21 August 2014

Assisted Reproduction and anonymity

Withdrawal of anonymity for gamete donors?

The 2nd Reading Speech for the Assisted Reproductive Treatment Further Amendment Bill 2013 (Vic) addresses questions regarding access to information regarding 'genetic heritage' (considered in NSW last year here and elsewhere herehere and here).

The Legislative Council Hansard of 7 August (p 2449) reads -
Victoria was the first jurisdiction in Australia to recognise and address the needs of donor-conceived persons to access information regarding their genetic heritage. The Infertility (Medical Procedures) Act 1984 and the Infertility Treatment Act 1995 required information relating to treatment procedures using donor gametes to be recorded on a central register.
The current Assisted Reproductive Treatment Act 2008 maintains two registers from which information about persons participating in, or born from, donor treatment procedures can be obtained:
  • a central register, which contains both identifying and non-identifying information about donor-conception stakeholders since 1988; and
  • a voluntary register, which records personal information voluntarily lodged by the donor, donor-conceived person, or a recipient parent.
However, there are currently three separate regimes regulating access by donor-conceived people to information about their donors. The changes in the legislative regime over time reflect society's changing attitudes to donor conception and the rights of donor-conceived people to have information about their genetic origins.
Currently, people who were born from gametes donated after 1998 are entitled under the act to obtain identifying information about their donors when they reach adulthood. People conceived from gametes donated between 1988 and 1997 can access identifying information about their donors with the donor's consent. However, people conceived from gametes donated prior to 1988 have no legislated right to obtain identifying information. Prior to 1988 donors' anonymity was a requirement of the consent to donation process.
The 2012 parliamentary committee inquiry into access by donor-conceived people to information about donors was asked to consider the possible legal, practical and other issues that may arise if donor-conceived people who do not currently have access to information about their donors were provided with that information. In its final report the committee recommended the introduction of legislation to allow all donor-conceived people to obtain identifying information about their donors regardless of when the gametes they were conceived from were donated or whether the donor had consented.
The government considered the committee's report, carried out a comprehensive literature review and a detailed human rights analysis of the interests of all stakeholders, including donor-conceived individuals, recipient parents, donors and their families, and also considered the findings of VARTA's consultation with pre-1998 donors.
The government concluded that the committee recommendation to allow all donor-conceived people access to identifying information about their donors should be supported in principle, but would be more appropriately implemented with the consent of the donor. The government tabled its final response to the inquiry in August this year. The bill gives effect to the government's response, balancing the rights of all donor conception stakeholders whilst establishing a legal right of access to information for those conceived from gametes donated prior to 1988 where none existed before.
The mechanism for disclosure of identifying information provided in this bill is predicated on the consent of the donor in the same way as this occurs for persons conceived from gametes donated between 1 July 1988 and 31 December 1997.
This effectively extends the model that currently applies to persons born from gametes donated between 1988 and 1997 to donor-conceived people born from donations made prior to 1988, to enable them to access information about their donor where it is available. By providing disclosure of identifying information with consent, the model represents an effective implementation of the key committee recommendation to provide retrospective access, whilst balancing the rights of various donor conception stakeholders.
Access to information for persons born from donations made prior to 1988
The bill will allow for persons born from gametes donated prior to 1 July 1988 to be able to request and receive identifying information about their donor, where it is available and where their donor consents to its release, through the central register.
Upon receipt of an application, the registrar of BDM will be able to disclose identifying information if the applicant was conceived using gametes donated prior to 31 December 1997 and the donor has given consent to the disclosure. The disclosure of non-identifying information will apply upon receipt of an application by a person under section 56 of the act irrespective of whether consent is obtained.
The requirement of the act for an applicant to have received counselling prior to the disclosure of identifying information, or to be offered counselling in the case of non-identifying information, will also apply to persons seeking information relating to donor treatment procedures involving the use of gametes donated prior to 1 July 1988.
Access to information about siblings
Currently the voluntary register is the only formal avenue for a donor-conceived person and recipient parents to seek information about genetically related donor siblings. If a person conceived from the same donor's gametes (a half-sibling) is registered on the voluntary register, the donor-conceived person can obtain non-identifying and/or identifying information from the voluntary register, in accordance with the half-sibling's wishes. However, for this to be effective, the half-sibling must be aware that they are donor conceived, must be aware of the existence of the voluntary register and must be registered on it.
The committee heard that a significant issue for some donor-conceived people is the concern that they may unknowingly form a romantic relationship with a half-sibling.
The committee also heard that the provision of non-identifying information about siblings, such as birth month, year and sex, could provide donor-conceived people with a means to assure themselves that a potential partner is not a sibling.
This bill will allow for a donor-conceived person or a parent of a donor-conceived person to request information about that person's genetic siblings from the central register. In response to applications about genetically related siblings, the number of genetically related siblings in total and per family unit, their sex, month and year of birth may now be disclosed.
The committee also noted that although clinics currently provide donors who provided gametes before 1988 with basic non-identifying information about their donor offspring, donors do not possess this right under legislation.
All donors who consented to the use of their gametes after 1 July 1988 currently have the right to obtain from the central register non-identifying information about their donor offspring, regardless of the age of the offspring. The only non-identifying information that is provided is the donor offspring's sex and year of birth. The bill will provide for all donors, regardless of when they made donations, to be able to request non-identifying information about their donor offspring.
Exchange of information about significant hereditary or genetic conditions
Donors may become aware, some time after making their donation, that they have a medical condition that may be passed on to offspring. In these situations it may be critical that the offspring be advised that they may have, or may develop, a serious medical condition. There is currently no mechanism in the act for information about heritable genetic diseases or genetic abnormalities to be passed on to people who may be affected by this information. A similar issue may arise for donor-conceived people who wish to pass on medical information about a hereditary condition to donor-conceived siblings.
The committee recommended that a mechanism be introduced to allow a donor to provide medical information to a donor-conceived person where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person, and that the same principles apply to donor-conceived people providing medical information to donor-conceived siblings. This bill will introduce a provision that enables health information about genetic or hereditary conditions, diseases or illness to be disclosed and exchanged between donors and their offspring and between donor-conceived siblings.
It is noted that registered assisted reproductive treatment (ART) providers already have established processes and experience and are best placed to disclose medical information when necessary. ART providers have procedures for notifying past and present patients of significant hereditary diseases and illnesses where the disclosure is necessary to lessen or prevent the threat to the person's health, life or safety, or to inform a person about the existence of a medical condition that may affect them or their offspring.
It is intended for this ART provider practice to apply to present patients, past patients and other affected donor-conception stakeholders (including pre-1988 donors and pre-1988 donor-conceived people). ART providers can provide affected individuals with access to specialist genetic counsellors and have experience in sensitively managing these disclosures, including in circumstances where an individual is unaware of their donor-conceived status.
The bill will provide for registered ART providers to manage the disclosure of medical information similarly to what is provided for in the NSW Assisted Reproductive Technology Act 2007, and to be able to request information about persons conceived from donated gametes from the central register to enable them to perform this function.
Securing access to and preserving donor treatment records
Other than through the voluntary register, persons conceived from donations made prior to 1988 currently have no legal mechanism to access information about their donors. Access to information about their donors is at the discretion of, and dependent on the resources of, individual clinics and doctors who carried out the treatment. The disparate location and management of records can be problematic for facilitating access.
It is believed that some pre-1988 records may be inaccessible, incomplete, inaccurate, or no longer exist. Where records are held privately, they are currently not protected under any legislation and are legally able to be destroyed at any time.
By securing records and facilitating information exchange or access to records between relevant record keepers and BDM, the bill will enable consistent and centralised access to information held in records to be established for stakeholders seeking information. In the bill, this will be achieved by:
  • inviting individual doctors or other persons who may have records to provide these to the registrar of BDM so that the relevant information can be added to the central register; 
  • requiring ART providers that hold pre-1988 records to compile a register of prescribed information from records held by them and to provide the register to BDM so that this information may be added to the central register; 
  • allowing BDM to access and disclose information from the Prince Henry's Hospital records held at the Public Records Office of Victoria as required in order to respond to requests for information.
In the act, the destruction of records is an offence; this bill will extend this provision to records relating to donor treatment procedures involving the use of gametes donated prior to 1 July 1988. In addition, the bill will stipulate that all health records relating to donor treatment procedures must be retained for a period of 99 years. This will ensure these records are preserved in order to facilitate future access to them for the purposes of verifying or obtaining additional information held within them.
Where records are available, ART providers and BDM will create retrospective entries to be placed on the central register. It is intended that these entries reflect the entries required to be kept under the regulations, where that information has been recorded and is able to be ascertained.
Counselling, support and donor-linking services
The Committee heard that the commencement of the operation of the act in 2010 brought about changes in the services available to donor-conception stakeholders, suggesting that, in the minds of donor-conception stakeholders, these were markedly reduced and fragmented, and difficult and confusing to access. Currently, BDM manages the central and voluntary registers; counselling is referred to Family Information and Networks Discovery (FIND); and VARTA is responsible for public education.
The committee noted a number of apparent shortcomings with the current service arrangements for donor-conception stakeholders. The government's response resolves these shortcomings, addressing the current information exchange constraints, and simplifying the service system using the existing infrastructure and expertise of BDM and VARTA. The bill will also provide for increased counselling services and donor-linking.
The current limitations in the act relating to the exchange of information will be addressed in this bill, as these limitations have contributed to the criticisms that the system is disjointed and difficult to navigate. The bill will allow BDM to exchange information about applicants to the central or voluntary register with the prescribed counsellor in order to facilitate effective compulsory counselling sessions.
The existing requirement for a person seeking identifying information from the central register to undergo compulsory counselling will be retained. VARTA will assume responsibility from FIND for the provision of the counselling of applicants seeking information. VARTA will offer support and counselling services not just to applicants for information but also to the broader group of donor-conception stakeholders and other related parties, such as partners of applicants or subjects of an application or recipient parents.
Under the new arrangements set out in the bill, the subject of an application for identifying information whose consent is required may seek counselling on his or her own initiative, or BDM may refer the subject for counselling to assist the person in making a decision as to whether or not to consent. This will ensure that subjects of applications for identifying information are supported to understand the motivations and intentions of the person making the application, and can make informed decisions regarding consent.
In addition, VARTA will provide a voluntary donor-linking service, acting as an intermediary in the exchange of information and contact between donor-conception stakeholders. Encompassed in this service will be a letterbox facility which will enable correspondence between parties who wish to participate in the exchange of information confidentially and progressively.
ARTA's functions generally
Lastly, under the bill, VARTA will continue to provide education and resources about assisted reproductive treatment and fertility more generally and continue to provide support to parents in telling their children about the circumstances of their conception. The bill will also provide VARTA with responsibility to review and decide applications relating to advertising for egg donors under the Human Tissue Act 1982. Other applications under the Human Tissue Act 1982 will remain with the Minister for Health (and the Department of Health, as per present arrangements).

Google

M Burdon, A McKillop, 'The Google Street View Wi-Fi Scandal and Its Repercussions for Privacy Regulation' by Mark Burdon and Alissa McKillop in (2013) 39(3) Monash University Law Review comments that
Between 2008 and 2010, Google secretly collected Wi-Fi header data from residential and business Wi-Fi access points throughout the world. The collection also included details of personal communications commonly known as ‘payload data’. A number of regulatory investigations ensued from this global privacy scandal. Some privacy authorities, including the Australian Privacy Commissioner, sanctioned Google for the collection of payload data. However, the header data collection was largely overlooked. Those authorities that investigated the collection of Wi-Fi header data concluded that Google breached relevant privacy laws. As a result, some jurisdictions now classify Wi-Fi header data as personal information whereas others do not. The collection of Wi-Fi header data gives rise to complex policy and privacy considerations as this data is an important asset of new Location-Based Services. Consequently, it is important to revisit the Google scandal to investigate whether Google’s collection of Australian Wi-Fi header data breached the Privacy Act 1988 (Cth). Our analysis reveals that Google is likely to have breached the Act, which raises important questions about the regulatory actions conducted in Australia and the efficacy of the Act’s application in the face of continuing and rapid technological development.

Property

'Land Rights as Human Rights: The Case for a Specific Right to Land' by Jeremie Gilbert in (2013) 10(18) SUR International Journal on Human Rights comments
Land rights have received some attention as an issue concerning property rights and have been considered a specifically important right for indigenous peoples and women, but a right to land is absent from all international human rights instruments. This article reviews how land rights have been approached from five different angles under international human rights law: as an issue of property right, as a specifically important right for indigenous peoples; as an ingredient for gender equality; and as a rallying slogan against unequal access to food and housing. By examining these different approaches, the article proposes to identify the place of land rights within the international human rights instruments and jurisprudence as well as to examine why they have not been – and whether they should be - included in such documents as a stand-alone and specific right to land.
'Immunity from Seizure and Suit in Australia: The Protection of Cultural Objects on Loan Act 2013' by Craig Forrest in (2014) 21(2) International Journal of Cultural Property 1 notes that
Australia has, like many other states over the past few years, introduced a statute that provides immunity from seizure for cultural objects on loan from abroad and immunity from suit for certain parties. This article explores the historical context that lead to the adoption of this statute and comprehensively explores the legislative regime, highlighting its peculiarities.

20 August 2014

Victorian Offender Registration Regime

The Victorian Police Minister has announced that the state Government will introduce legislation to amend Victoria's sex offender registration regime.

The forthcoming Bill "responds directly to recommendations made by the Victorian Law Reform Commission after a review of the Sex Offenders Registration Act 2004".

The Minister's media release states that
Convicted sex offenders could be charged with a raft of new offences under laws that have been strengthened by the Napthine Government. 
Minister for Police and Emergency Services Kim Wells said amended laws around the Sex Offender Register create new indictable offences for sex offenders who fail to report or deliberately mislead police over contact with children. ... 
under the new, tougher measures, if an offender willfully misleads or fails to tell police about relationships with children, grooming, or interaction with children that could lead to reoffending, they will face indictable offences. 
"This Bill makes clear the obligations of those people on the Sex Offender Register," Mr Wells said. "It includes any kind of online contact with children and it also makes it a summary offence for someone on the register if they fail to tell police of changes to their personal details, for instance if they get a new tattoo or change cars." 
Mr Wells said the Amendment Bill gives police the powers they need to keep Victorian children as safe as possible. "It clears up any ambiguity over what information police require from people on the register." 
The Amendment Bill will also:
  • Impose stricter controls on the overseas travel of those on the register, helping combat child sex tourism; 
  • Permit police to disclose the identity of someone on the register to a parent, guardian or other third party in order to protect a child's safety; 
  • Help police to investigate child sex offences by allowing law enforcement agencies to retain information and intelligence on people on the register after they have completed their reporting obligations; and 
  • Make offenders more accountable for reporting contact with children by overhauling the definition of contact with children to make it clearer and more enforceable.
The Age adds detail and cautions, reporting
The announcement comes more than two years after a Victorian Law Reform Commission review of the Sex Offenders Registration Act handed down 79 recommendations, including enhanced information sharing about sex offenders between police and parents of at-risk children. 
The commission review was conducted after a damning Ombudsman report into a failure by police to notify the Department of Human Services of more than 300 registered sex offenders who had unsupervised access to children or were living with them. 
On Wednesday Mr Wells said the amendments would give police more powers to track sexual offenders and that it was “common sense” to allow police to share sex offender details with the family of a child that has had contact with an offender. 
The new powers could be used in cases where a sex offender has contact with a child, for example through their work, in a situation where that child’s family may not be aware, such as a perpetrator regularly serving a child in a shop. 
“If there is information on the sex offenders register that can be made available to a parent or made available to a third party then that person should have it if Victoria Police believe that a child is in danger,” Mr Wells said. 
When asked whether this provision would extend to notifying neighbours about the identity of a sex offender Deputy Commissioner Graham Ashton said it was “primarily focused on the guardian or person responsible for the safety of that child”. 
“That’s the person we want to communicate to,” he said. “We’ve had cases where we’ve wanted to tell people about the risks to a particular child and have not been able to do so.” 
Information sharing between Victoria Police and the Department of Human Services would also be strengthened by the new legislation, in line with another commission recommendation from 2012. … 
The changes would affect about 3500 people already on the sex offenders register and anyone subsequently added.
The 2012 Law Reform Commission report stated
The scheme has been operating since October 2004. Under the Sex Offenders Registration Act 2004, all adults sentenced for committing sexual offences involving a child are automatically included in a register of sex offenders. Sex offenders under the age of 18 years, and adults sentenced for sexual offences against adult victims, are not automatically included in the register but they may be included by order of the court. Registration is not part of the offender’s sentence. It is a separate scheme administered by Victoria Police. It is intended to be protective, not punitive.
Registered sex offenders living in the community must keep the police informed about their personal details and whereabouts for a period determined by the Act. They must also report the names and ages of children with whom they live or have had 'regular unsupervised contact'. Adult offenders report for 8 years, 15 years or life, depending on the offences. Young offenders report for 4 years or 7.5 years.
Why the report was prepared
The Attorney-General, the Hon Robert Clark MP, asked the Commission to review the registration of sex offenders in April 2011. The request followed a report by the Ombudsman to Parliament about the management of information that registered sex offenders give the police. Victoria Police were found to have not informed the Department of Human Services of more than 300 registered sex offenders who were living with children or had unsupervised contact with them.
The Ombudsman referred in his report to concerns held by various senior office holders about the limitations of the Sex Offenders Registration Act. The Commission found that others with direct experience of the operation of the scheme and the management and treatment of sex offenders share these concerns.
The Commission’s report examines the issues that have arisen from its conduct of the reference. It proposes systemic reform to the registration scheme to strengthen the focus on protecting children from those who may harm them in a sexual way and to enable Victoria Police and the Department of Human Services to direct their resources more effectively to that purpose.
The Commission’s findings
The purpose of the scheme has evolved
The scheme was established to provide information to the police for law enforcement purposes and reduce the likelihood that sex offenders will re-offend. Now, one of its primary functions is to operate as a source of information for child protection authorities about children who may be at risk of harm.
The Sex Offenders Registration Act does not readily accommodate the shift in expectations of the scheme and the Commission has made a series of recommendations to sharpen the focus on the protection of children. The recommendations will enable police to: • better manage those offenders who could pose a risk of sexual harm to children and • provide child protection authorities with timely information about children who might be at risk unless those authorities and the children's parents take action to safeguard the child. Later legislation contributed to the evolving purpose of the scheme
The Sex Offenders Registration Act is one of three statutory post-sentencing schemes in Victoria that seek to protect children from exposure to convicted child sex offenders who are living in the community. As it was the first comprehensive legislative scheme to take a preventative approach to sexual offending in Victoria, it led the government into uncharted territory.
Since then, post-sentencing schemes have been introduced under the Working with Children Act 2005 (Vic) and the Serious Sex Offenders Monitoring Act 2005 (which was replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009). They have contributed to the evolving purpose of the registration scheme by providing additional ways of taking preventative action when responsible authorities fear that a particular convicted sex offender might pose a risk to the sexual safety of children.
The later schemes have taken over and refined some of the preventative expectations of the registration scheme. The Working with Children Act addresses the risk of harm from any sex offenders targeting and sexually abusing children through their paid or voluntary work. The serious sex offenders legislation permits a targeted response when there is evidence to suggest that an offender should be detained in custody, or subjected to close supervision while living in the community, because of an unacceptable risk of re-offending. It applies to offenders who sexually abuse adults as well as those who sexually abuse children.
Expectations of the scheme should take into account the risk of harm to children from sex offenders
Existing research indicates that child sex offenders do not comprise a homogenous and coherent group. For example, commonly held assumptions that child sex offenders have high rates of recidivism and predominantly prey upon children who are unknown to them are not supported by evidence.
Research overseas has found that sex offenders have lower recidivism rates and less criminal history than offenders who commit non-sexual serious crimes. Most serious violent and sex offenders do not have previous convictions for offences of that type, and nor are they convicted again for offences of that type.
Australian research into registered sex offenders has found that: fewer than a quarter of the registered sex offenders studied had previous convictions for sexual offences. 94 per cent abused their own child or a child they already knew. In Victoria, over the period 2006-07 to 2007-08, 93.1 per cent of the charges in Victoria for sexual penetration of a child aged 10 to 16 years were against defendants with no prior convictions for sexual offences. The highest proportion of defendants with a prior sexual offence conviction occurred in cases with charges of sexual penetration of a child aged under 10 (22.5 per cent). Sexual assaults of children by strangers are uncommon. The Australian Bureau of Statistics recorded 1000 victims of sexual assault under the age of 15 in Victoria in 2010. Of these, 399 (40 per cent) were assaulted by family members, 499 (50 per cent) were assaulted by someone else they knew, and 67 (7 per cent) were assaulted by a stranger. In 41 cases, the relationship of the offender to the victim was not known. These results are consistent with findings elsewhere in Australia and overseas. On the other hand, criminological studies demonstrate the existence of a subset of child sex offenders who do re-offend frequently against a high number of victims. The Commission considers that the registration scheme should be refined and strengthened in order to concentrate upon those people who pose the most risk to children.
In his report, the Ombudsman observed that 899 registered sex offenders had reported to the police that they had contact with a child between October 2004 and March 2010. The police did not notify the Department of Human Services about the contact reported by 376 of these offenders. Discovery of this omission saw the Department of Human Services undertake a risk assessment of all of those cases and it found that the 376 offenders had been in contact with a total of 641 children. Following further investigation, most cases did not require further protective action. Of the cases requiring protective intervention, the Department of Human Services only commenced protection application proceedings in the Children’s Court in 11 cases. In half of these protection application cases, the Department’s primary concern was risk of harm from sexual abuse.
The scheme is not adequately focused on the risk of harm to children
As not all sex offenders present the same risk of re-offending, the automatic registration of every adult who commits a sexual offence against a child has extended the reach of the scheme to offenders who are highly unlikely, based on any reasonable assessment, to offend again.
The Sex Offenders Registration Act proceeds on the assumption that all people convicted of the same offence pose the same risk of re-offending and should have the same reporting obligations for the same period. The approach is generic and not based on individual assessments of risk. The current undifferentiated, and generic rather than individual, method of selecting who should be registered has led to a Register which appears to have outstripped initial estimates of size.
The Register, which is becoming increasingly expensive to maintain, contains a vast amount of information of variable usefulness. The Commission found that it is time to assess whether the benefits of the scheme in its current form justify its escalating cost, especially as there are approximately 50 new registrants each month.
As at 1 December 2011, 4165 people had been included on the Sex Offenders Register in the seven years since the scheme commenced. At the current rate of increase, there will be approximately 10,000 registrations by 2020. As details are collected from all registered offenders for many years—and from some for life — the value of the information that is collected is highly likely to decline as the register continues to expand.
Details about people who might be potentially dangerous sex re-offenders sit alongside those of offenders who pose no risk of harm, with police and child protection authorities having no reasonable means of allocating risk ratings, and investigative resources, to particular offenders.
The long reporting periods impose a significant burden on the police to compile and manage information that may be of little operational value in many instances. Demands on the time of child protection workers at the Department of Human Services are also building as the number of reports of contact between registered sex offenders and children continues to rise. Understandably, all of these reports are investigated regardless of the risk of re-offending posed by a particular offender, unless there is compelling evidence of the child's safety.
Recommendations for systemic reform
Strengthening the focus of the scheme Individual assessment instead of automatic inclusion
The Commission considers that if registration were more closely aligned with the risk of harm to children, the rate of growth in numbers of registered offenders might be manageable. The police and child protection resources allocated to administering the scheme and taking protective action could be directed to those people who are more likely to re-offend. 
Replacing automatic inclusion in the register with a process that allows for individual assessment of the offender is highly likely to enhance the effectiveness of a scheme that places a great strain on the resources of Victoria Police and the Department of Human Services without, as yet, any clear evidence of its success in reducing child sexual abuse. Risk management of an offender is best informed by an individual formulation of the risk relating to that offender, rather than by a one size fits all approach.
Revised registrable offences
Another important means of strengthening the scheme's contribution to child protection is by revising the character and categorisation of the offences that lead to registration. The Commission has devised a refined list of offences which will assist in focusing the scheme on offenders who pose a risk of sexually harming children.
The refined list orders the sexual offences against or involving children into three categories according to the type of offending. The categories seek to reflect, in very broad terms, the risk of sexual abuse of children from re-offending.
The Commission proposes that the courts be given clear legislative guidance when making individual assessments of the need for offenders in each category to be registered. They would be required to apply a different test for each category. The policy underpinning these tests is clear: the higher the category of offence, the higher the expectation that the court will make a registration order.
The proposed changes seek to ensure that the court assesses whether the individual offender poses a risk of sexual harm to children. By directing courts to consider whether registration will serve a useful protective purpose, the new system should avoid the over-inclusiveness of the current scheme which has led to unnecessary diversion of police and child protection resources from dealing with people who pose some risk of re-offending.
The practical outcome will be that most adults who commit penetrative sexual offences against children will be registered, and all other child sexual offenders will be registered if the court finds that this step will serve a useful protective purpose.
In the Commission's view, the registration scheme should apply only to offenders who have committed sexual offences against children. Offenders who have committed sexual offences against adults currently account for less than three per cent of all registered offenders. The Serious Sex Offenders (Detention and Supervision) Act provides a more suitable protective legislative response to the risk of harm these offenders pose to the community.
Reporting obligations
Special conditions
All registered sex offenders have the same reporting obligations regardless of their risk of re-offending or their need for assistance to avoid offending behaviour. Again, a generic rather than an individual approach is taken. There is no capacity for individual assessment of the needs of the community or the offender. Consequently, there is no opportunity to include any components that may assist the offender to comply with their reporting obligations or which could reduce the risk of re-offending. There is no scope to impose any additional preventative measures that may assist child protection authorities to safeguard particular children from harm or permit the police to monitor a particular offender more closely than others.
The Commission believes it should be possible to tailor reporting conditions to support registered offenders in functioning successfully in the community and to better manage the risk of harm to children when there are heightened concerns about the likely behaviour of a particular individual.
It recommends that courts should be permitted to impose special conditions that: • provide for offenders who are of particular concern to report more frequently • require an offender with a cognitive disability or mental illness to be accompanied by an independent third person, assigned by the Office of the Public Advocate, when making a report in person • direct an offender to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community • authorise a representative of the Department of Human Services to be present when a registered sex offender is reporting information about their contact with a child or children to the police. 
Duration and extension
The duration of a registered sex offender's reporting obligations depends upon the nature of the offences for which the offender was sentenced, and whether the offender was an adult or a child at the time of committing the offences— again adopting a generic rather than an individual approach.
As at 1 December 2011, 711 of the 2830 registered sex offenders who were living in the community faced lifetime reporting obligations. Another 1178 were required to report for 15 years, while 912 registrants were required to report for 8 years. A person who faces lifetime registration can apply to the Supreme Court for removal after 15 years. It will not be possible for anyone to make an application of this nature until 1 October 2019.
The Commission believes that the current reporting periods should be re-considered because they are producing spiralling workloads for Victoria Police and the Department of Human Services without any evidence of the benefits that such lengthy registration produces. Shorter initial reporting periods for the proposed three new categories of offenders are recommended. Category 1 and Category 2 offenders would be registered for five years, while Category 3 offenders would be registered for three years.
However, the Commission envisages that the total period for which a registered sex offender may be required to report could be longer. It would be possible for the Chief Commissioner of Police to apply to a court to extend a registration order (and the associated reporting period) for all three categories of offenders. There would be no limit to the number of extensions that could be made in relation to a particular offender.
The reviewing court would consider whether further monitoring would be useful and whether additional assistance such as ongoing participation in rehabilitation programs is desirable. A person's registration would cease if no useful preventative purpose would be served by ongoing reporting obligations.
Regular review will provide an incentive to the person to comply with conditions such as rehabilitation programs, and to seek reintegration into the community. It would also enhance the allocation of police and Department of Human Services resources by enabling them to focus on those offenders who pose a real risk of harm.
Suspension
There are only a few circumstances in which reporting obligations may be suspended under the Sex Offenders Registration Act. The Commission understands that the reporting obligations of some registered sex offenders are currently suspended for medical reasons, even though there is no provision under the Act to deal with these situations.
It recommends permitting the Chief Commissioner of Police to suspend the reporting obligations for up to 12 months if satisfied that the offender is no longer able to comply with them due to physical or cognitive impairment.
Transitional arrangements
Implementation of the Commission's proposed changes to the sex offenders registration scheme would result in two very different schemes for two groups of people—those already on the Sex Offenders Register and those placed on the Register by a court order under the revised scheme—unless the new arrangements can be applied to those people now on the Register.
There is a need for consistency in the way sex offenders are managed under a registration scheme, regardless of the time at which they were registered.
The absence of appropriate transitional arrangements would prolong the inefficiency and expense caused by the current undifferentiated and generic approach to the selection of offenders for inclusion on the Register. These arrangements are also necessary as a matter of fairness to existing registered sex offenders so that they are treated in the same way as later registered sex offenders.
After considering various options, the Commission believes that a rigorous, efficient, transparent and fair process would be to establish a panel of experts to review the circumstances of each existing registered sex offender in order to determine how that person should be dealt with under the proposed new scheme.
The Commission proposes that the panel comprise a retired judge, a health professional who is experienced in treating child sex offenders, and at least one other person with experience making decisions about the management of offenders, such as a current or former member of the Adult Parole Board. A panel of this nature should bring appropriate experience to the task of making transitional decisions. Offenders registered under another scheme
All other Australian states and territories have sex offender registration schemes. Each scheme recognises and enforces the registration of offenders under the other schemes. A sex offender who is registered in one state or territory cannot escape their reporting obligations by visiting or moving interstate.
The Commission does not believe that interstate registrants should be encouraged to re-locate in order to benefit from any changes to Victoria's legislation. Victoria should continue to require interstate offenders who re-locate to Victoria to remain on the Register for the period determined by the law in the original jurisdiction.
Police powers and breaches of reporting obligations
The police have the power to enter and search any premises without a warrant when they have reasonable grounds for believing that a registered sex offender has committed the offence of failing to comply with their reporting obligations. The same powers are not available to the police in relation to the offence of furnishing false and misleading information. The Commission believes that the police should be given specific entry and search powers when dealing with all suspected breaches of the Sex Offenders Registration Act. The Commission also proposes that the two offence provisions be combined into a single summary offence for which the maximum penalty is proportionate to the degree of wrongdoing. Reportable contact with children
The Commission makes a number of recommendations to enhance the timely flow of useful information from the Register to the Department of Human Services to assist it in investigating protective concerns about a registered sex offender having contact with a particular child or children. These recommendations include clearly defining the type of 'contact' with a child that registered sex offenders are required to report to police, and amending the process by which information about registered sex offenders' contact with children is collected by Victoria Police and shared with the Department of Human Services. It is necessary that the obligations imposed on registered sex offenders are clear and unambiguous. That is not the case under the current legislation and consequently the Commission has recommended changes to rectify this deficiency.
Child protection prohibition orders
Sometimes a person who has completed a sentence following a conviction for a sexual offence involving a child might behave in a way that is lawful but of concern to the police or child protection authorities. Such behaviour could include contacting a child against whom the person has previously committed offences, or frequenting a place where grooming or other offending previously occurred, such as a municipal swimming pool or park. Other Australian jurisdictions have introduced child protection prohibition orders to enable a court to place restrictions upon this type of behaviour.
Child protection prohibition orders provide a preventative mechanism that permits a court to order that a registered offender not engage in certain types of behaviour or employment, go to certain places, or contact certain people. They are similar to other types of preventative orders made under the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010. The Commission recommends that child protection prohibition orders should be available in Victoria. They would enable Victoria Police to take appropriate action to protect a child who may be at risk of harm from a registered sex offender without child protection authorities having to follow the existing practice of making a protection application in relation to the child.
Information sharing
The Commission's terms of reference direct it to consider 'the management and use of information about registered sex offenders'. The Ombudsman reported that various people expressed concerns to him about the Sex Offender Registration Act's limitations concerning information sharing between Victoria Police, Corrections Victoria and the Department of Human Services.
Sharing by Victoria Police and Corrections Victoria with the Department of Human Services
The Commission believes that the Chief Commissioner of Police should have clear, legislative authority to pass information to the Secretary of the Department of Human Services about a registered sex offender's contact with an identified child or children. That is not the position under the current legislation.
The Commission also recommends amending the Children, Youth and Families Act to authorise the Secretary of the Department of Justice to disclose risk summary reports or assessment reports in relation to a registered sex offender where the Secretary of the Department of Human Services holds concerns about the risk the offender poses to a particular child or children.
Giving information to parents and carers
There are no express powers in the Sex Offenders Registration Act that permit police or child protection workers to inform members of the community that a particular person is a registered sex offender. The Commission considers that, in certain circumstances, police officers and child protection workers should be permitted to disclose to a child's parent or carer that a person having contact with the child is a registered sex offender.
Disclosures of this nature should take place with clear statutory authorisation within narrowly defined circumstances.
Given the sensitivity of the information that would be disclosed, the Commission recommends that the Secretary of the Department of Human Services and the Chief Commissioner of Police authorise only officers of a particular grade or rank (designated officers) to make these disclosures. Further, disclosures should only be made if the designated officer believes, on reasonable grounds, that the disclosure is necessary to ensure the safety and wellbeing of the child. The Commission's proposals draw upon guided disclosures for child protection purposes in the United Kingdom.
Designated officers, parents and carers must comply with court suppression orders and laws concerning identification of victims of sexual offences and children who are, or have been, parties to proceedings. The Commission suggests that the Chief Commissioner and the Secretary of the Department of Human Services keep this matter under on-going review as they are both well placed to recommend legislative action if unauthorised disclosures occur. 
In order to assist the child's parent or carer to respond to a disclosure under the recommended new provisions, the designated officer should be required to refer the child's parent or carer to an appropriate counselling service.
The Commission proposes that, if a designated officer intends to make a disclosure of this kind to a child's parent or carer, that officer should be required to make all reasonable efforts to notify the registered offender prior to making the disclosure. This step will permit registered sex offenders to be involved in the process and prepare themselves for the possible effects of the disclosure. Research from the United Kingdom illustrates the need for any disclosure scheme to complement the rehabilitation of registered sex offenders.
However, if the designated officer believes on reasonable grounds that notifying the registered sex offender before making a disclosure to a parent or carer would endanger the life or safety of any person, they should be permitted to dispense with this requirement.
Contribution to a national approach
The Sex Offenders Registration Act is based on a model endorsed by all state and territory police ministers. All jurisdictions now have similar registration schemes, though they have departed from the model in different ways and are increasingly divergent. Importantly, however, registered offenders cannot avoid their obligations by moving interstate because each state and territory recognises and enforces the reporting obligations imposed in any Australian jurisdiction.
Underpinning the national approach to registration is a national database of registered offenders, known as the Australian National Child Offender Register, to which all police forces and other law enforcement agencies have access. CrimTrac, a Commonwealth executive agency, maintains the database.
Although the Act was passed in the context of building a national approach to registration, and allows Victoria Police to share information with other law enforcement agencies, it does not provide for the disclosure of information to CrimTrac. The Commission recommends that the Act be amended to rectify this anomaly.
Accountability and review
This report, and the Ombudsman's report, have permitted the Victorian Parliament to receive some information about the operation and impact of the sex offenders registration scheme. Such opportunities for review are not currently built into the Sex Offenders Registration Act. The Commission believes they should be.
The Commission recommends: • expanding the compliance monitoring role that has been performed by the Director, Police Integrity and which is expected to be transferred to the Independent Broad-based Anti-corruption Commission, and requiring compliance reports to be tabled in Parliament • requiring the Chief Commissioner of Police to report statistical information on the operation of the scheme to the Police Minister annually, for tabling in Parliament • external review of the effectiveness of the legislation every five years. 
The Commission also recommends further research into the extent to which sex offender registration schemes discourage re-offending. It would be conducted as a national project under the auspices of police ministers.

Confidentiality in Kitson v Playfair

'Privileged Communications: Medical Confidentiality in Late Victorian Britain' by Angus McLaren in (1993) 37 Medical History 129 comments
Do doctors have the right, indeed the duty, to keep confidential everything that is imparted to them by their patients? Such secrecy certainly seems to be demanded by the Hippocratic Oath:
Whatever, in connection with my professional practice or not in connection with it, I see or hear in the life of men which ought not to be spoken abroad I will not divulge,as reckoning that all such should be kept secret. 
But at the turn of the century a number of court cases brought home to British doctors the fact that there were no hard and fast rules governing disclosure. Some in the profession argued that since medical colleagues in Europe and parts of North America had the legal right to defend the secrecy of their "privileged communications", British doctors' reputations would suffer if they did not win the same power to guard secrets. At the June 1920 meeting of the British Medical Association a resolution urged its members to fight to keep confidential what they learnt in their consulting rooms. Doctors opposed to such views immediately made their voices heard. One asked rhetorically if the physician was to remain blithely silent and indifferent when he knew that a male patient suffering from venereal disease risked infecting his innocent family. "Does that resolution mean this - that we are, as a profession, to allow a bounder to live and his wife and child to die?" In conjuring up the image of the chivalrous physician gallantly protecting a wife from her brutish husband, those arguing in favour of a doctor's right to decide when and if to divulge information struck upon an appealing ploy. Who could fail to respond to the call to protect women and children? But if doctors were simply relied upon to use their discretion and good sense in such matters, was it likely that most would turn their knowledge to the purposes of protecting the weak from the strong, women from men, servants from their masters?  
Only when a court action ensued was the fact that a doctor had disclosed a patient's secrets brought to public attention. Accordingly, an obvious way of probing the complexities raised by the issue is to examine what was long taken to be Britain's most publicized test of "privileged communication", the sensational Kitson versus Playfair trial of 1896. This celebrated case centred on a doctor's defence of his right of betraying, not a male, but a female patient's confidences. The primary importance of the trial and the responses made to it both inside and outside the medical profession is that it casts a revealing light on late-nineteenth-century doctors' confused understanding of exactly what confidentiality meant, a confusion exacerbated rather than clarified by court rulings. Secondly, the case demonstrates how the medical profession found, to its discomfort, that it was not left alone to police its duties, but was dictated to by its old rival, the legal profession. The last, though certainly not the least significant, aspect of the trial is that it shows how class and gender preoccupations shaped the practices of both law and medicine. The legal wrangles in Kitson v. Playfair took such surprising twists and turns precisely because such preoccupations were used to counter both the leter of the law and the scientific pronouncements of the London medical elite.
McLaren concludes -
At the turn of the century the discussion of privileged communication took place within the context of rising public preoccupation with venereal disease, declining fertility, and changing sex roles. The press and laity thought that the Kitson v. Playfair trial had played an important role in establishing a clearer definition of doctors' duties as regards confidentiality. This was, as we have seen, untrue. Despite the general belief that doctors followed some elaborate secret code of ethics, the reality still was, noted one 1905 commentator, that "obedience to the dictates of medical ethics implies application to the ordinary chances of professional life of the rule that a man should do as he would be done by". In the age of AIDS the whole question of medical disclosure is being debated once more. Is the assumed good sense and ethical behaviour of doctors sufficient protection against abuse of the patient's confidences? A review of Kitson v. Playfair serves as a timely reminder that it is not quite that simple, that it is impossible to disentangle ethical issues from class, gender, and professional preoccupations.

19 August 2014

ACT Information Privacy Commissioner

In two steps forward one step backward mode the ACT Government has announced that the national Privacy Commissioner (who at this state is expected to move to the Human Rights Commission at the end of the year when the OAIC ceases to exist) will act as the Territory's Information Privacy Commissioner. That role was established by the Information Privacy Act 2014 (ACT).

The ACT Attorney-General indicates that the Government has
signed a new memorandum of understanding with the Office of the Australian Privacy Commissioner for privacy services in the ACT. 
Attorney General, Simon Corbell, said the arrangement provided the ACT with quality privacy services that draw on the commission's long established expertise in working to improve privacy protection and awareness. 
Under the MOU, which will operate from 2014 over three years until 2017, the Australian Privacy Commissioner will act as the ACT Information Privacy Commissioner and will be responsible for investigating and resolving privacy complaints about the handling of personal information by the ACT Government. 
The ACT Government committed an additional $320,000 funding over four years in the 2014-15 Budget to expand the range of services provided to the ACT to support privacy protection. 
In addition to handling complaints and the continuation of a system for regular assessments of the information handling practices of specific agencies, the MOU includes privacy policy and legislative advice to the ACT Government and to MLAs. 
Access to these services will allow ACT Government agencies to effectively administer privacy requirements under the new Information Privacy Act 2014. 
"The independent oversight and auditing of information handling by ACT Government directorates under this MOU will help protect the privacy of Canberrans," Mr Corbell said.
Given uncertainties about resourcing of the national Commissioner and - more subtly - its passivity  or permissiveness the agreement is a step back.

new ACT Events Regime

The Australian Capital Territory is to introduce a Major Events Bill 2014 (ACT) to "establish new legislation for security management and commercial protections for major events".

The Bill is an echo of the Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth) noted here and the more problematical Queensland legislation highlighted here.

ACT Attorney-General Simon Corbell comments that
This legislation is a critical part of the ACT's preparations for hosting games as part of the Asian Football Confederation (AFC) Asian Cup and the International Cricket Council (ICC) World Cup in 2015. 
The Bill repeals the Major Events Security Act 2000 (ACT), introduced ahead of the Sydney Olympics.

The Bill makes "important changes to improve the operation and management of major events in the ACT" by -
  • creating a new scheme for major event declarations. 
  • allowing additional crowd management security provisions to apply at certain declared events. 
  • allowing advertising and intellectual property rights protection at declared events. 
  • making pitch invasion an offence. 
  • prohibiting ticket scalping. 
  • giving police and authorised people improved capacity to effectively manage security, including the ability to search bags and others items including through the use of electronic scanning. 
Corbell indicates that event organisers and corporate sponsors will benefit from
new prohibitions on advertising near major event venues and the use of protected symbols without permission. Symbols such as logos, designs, emblems or words can be declared as 'protected symbols' for a defined period.