23 July 2017

Publicity

'Publicity Right, Personality Right, or Just Confusion?' by Graeme B. Dinwoodie and Megan Richardson in Richardson and Ricketson (eds), Research Handbook on Intellectual Property in Media and Entertainment (Elgar, 2017) comments
There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.

Convicted Practitioners

'Doctoring with conviction: criminal records and the medical profession' by John Martyn Chamberlain in (2017) British Journal of Criminology comments that
The General Medical Council decides if, when they are convicted of a crime, a doctor in the United Kingdom should be allowed to continue in their employment. This article is the first to detail these decisions for the period 2005–15. No doctor was barred from practising medicine for serious violent and sex offences, including rape, possession of images of child sexual abuse, manslaughter and domestic violence. These findings are placed in the context of contemporary developments in criminal record reform and criminological analysis of the relationship between employment and desistance. It is concluded that the high degree of devolved discretion allowed to elite professional occupations must be subjected to further critical scrutiny and policy reform. 
 Chamberlain goes on to state
 It has been argued that much of contemporary ‘crime talk’ is dominated by highly punitive and frequently short-sighted populist crime discourses, which prioritize economic prosperity and security over human rights and social equality (Carlen 2010). A preoccupation with public protection has certainly become a ubiquitous feature of the modern governmental crime control project (e.g. see Frost 2006; Simon 2007; Wacquant 2009; Barry et al. 2013; Farrall et al. 2016). Two key penological trends are bound up with this state of affairs (Simon 2007; Garland 2012; 2013). First is the emergence of systems of punishment within western neoliberal nation-states, which rely heavily on mass penal incarceration and increased community-based sentencing, arguably without adequate consideration of the negative consequences for long-term social cohesion and equality of opportunity (Maruna 2011; Wacquant 2011; Jacobs 2015). 
Second is the proactive promotion by law enforcement agencies of risk identification and management technologies and strategies, targeted at identifying and managing possible future threats to public safety (Barry et al. 2013; Mythen 2014). This, in turn, has led to a growing emphasis on maximizing crime detection and prevention data resources, including the development of CCTV and surveillance technologies, ‘Big Data’, artificial intelligence and predictive policing techniques (McCulloch and Wilson 2015; Chan and Moses 2016; Williams et al. 2016). Within this context, politicians and criminal justice service leaders, particularly the police, have argued that electronic criminal record databases, including DNA databases, are important crime prevention measures for ensuring the security of all and the personal safety of the most vulnerable (Brame et al. 2015; Uggen 2016). 
Focusing on the second of these international trends, this article critically examines for the first time data pertaining to doctors in the United Kingdom who possess a criminal record. In doing so, it contributes to contemporary criminological debate surrounding the role of criminal records in promoting public safety. There are an estimated 10 and a half million people who possess a criminal record in the United Kingdom, which is 16 per cent of the current 64 million population (Unlock 2015). One government study for England and Wales revealed that 33 per cent of males born in 1953 had a conviction for at least one offence by the age of 53, that in 50 per cent of cases they had offended just once and that in 85 per cent of cases the offence had occurred before they were 30 years old (Ministry of Justice Statistics Bulletin 2010). It has been argued, as a result, that it is not only a matter of public safety to ensure that ex-offenders have job opportunities, it is also critical to a successful economy and the promotion of civil society (Hubbard 2014). However, in common with many other countries, ex-offenders in the United Kingdom find it difficult to find paid employment or access to training and educational opportunities. 
A key reason why this is the case, is that under the criminal records system relatively minor offences, such as theft, frequently engender the same social stigma and civic bars as their more serious counterparts (Rukus et al. 2016). Disbarring candidates from entry into certain workplaces or education and training, regardless of their age, the time expired since an offence or the offence type, has been increasingly subject to academic and public scrutiny in the United Kingdom over the last two decades, and furthermore, has been subject to successful legal challenge under the Human Rights Act 1998. On the 22 January 2016, the UK Court of Appeal ruled that it was contrary to article eight of the Human Rights Act 1998 for a person to be required by law to disclose multiple minor convictions regardless of the time elapsed or the personal circumstances within which an offence occurred (Rose 2016).This followed an earlier 2013 Court of Appeal ruling, which led to a number of minor convictions being deemed ‘protected’ from disclosure after 11 years for adult offenders and 5.5 years for youth offenders (Liberty 2013). 
Although regarded by some as being progressive reforms to the UK criminal record system (e.g. see Jackson 2014; Rose 2016), human rights advocates and penal reform activists have argued that they do not go far enough to ameliorate the long-term collateral damage to ex-offenders lives caused by officially sanctioned sentences imposed by courts, particularly if an offence occurs early in a person’s life (e.g. see Sands 2016; Unlock 2016). Nonetheless, this article contends that the UK High Court rulings underscore the need for action to be taken to ensure adequate security-based checks and balances are in place, which prioritize public safety, particularly in relation to the degree of devolved discretion permitted to some types of employers. 
Focusing on the medical profession as a case study to investigate how this discretion is currently applied in practice, this article contributes to the evidenced-based promotion of a more nuanced rights-based view of criminal record reform. In doing so, it seeks to develop a broader criminological conception of the relationship between work and desistance from offending behaviour, through exploring more fully the diversity of the stratified forms of employment sought by ex-offenders (Hunter 2015). Moreover, its arguments are germane to international jurisdictions, such as the United States, Canada and Australia, all of whom are currently debating similar progressive reforms to their criminal records systems (Fox 2016).

05 July 2017

Copyright and the Dead Hand

'IP, RIP' by Andrew Gilden in Washington University Law Review (Forthcoming) comments 
Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.
This Article reexamines the interests of an artist’s families, friends, and other heirs (“IP estates”) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates “jealously guard” their ancestor’s legacy, “sit back and collect rent,” and put a “stranglehold” on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward.
This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist’s cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict.

CIS Security

A report by the Australian Parliamentary Joint Committee on Intelligence and Security has endorsed the Telecommunications and Other Legislation Amendment Bill 2016 (Cth), concerned with the management of "national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities".

The Committee recommends that the Bill be passed by the Parliament, and makes 12 further recommendations for improvements to the proposed framework.

 The Committee’s recommendations include:
  • providing further clarity in guidelines to industry on the extent of the framework’s application in areas such as cloud computing and over-the-top services, 
  • ensuring effective and regular information-sharing between government and industry, in particular in relation to threat information, 
  • introducing a specific obligation for industry to notify government of any new or amended offshoring arrangements in relation to retained telecommunications data, and
  •  specifying annual reporting requirements in the legislation. 
The Committee has also recommended that the framework be reviewed after three years to ensure it is operating effectively.

The specific recommendations are
R1 -  The Committee recommends that the administrative guidelines to the Telecommunications and Other Legislation Amendment Bill 2016 be revised to provide comprehensive information, clarity and certainty to industry in a greater range of circumstances. In particular, the revised administrative guidelines should provide further clarity regarding a company’s security obligation in circumstances where:
  • a company is providing or reselling an over the top service, 
  • telecommunications infrastructure is used (but not necessarily owned or operated) by the company, 
  • a company’s infrastructure is located in a foreign country, and used to provide services and carry and/or store information from Australian customers, and 
  • a company provides cloud computing and cloud storage solutions.
The Committee considers that inclusion of this additional information should be finalised prior to the conclusion of the 12 month implementation period.
R2 - The Committee recommends the Telecommunications and Other Legislation Amendment Bill 2016 be amended to clarify that, in circumstances where a broadcaster is exempt from being treated as a carriage service provider under the Telecommunications Act 1997, they are also not intended to be subject to the obligations set out in the Bill.
R3 - The Committee recommends that the Attorney-General’s Department works collaboratively with industry to ensure effective and regular information sharing, in particular sharing threat information with industry, leveraging existing mechanisms where possible. These information-sharing mechanisms should ensure industry receives timely and tailored threat information to aid industry compliance. The Committee considers that these processes should be finalised prior to the conclusion of the 12 month implementation period.
R4 -  The Committee recommends that the administrative guidelines to the Telecommunications and Other Legislation Amendment Bill 2016 be expanded to provide greater detail about the existing list of notifiable items. This could be achieved, for example, by listing the sorts of changes that are envisaged to not require notification to the Communications Access Co ordinator (CAC), as well as providing more detailed information about the sorts of changes that do require notification to the CAC. The Committee considers that inclusion of this additional information should be finalised prior to the conclusion of the 12 month implementation period.
R5 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to outline the application process for exemptions from notification requirements.
The Bill should clarify that:
  • carriers and nominated carriage service providers may request the Communications Access Co-ordinator (CAC) to provide either a partial or complete exemption from the notification requirement in relation to certain types of changes, and 
  • the CAC may vary or revoke exemptions.
R6 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to make clear that the Bill does not affect the operation of existing legislated privacy obligations.
R7 - The Committee recommends that section 315J of the Telecommunications and Other Legislation Amendment Bill 2016 be amended to specify that the annual report presented to Parliament must include:
  • the number of occasions the information-gathering powers have been exercised, 
  • the number of notifications and security capability plans received, 
  • regulatory performance measures, including the average response timeframes of the Communications Access Co-ordinator to notifications and the proportion of responses made within the statutory timeframes, 
  • details of the Government’s information-sharing arrangements with industry, 
  • a summary of any feedback or complaints received from stakeholders, and 
  • the number of occasions the directions-powers have been exercised. The annual report should indicate if trends or issues have emerged in relation to any of the above.
R8 - The Committee recommends the Explanatory Memorandum for the Telecommunications and Other Legislation Amendment Bill 2016 be amended to clarify that negotiating in ‘good faith’, as set out in proposed subsection 315B(5), includes whether the Communications Access Co-ordinator has complied with the applicable statutory timeframes. This would make it clear that the Attorney-General will take into account whether the Communications Access Co-ordinator responded to any relevant notifications or security capability plans received from industry within the applicable statutory timeframe, prior to issuing a direction.
R9 - The Committee recommends that the Explanatory Memorandum to the Telecommunications and Other Legislation Amendment Bill 2016 be amended to outline the avenues available for industry to recover reasonable costs in circumstances where:
  • the Communications Access Co-ordinator has not responded within the statutory timeframe to the carrier or nominated carriage service provider (C/NCSP)’s notification of a proposed change, and 
  • the C/NCSP has proceeded with the proposed change on the basis of no response having been received, and 
  • the Attorney-General has subsequently issued a direction relating to the change.
R10 - The Committee recommends that, at the time of the review required to be undertaken by the Parliamentary Joint Committee on Intelligence and Security under section 187N of the Telecommunications (Interception and Access) Act 1979, the scope of the review be expanded to include consideration of the security of off-shored telecommunications data that is retained by a service provider for the purpose of the data retention regime.
R11 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to include, in relation to data retained under Part 5-1A of the Telecommunications (Interception and Access) Act 1979, a specific obligation within the notification requirement in proposed section 314A to require C/NCSPs to notify the CAC of any new or amended offshoring arrangements.
R12 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to require the Parliamentary Joint Committee on Intelligence and Security to review the operation, effectiveness and implications of the reforms, commencing within three years of the Bill receiving Royal Assent.
The scope of the review should include:
  • the security of critical and sensitive data, 
  • the adequacy of information-sharing arrangements between government and industry, and 
  • the adequacy and effectiveness of the administrative guidelines in providing clarity to industry on how it can demonstrate compliance with the requirements set out in the Bill.
R13 - The Committee recommends that, subject to the above recommendations being accepted, the Telecommunications and Other Legislation Amendment Bill 2016 be passed.
In discussing Information sharing and confidentiality at paras 5.51 through 5.61 the report states
roposed section 315H authorises the further use or disclosure of information or documents obtained under certain sections of the Bill (314A, 314B, 314C, 314D, 315C and 315H) to persons other than the Secretary of the Attorney-General’s Department, or his or her delegate.
Proposed section 315H is intended to protect commercially sensitive information by ensuring: § disclosures are limited to the purpose of security (as defined by the ASIO Act), and § identifying information must not be disclosed to a person who is not a Commonwealth officer.
The Explanatory Memorandum contains information about the circumstances in which information is likely to be shared, including for providing threat information and intelligence to foreign partners in support of reciprocal information sharing arrangements.
The Explanatory Memorandum also notes that disciplinary action would be available under existing legislation in circumstances where Australian Government employees breach the provisions. For example, section 70 of the Crimes Act 1914 applies criminal sanctions to unauthorised disclosure of information by current or former Commonwealth officers.
The Australian Information Commissioner noted that proposed sub section 315H(2) restricts the disclosure of ‘identifying information’ to a person who is not a Commonwealth officer. The Information Commissioner further noted that identifying information ‘means information that identifies the C/CSP or intermediary concerned’, and suggested that, as an additional protection, this restriction on the disclosure of identifying information be extended beyond commercial information to apply to ‘personal information’ as defined in the Privacy Act 1988.
In response, the Attorney-General’s Department stated: Extending subsection 315H(2) to ‘personal information’ is unnecessary as there are already strong protections in place for the protection of personal information. The Attorney-General’s Department, the Department of Communications and the Arts and other government departments, are subject to the Privacy Act 1988, which sets out how personal information is handled. ASIO’s handling of personal information is governed by the ASIO Act and the Attorney-General’s Guidelines (made under the Act) and is also subject to the oversight of the Inspector-General of Intelligence and Security. Section 315H of the Bill is intended to cover other information, such as commercially sensitive information, that would not necessarily be captured under existing personal information protections (e.g. company names).
The Explanatory Memorandum notes that the protections in the Bill for commercial information would operate to complement the high standard for protecting information which government agencies already operate under including compliance with requirements under the Privacy Act regarding use, disclosure and destruction of personal information and secrecy obligations in the Crimes Act 1914.
The Committee notes that proposed section 315H authorises the use or disclosure of information obtained under the Bill, and provides measures to protect commercially sensitive information, such as requiring the removal of identifying information and placing limitations on disclosures.
The Committee acknowledges the Information Commissioner’s suggestion that, as an additional protection, the restriction on the disclosure of ‘identifying information’ in proposed section 315H be extended beyond commercial information to apply to ‘personal information’, as defined in the Privacy Act 1988.
However, the Committee notes that there are already suitable protections in place for personal information, including the Privacy Act 1988, the Australian Security Intelligence Organisation Act 1979 and the Attorney General’s Guidelines (made under the ASIO Act). ASIO’s handling of personal information is also subject to the oversight of the Inspector General of Intelligence and Security.
Nevertheless, the Committee considers that the existing protections for personal information are not readily apparent on the face of the Bill. The Committee recommends that the Bill be amended to make it clear that subsection 315H(2) is intended to complement existing requirements, including those under the Privacy Act 1988, regarding use, disclosure and destruction of personal information

30 June 2017

Inked

'Tattoos and IP Norms' by Aaron Perzanowski in (2013) 98 Minnesota Law Review 511 comments
Twenty-one percent of adults in the United States — more than sixty-five million Americans — have at least one tattoo. For those under age forty, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue. Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society.
Despite its countercultural origins, the tattoo industry shares much in common with other, more familiar creative industries. Fundamentally, it capitalizes on market demand for original creative works. Yet as public goods, the value of those works is readily appropriable through copying. Predictably, copying is both a practical reality and a source of concern within the industry. But unlike their counterparts in most other creative industries, tattooers nearly uniformly reject formal legal mechanisms for adjudicating claims over ownership and copying. Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.  
Following in the tradition of earlier scholarship exploring the intersection of intellectual property law and social norms, But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection,this Article sets out with three objectives: to provide a descriptive account of the norms related to creative production within the tattoo industry; to explain both the industry’s choice to forego formal assertions of legal rights and the particular content of the norms it has embraced; and to consider the implications of this case study for intellectual property law and policy more generally.
But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection tattoo industry norms function as an informal system of community governance that developed despite an applicable body of formal law. And unlike norms governing nonmarket behavior, tattoo industry norms prevail despite the same profit motive characteristic of many creative fields. 
Second, tattoo industry norms are unique because they must account for a more complex set of relationships than those observed in earlier case studies. Tattooers must establish norms that govern not only their interactions with each other, but with clients who play an important role in the creation and use of their works as well. Further complicating matters, aside from copying within their industry, tattooers are faced with the question of the propriety of copying outside of it. This overlapping complex of relationships between tattooers, clients, and the broader art world yields a correspondingly rich, nuanced, and perhaps contradictory set of creative norms. 
Part I of this Article offers a brief history of the practice of tattooing — beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance. This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry.
After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts. In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community.
These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs — that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs — that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, suchas paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well.
Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry.
Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services.

Public sector procurement

The report from the Joint Select Committee on Government Procurement regarding its inquiry into the Commonwealth Procurement Framework (particularly the amended Commonwealth Procurement Rules) offers recommendation for improvement of the regime.

The report states
Amendments to the Commonwealth Procurement Rules came into effect on 1 March 2017. The amendments aim to ensure that the full benefit of Commonwealth procurement will flow to the Australian economy. The amendments will also ensure that Australian regulations and standards are upheld. The amendments are designed to mitigate the disadvantages faced by Australian suppliers accessing government procurement opportunities.
The evidence received by the Committee showed overall support for the amendments to the Commonwealth Procurement Rules. However this support was tempered by concerns about effective implementation. Many of the new clauses lack clarity or leave too much to the discretion of officials. The Committee has made suggestions to tighten up the clauses by refining or expanding the terms.
The Committee heard about several problems with the implementation of the previous Commonwealth Procurement Rules. These include a procurement culture that focuses on lowest cost rather than value-for-money, a lack of accountability and transparency, and unacceptable risk shifting. There is also a perception that–due to a lack of technical skill and expertise–the government has become an uninformed purchaser. The absence of a requirement to comply with Australian standards is also considered a deficiency.
There are several flow-on risks that may have a detriment on Australia more broadly. These include the loss of a skilled workforce, safety, economic and environmental risks and potential wastage. The procurement system may also create barriers to domestic businesses to even attempt to take advantage of procurement opportunities. Comprehensive guidelines are essential to address the current deficiencies and ensure that the implementation of the new clauses is successful. New guidelines are required to remove the discretionary nature of decision making and replace it with specific standards that must be met, as well as mandate the evidence required from tenderers. Economic benefit, in particular, requires explicit definition and weighting to properly assess suppliers claims. There must also be specific, detailed guidance on negotiating the complex area of human rights.
Additional procurement connected policies are needed to provide guidance for environmental sustainability and human rights. These guidelines and policies should be supplemented with a public service wide training program. Improved record keeping is essential to address the lack of transparency and accountability in the current system.
Contract management can be better utilised to control implementation and maximise procurement and contract outcomes. Good contract management ensures that tenderers meet their obligations and responsibilities.
If the amended Commonwealth Procurement Rules are to encourage Australian suppliers, the Australian Government must not enter into international trade agreements which diminish the benefits that underpin these amendments. Additionally, procurement officers must be better informed of the exemptions currently available in the international agreements to preference domestic businesses.
A range of best practice models are available for Australia to draw on to improve the procurement system.
The Committee believes that a three pronged approach is necessary to address the implementation issues identified in this report and ensure the new rules are applied consistently, transparently and to maximum effect. It would like to see:
  • the publication of comprehensive implementation guidelines coupled with public service wide training to support officials to apply the rules in the manner in which they are intended; 
  • the introduction of procurement connected policies to safeguard the Australian Government’s role as a model procurer; and 
  • the formation of an independent Industry Participation Advocate modelled on the South Australian system to facilitate consideration of Australian economic benefit required by clause 10.30.
The Committee' recommendations are
R1 - that the Department of Finance revise clause 10.9(c) of the Commonwealth Procurement Rules to require all goods purchased by the Australian Government to comply with Australian standards unless none are applicable.
R2 - that the Attorney-General’s Department oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate suppliers’ compliance with human rights regulation.
R3 - that the Department of Environment oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate the whole-of-life environmental sustainability of goods and services to be procured.
R4 - that the Department of Industry, Innovation and Science enhance the procurement connected policy for Australian Industry Participation Plans, requiring that good procurement practices are implemented down through the supply chain so that both prime and subcontractors: implement best practice terms and conditions; and are contractually obligated to report on those terms and conditions.
R5 - that all Commonwealth contracts contain a similar clause to Commonwealth Contracting Suite clause 10, ensuring that the obligations of prime contractors apply to all sub-contractors.
R6 - that rural and regional small and medium businesses be added to the list of exemptions under Appendix A: Exemptions from Division 2 of the Commonwealth Procurement Rules.
R7 - that the Department of Finance and the Department of Industry, Innovation and Science jointly develop and implement a framework to collect relevant data on the degree of Commonwealth procurement that is supplied by Australia-owned businesses, contains Australian-manufactured goods, or uses Australian-based services.
R8 - that, in negotiating future trade or World Trade Organisation agreements, Australia not enter into any commitments that undermine the Australian government’s ability to support Australian businesses.
R9 - that the Department of Finance, or the proposed Australian Industry Advocate, publish comprehensive implementation guidelines for the new Commonwealth Procurement Rules as a matter of priority. The guidelines should:
  • explicitly define what constitutes economic benefit; 
  • prescribe a minimum 15 per cent weighting across a tender in accordance with the economic benefit criteria; 
  • procuring agency or Minister to retain discretion to increase weighting to leverage economic benefit; 
  • encourage maximisation of economic opportunities and benefits when assessing a tender for the degree of local content and participation; 
  • outline how rubrics or weighted criteria may be used to compare the unique economic benefits offered by different suppliers and in assessing economic benefit as part of the overall tender evaluation; 
  • describe techniques for assessing the veracity of suppliers’ claims of economic benefit and for ensuring these benefits are delivered; and 
  • encourage the consideration of innovative solutions during the scoping and design stage of procurement projects.
R10 - that, in order to limit discretionary decision-making, promote consistency and safeguard transparency, the guidelines prohibit the use of qualitative assessments across whole tenders.
R11 - that the guidelines specifically require that, for all procurements over $4 million, a record is created including: the reason for the tender approach chosen; the reason for the selection of the preferred tenderer; and details of the economic benefit score.
R12 - that the Department of Finance design and deliver a public service wide training program to support the effective implementation of the new Commonwealth Procurement Rules in line with new guidance material.
R13 - that the Australian government ensures that all departments and agencies must ensure that an individual has successfully undergone procurement training before that individual can be delegated a procurement authority.
R14 - that the Australian Government legislate as a statutory authority under the responsibility of the Minister for Industry, Innovation and Science an Australian Industry Advocate to:
  • aid Commonwealth agencies to design procurement processes which maximise benefits to the Australian economy and increase opportunities for SME participation; 
  • support Australian businesses to access Commonwealth procurement by promoting opportunities and assisting businesses to promote the economic benefits they can offer; 
  • provide independent, transparent and consistent evaluation of the unique economic benefits offered by different suppliers; 
  • guide Commonwealth agencies’ application of weighted criteria and assessment rubrics to overall procurement evaluations; and 
  • monitor suppliers’ delivery of contracted economic benefits.
R15 - that the Department of Finance incorporate supplier feedback, including on the rewording of clauses identified in this report, into its 12 month review of the new Commonwealth Procurement Rules. It also recommends that the findings of the review are made public.
R16 -  that a Parliamentary inquiry is established by March 2018 to evaluate: supplier feedback, including on the rewording of clauses identified in this report; interaction with the Anti-dumping framework and the tax system; and; recent changes to the Australian Industry Participation Plan policy. The inquiry should report by the end of 2018.

Autonomy

'Ritual Male Circumcision and Parental Authority' by Kai Möller (London School of Economics - Law Department) comments
A recent judgment by a lower court in Germany brought the problem of ritual male circumcision to the consciousness of the wider public and legal academia. This essay weighs in on this emerging discussion and argues that ritual male circumcision is not covered by parental authority because it violates the human rights of the boy on whom it is imposed. It first considers and dismisses the best interest test of parental authority which, by focusing on the well-being of the child as opposed to his (future) autonomy, fails to take the boy’s human rights sufficiently into account. Instead, the essay proposes what it terms the autonomy conception of parental authority, according to which parental authority must be exercised such as to ensure that the child will become an autonomous adult. While parents may raise their child in line with their ethical, including religious, convictions, respect for his autonomy requires that this be done in a way that allows the child to later distance himself from these values; this implies, among other things, that irreversible physical changes are impermissible. This conclusion holds even if it could be assumed that the child would later come to endorse his circumcision: a proper understanding of autonomy implies that the religious sacrifice of a body part can only be authorised by the person whose body it is. Thus, ritual male circumcision is outside the scope of parental authority because it usurps the child’s right and responsibility to become the author of his own life.