to protect them from witnessing forms of suffering that might traumatize them more than illuminate the social history of AIDS. When we convened to discuss the film, many students expressed how devastated they were by what they had seen. Rather than shutting down conversation, however, the depth and intensity of their viewing experience galvanized an extraordinary conversation about the ethics of documenting the lives (and deaths) of people with AIDS. What they witnessed expanded the very possibilities of what they could feel about issues of collective concern such as the AIDS epidemic, while also trans-forming their ability to reconsider productive encounters with pain, suffering, and trauma. In my fear of negatively impacting students, I had forgotten both their capacity to respond with generosity and openness to traumatic images as well as my own careful curation of nine previous films and the attendant conversations held around them, which had laid a groundwork of shared affective openness to difficult content.
One year later, as a newly minted assistant professor of English at the University of Wisconsin, Madison, I taught a large lecture course on American fantasy. In the fourth week of class, I screened The Wizard of Oz as part of a unit on the Hollywood musical, and I devoted a lecture to a gay and lesbian interpretation of this classic film. I highlighted the movie’s camp aesthetics, its gender play and drag elements, and its derailing of traditional heterosexual romance plots. As a gay man well versed in queer media scholarship, I took it for granted that this was a pleasurable but patently obvious interpretation of a film that I assumed most people recognized for its exuberant and visually spectacular gayness. Yet as I spoke, I sensed a visceral tension build in the room. Half the students seemed mesmerized by the possibility of a queer aesthetic underlying the movie, while the other half frowned at me in silent fury, outraged by my daring to desecrate the presumed innocence of a childhood escape. The seething resentment of this latter group was confirmed for me when, weeks later, my teaching assistants disclosed that numerous students had expressed feelings of anger and frustration that my interpretation had “ruined” their pleasure in a beloved film of their youth. This circumstance prompted me to confront my students the following week: micro-phone in hand, I strolled the room and asked students to account for their feelings of discomfort. I wanted them to explain why their personal pleasure in The Wizard of Oz hinged on the diminishment of alternative viewing possibilities, including unexpected queer delights in transparently “straight” narratives. Students were clearly jolted out of their complacent belief that no one would hold them accountable for their perspective, or that their view might have political or ethical consequences: yet the resistance of some to being called out was counterbalanced by a dawning consciousness among others about how taken-for-granted their way of viewing and consuming popular fantasy stories could be.
I recount these two pedagogical scenarios because they illuminate a central, yet often uninterrogated, aspect of the contemporary national debates around trigger warnings: namely, the slippage between actual experiences of psychological trauma triggered by violent or disturbing media content (what the very concept of the trigger warning was originally intended to address), and the generalized feeling of discomfort aroused in students when they encounter objects, scenarios, and ideas contrary to their worldview. No doubt, just as these two definitions of triggering are not identical, the two classroom experiences I recount were not the same: in the former, my students had been prepared to witness and respond to traumatic content through a semester-long engagement with films about the AIDS epidemic (and they had discussed these movies in an intimate seminar setting that allowed for a sense of trust between participants); in the latter, students responded negatively not to traumatic course content, but to a line of thought that offended their sensibilities in a large lecture setting where individual discomfort has fewer outlets for public airing. Yet it struck me that what really distinguished the two scenarios was less the specific forms of triggering or the distinct logistics of each pedagogical environment, but the subsequent reactions that students had to being made uncomfortable: in one setting openness to interrogating their affective responses to the world; in the other, a defensive posture against perceived threats to their point of view. While the results of each teaching experience surprised me, what I had wanted out of my course material was, in a sense, to intentionally trigger my students—not in the traditional understanding of triggering as having a negative psychological impact, but in the sense of jolting their sensory experience of the world by creating the space where unpredictable and unsettling affective responses to course content might provoke our dialogues. Clearly, students in my American fantasy course felt triggered in some amorphous but no less impactful way by my lecture, but they lacked a critical vocabulary or even the inclination to question what it was they were feeling when they recoiled from my ideas. In the wake of these experiences, I wondered how I might make visible the pedagogical strategy of eliciting a range of potentially discomforting affective responses from students and, thus, lay bare the pleasures and insights of such discomfort. I wanted to know: if we wish to change the way our students respond to a chaotic and unpredictable world, how should we teach them?
In this essay, I put forward a pedagogical model I call “affective curation,” that centralizes the value of intentionally eliciting, or “triggering,” uncomfortable affective responses from students in the class-room in order to develop new strategies for retuning, rerouting, or altogether altering students’ sense perceptions of the world. My interest is to find productive ways that we, as teachers and scholars, might take students’ feelings more seriously and animate lively and productive discussion about those feelings while also holding students accountable for their emotional responses toward a range of ideas, objects, and realities. … My belief is that the capacity to engage more fully with the vast range of affects available to any given human being is a central aspect of a liberal education that current debates around trigger warnings often obscure, either by centralizing questions of psychological health that bracket feeling states as off-limits to rational deliberation, or by diminishing the value of emotional responses to course material by suggesting that feelings have no place in the classroom. Against both these lines of thought, I wish to explore what it might mean to infuse the contemporary debate around trigger warnings with that seemingly old-fashioned feminist consciousness-raising project of taking feelings seriously, of perceiving one’s affective or gut-level responses to the world as a form of knowledge that can be accessed with unpredictable but potentially ethical and democratic results.