18 August 2017

Balmain New Ferry

The delicious 'False Imprisonment, Fare Dodging and Federation — Mr Robertson’s Evening Out' by Mark Lunney in (2009) 31 Sydney Law Review 537 argues that
The decisions of the High Court and the Privy Council in Robertson v The Balmain New Ferry Company Ltd retain their place in modern tort texts discussing false imprisonment. This is surprising because the reasoning is frequently considered unclear at best or incorrect as worst. This article considers the case in two historical contexts to evaluate these views. The first context considers contemporary legal doctrine by exploring the significance of the pre-Judicature Act pleading rules applicable in New South Wales and the gap in the contemporary law that made the company’s method of enforcing fare collection problematic. Despite these impediments, the commercial pressures to uphold the system of fare collection proved sufficient to overcome these objections. The second, broader, historical context explores the reaction to the decision of the High Court as an aspect of lingering anti-federal sentiment in New South Wales. The analysis reveals a uniquely Australian context to the decision and reveals the potential of studies of the history of private law to contribute to the history of Australian law more generally. 
Lunney comments
The decision of the Privy Council in the case of Robinson v Balmain New Ferry Co Ltd remains a part of many tort courses and tort textbooks in common law countries. et the reason for including it tends to be to dismiss it as out of line with general principle, as non-representative rather than paradigmatic. It is explained away as an aberration, a task made easier by the eccentricity of its facts. Whilst for explanatory purposes this is a perfectly satisfactory way of dealing with the case as part of the modern law of tort, it leaves open a number of questions. First, if the case was considered contrary to general principle, why did the decisions of both the High Court of Australia and the Privy Council find comprehensively in favour of the ferry company? Analysis of contemporary legal doctrine suggests a lacuna in the law relating to the operation of the system of collecting fares adopted by the ferry company. The matter was of enormous importance to ferry companies: a result in favour of Robertson would have mandated significant change in ferry companies’ practices. The way that the legal lacuna was filled by both the High Court and the Privy Council avoided this commercially undesirable result — albeit with reasoning that gave short shrift to the pleading rules that operated in New South Wales — and ignored well-established limitations on the circumstances in which a person’s imprisonment could be justified. 
The emphasis that Robertson placed on pleading rules in his argument may reveal a subtler context. In the High Court and in the petition for leave to appeal to the Privy Council, Robertson stressed the importance of respecting the pleading rules of New South Wales. The concern that State law might be ignored by the federal High Court needs to be viewed in the context of a High Court that was barely three years old and a federation that had been formed less than a decade before. The reaction to the decision of the High Court demonstrates that anti-Federation sentiment had not simply gone away after 1901. Given the status of the plaintiff, Archibald Nugent Robertson, the decision of the High Court provided a suitable focus for some of that sentiment, in terms of specific criticism of the High Court, as well as for more general expressions of dissatisfaction with Federation. In short, the case demonstrates the potential significance of Australian legal history, in particular the history of private law, to explanations of wider historical trends in Australia, an area that deserves far greater attention than it has thus far received. ... 
This article has attempted to place the decision in Robinson v Balmain New Ferry Co Ltd in its historical context. That context is a complex amalgam with both an internal and an external dimension — a dimension that was understood and controlled by the lawyers and a dimension that went beyond the intricacies of pleading and doctrine. Whatever the merits of the competing legal arguments — and in many ways Robertson’s were stronger — the ferry company was not prepared to limit its case by reference to relatively narrow points of law. By the time the case reached the High Court, the commercial ramifications of a decision in Robertson’s favour were explicitly pointed out by the ferry company. The High Court and the Privy Council were not prepared to jeopardise the established system of fare collection; as the Balmain Observer put it, the ferry company’s rules had been endorsed by its victory. That the decision has proved to be of limited practical importance merely demonstrates its expediency: the commercial imperative of the ferry company could not generate a rule of general application. Viewing the case in its historical context may not change our views as to the result, but it does allow us to explore the interplay between the internal and external dimensions of legal reasoning. It demonstrates that these contexts were not mutually exclusive. As David Ibbetson has shown, the way a case is put by lawyers to the court is fundamental to how the case is decided, and this is evidenced by the varying ways the case was put to the courts by the ferry company’s lawyers. The ferry company was allowed to detain Robertson not just because he had entered into a contract but because the High Court was aware of the commercial consequences of a decision in his favour. This is not to deny the force of reasoning processes internal to law but merely suggests that in some cases, at least in the past, judges and courts did consider the consequences of their decisions, and in doing so, may have considered matters beyond legal doctrine. 
At a broader level, Robertson also shows the value of historical analysis of private law in Australia. The history of tort law in Australia after Federation remains to be written, and Robertson is a good example of the merits of such a project. It reveals an Australian court dealing with a case of first impression that forced it to make new law, a law which was in fact endorsed by the Privy Council. As Bruce Kercher notes, the observation that Australian courts merely copied the English common law ‘should be a commencing point of historical analysis, a hypothesis to explore, rather than a conclusion’. He notes that ‘[w]hen this history is written, we might well find that the High Court was less deferential to English law than we presently assume’. We may also find, as in Robertson, that there were peculiarly Australian contexts in which court decisions and legislation were made. It would be going far too far to think that the High Court justices in Robertson were out to get him, but Robertson does illustrate that decisions are not made in an historical vacuum and, at least to some degree, reflect contemporary historical and political currents. Viewed in this light, the reaction to Robertson represents a remnant of the defeated, but not extinguished, anti-Federation sentiment, a sentiment that at the time was not doomed to failure.
Whatever else this article has achieved, it is hoped that law students of the future may have cause to challenge Harold Luntz’s assessment of Robertson as ‘the arrogant barrister plaintiff’. Pompous he no doubt was, but as this article has demonstrated, he had good reason to think the law was on his side. Nor can one can doubt the sincerity of his belief in the virtue of his cause. We may not have liked him, but we should, perhaps, respect the actions of a man who, in a different era, might have been championed as a defender of civil liberties. 
This article would not be complete without an observation on another well-known aspect of the case — why the authorised report of the Privy Council decision refers to him as Robinson rather than Robertson. There is certainly no error in the Privy Council record, so the mistake must have been made at the printers. An educated guess is that the problem arose from the name ‘Nugent’, an uncommon name which Archibald Nugent Robertson shared with a reasonably well-known contemporary American writer, Nugent Robinson. The printer may well have inadvertently made the connection with Nugent Robinson, and this is what appears in the printed report. The result was, as Professor Tony Blackshield’s ditty on the case records, not only that Robertson lost, but, to add insult to injury, ‘[t]hey couldn’t even spell your name’.

Medicare Numbers Data Breach Inquiries

The national government has announced an Independent Review of health providers’ access to Medicare card numbers, with a final report to be provided by 29 September 2017.

The inquiry is separate to the Senate inquiry announced last week (see below) and is concerned with claims that Medicare card details are being sold on the internet.

The deadlines for public submissions to both inquiries is notably short.

Independent Review

The Independent Review involves Professor Peter Shergold (former Secretary of the Department of Prime Minister and Cabinet), Dr Michael Gannon (President of the Australian Medical Association), Dr Bastian Seidel (President of the Royal Australian College of General Practitioners) and Dr Kean-Seng Lim (Australian Medical Association). Unsurprisingly, the Review does not involve a consumer representative; privacy advocates and users of the health system will presumably contribute through responses to the Review consultation paper.

Members of the Review will be "examining access by health professionals to Medicare card numbers by using the Health Professional Online Services (HPOS) system or by calling" the Department of Human Services.

The Department states
The Australian Government wants to ensure the system is convenient and secure. The system hasn’t been significantly changed since its establishment 8 years ago.
A 2014 ANAO report was noted here.

In July this year Dr Gannon was reported as worrying that the Medicare number data breach would undermine patient confidence in the much-criticised MyHealth Record (MyHR) system, with the AMA accordingly seeking an assurance that a similar breach could not occur with MyHR.
This is a deeply concerning development. It is so important that this information has integrity. 
It’s so important, as it is with a paper record, as it is with other forms of communication about deeply personal matters that they are secure.
The electronic health record has the potential to reduce adverse drug reactions, to reduce unnecessary duplications of investigations, but to do all that, both doctors and patients need absolute confidence in the integrity of personal information.
The Review's terms of reference and scope are -
The Review will consider the balance between appropriate access to a patient’s Medicare number for health professionals to confirm Medicare eligibility, with the security of patients’ Medicare card numbers. 
The Review will examine and advise on:
  • the type of identifying information that a person should be required to produce to access Medicare treatment in both urgent and non-urgent medical situations 
  • the effectiveness of controls over registration and authentication processes at the health provider's premises to access Medicare card numbers 
  • security risks and controls surrounding the provision of Medicare numbers across the telephone channel, and the online connection between external medical software providers and HPOS 
  • the sufficiency of control by patients and the appropriateness of patient notification regarding access to their Medicare number 
  • the adequacy of compliance systems to identify any potential inappropriate access to a patient’s Medicare number 
  • any other identified area of potential weakness associated with policy, process, procedures and systems in relation to accessibility of Medicare numbers. 
Based on the examination of the issues above, the Review will make recommendations for immediate practical improvements to the security of Medicare numbers, while continuing to ensure people have access to the healthcare they need in a timely manner. 
The Review may also make recommendations for medium to longer term changes, or at least the identification of areas that need further examination, to ensure the security of the system and protection of information of Australians.
The consultation questions in the Independent Review's discussion paper are summarised as
1. Do patients have sufficient control and awareness of access to their Medicare card details? 
2. What identifying information should patients have to produce to access health services? 
3. Are the current access controls for HPOS sufficient to protect Medicare information and prevent fraudulent access? 
4. What would the impact on health professionals be if they were required to move from an individual or site level PKI certificate to a PRODA account? Would any enhancements to PRODA be required for health professionals to accept it as a replacement? 
5. If PRODA accounts and PKI certificates were to be suspended following a period of inactivity, what processes or alerts would the Department need to put in place? What would be a reasonable period of inactivity before accounts were suspended?  
6. If delegate arrangements in HPOS were to be time limited, what processes or alerts would the Department need to put in place? What would be a reasonable period for delegate arrangements to last before they require review? 
7. In what circumstances do health professionals need to make batch requests for Medicare card details through HPOS Find a Patient? Can such requests be limited to certain types of providers or health organisations? Should they be subjected to a higher level of scrutiny? 
8. In what circumstances do health professionals require access to Medicare card numbers through the provider enquiries line? Could the provider enquiries line be made available in more limited circumstances? 
9. Is the information available to health professionals regarding their obligations to protect Medicare card information (including the terms and conditions for accessing this information online) sufficiently clear and understood? 
10. Should Medicare cards continue to be used as a form of evidence of identity? 
11. How can Government build public awareness of why it is important for individuals to protect their Medicare card information? 
12. Do you have any other comments about the Review Panel’s possible responses or any other matters relating to the Terms of Reference?
Senate Inquiry

The Senate Finance and Public Administration Committees inquiry into 'The circumstances in which Australians’ personal Medicare information has been compromised and made available for sale illegally on the ‘dark web’' is concerned with
  •  any failures in security and data protection which allowed this breach to occur; 
  • any systemic security concerns with the Department of Human Services’ (DHS) Health Professional Online Services (HPOS) system; 
  • the implications of this breach for the roll out of the opt-out My Health Record system; Australian government data protection practices as compared to international best practice; 
  • the response to this incident from government – both ministerial and departmental; 
  • the practices, procedures, and systems involved in collection, use, disclosure, storage, destruction, and de-identification of personal Medicare information; 
  • the practices, procedures, and systems used for protecting personal Medicare information from misuse, interference, and loss from unauthorised access, modification, or disclosure; and 
  • any related matters. 

17 August 2017

Compassion

'Compassion and the Rule of Law' by Susan A. Bandes in (2017) 13 International Journal of Law in Context 184  considers
the tensions between compassion and the rule of law. Compassion poses difficult challenges for the rule of law. The compassionate response is often cast as a deviation from settled law rather than a principled application of it. Compassion so understood is troubling, most obviously because it poses a challenge to overall fairness, notice, and consistency. The invocation of compassion to justify law reform is also troubling. It implies that solutions to inequality and other injustices are a matter of charity and mercy, rather than a matter of correcting wrongs and expanding rights.
I argue that compassion cannot serve as a reliable indicator of who should prevail in legal debates. I propose instead that compassion’s importance lies in its ability to illuminate for decision-makers what is at stake for the litigant. In this sense, compassion is closely tied to humility: both are reminders of human fallibility and of the limits of individual understanding. More fundamentally, compassion may serve as one of the core values informing the debate about the scope of individual rights and the proper role of government in protecting them.

Safe Harbours

'A Comparative Analysis of the Secondary Liability of Online Service Providers' by Graeme Dinwoodie in Graeme Dinwoodie (ed) Secondary Liability of Internet Service Providers (Springer, 2017) analyses
the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity. The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny. The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of the landscape in this area, especially but not exclusively in the EU. Service providers in several fields, most notably intellectual property law, are being required actively to assist in preventing wrongdoing by third parties regardless of their own fault (but for example, engaging in so-called “web-blocking” of allegedly infringing sites). These mechanisms, found in several legislative instruments but developed in greater detail by courts through applications in private litigation, operate to create a quasi-regulatory network of obligations without imposition of full monetary liability. The Chapter concludes by considering briefly whether generally applicable principles can be derived from, and extended beyond, the specific context in which they first arose. This analysis leads to two central propositions, which it is argued hold true descriptively and warrant endorsement prescriptively. First, an assessment of secondary liability cannot be divorced from (and indeed must be informed by) the scope of primary liability or other legal devices by which the conduct of service providers or their customers is regulated. And, second, despite the claims that secondary liability is simply the application of general principles of tort law, secondary liability is rarely a subject-neutral allocation of responsibility among different potential defendants according to autonomous principles of fault; rather, it maps in part to the policy objectives of the different bodies of law where the claim of (secondary) liability arises.

15 August 2017

Edumetrics

'The Structural Consequences of Big Data-Driven Education' by Elana Zeide in (2017) 5(2) Big Data 164-172 comments
Educators and commenters who evaluate big data-driven learning environments focus on specific questions: whether automated education platforms improve learning outcomes, invade student privacy, and promote equality. This article puts aside separate unresolved—and perhaps unresolvable—issues regarding the concrete effects of specific technologies. It instead examines how big data-driven tools alter the structure of schools’ pedagogical decision-making, and, in doing so, change fundamental aspects of America’s education enterprise. Technological mediation and data-driven decision-making have a particularly significant impact in learning environments because the education process primarily consists of dynamic information exchange. 
In this overview, I highlight three significant structural shifts that accompany school reliance on data-driven instructional platforms that perform core school functions: teaching, assessment, and credentialing. First, virtual learning environments create information technology infrastructures featuring constant data collection, continuous algorithmic assessment, and possibly infinite record retention. This undermines the traditional intellectual privacy and safety of classrooms. Second, these systems displace pedagogical decision-making from educators serving public interests to private, often for-profit, technology providers. They constrain teachers’ academic autonomy, obscure student evaluation, and reduce parents’ and students’ ability to participate or challenge education decision-making. Third, big data-driven tools define what ‘counts’ as education by mapping the concepts, creating the content, determining the metrics, and setting desired learning outcomes of instruction. These shifts cede important decision-making to private entities without public scrutiny or pedagogical examination. In contrast to the public and heated debates that accompany textbook choices, schools often adopt education technologies ad hoc. Given education’s crucial impact on individual and collective success, educators and policymakers must consider the implications of data-driven education proactively and explicitly.

Interceptions

The Attorney-General’s Department has released Telecommunications (Interception and Access) Act 1979: Annual Report 2015–16.

The Executive Summary states
The Telecommunications (Interception and Access) 1979 Act Annual Report 2015–16 sets out the extent and circumstances in which eligible Commonwealth, State and Territory government agencies have used the powers available under the Telecommunications (Interception and Access) Act 1979 (TIA Act) between 1 July 2015 — 30 June 2016. 
The primary function of the TIA Act is to allow lawful access to communications and data for law enforcement and national security purposes, in a way that protects the privacy of people who use the Australian telecommunications network. Serious and organised criminals and persons seeking to harm Australia’s national security routinely use telecommunications services and communications technology to plan and carry out their activities. 
The TIA Act provides a legal framework for national security and law enforcement agencies to access the information held by communications providers that agencies need to investigate criminal offences and other activities that threaten safety and security. The access that may be sought under the TIA Act includes access to telecommunications data, stored communications that already exist or the interception of communications in real time. Each of the powers available under the TIA Act is explained below. 
The use of warrants to intercept and access stored communications is independently overseen by the Commonwealth Ombudsman and equivalent state bodies. The independent oversight role of the Commonwealth Ombudsman was extended to access and use of telecommunications data under the TIA Act on 13 October 2015. 
Legislative reforms 
Data Retention Act 
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Data Retention Act) came into effect on 13 October 2015. The Data Retention Act standardised the data telecommunications companies are required to retain and introduced a mandatory retention period of two years. It also introduced a requirement for carriers to encrypt and protect retained data. 
The Data Retention Act significantly limited the range of agencies that can apply for a warrant to access stored communications or authorise the disclosure of telecommunications data under the TIA Act. The ability to apply for a stored communications warrant is limited to 20 designated ‘criminal law-enforcement agencies’. The ability for enforcement agencies to authorise the disclosure of telecommunications data has also been limited to the same 20 criminal law-enforcement agencies and the Australian Security Intelligence Organisation (ASIO). 
The Data Retention Act also introduced additional record-keeping and reporting obligations relating to the access to and use of telecommunications data. This information is set out in Chapter 3 of this report. 
Public interest advocate regulations 
The Data Retention Act prohibits ASIO and enforcement agencies from authorising the disclosure of telecommunications data of a journalist or their employer where a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained. The journalist information warrants regime recognises the public interest in protecting journalists’ sources while ensuring agencies have the investigative tools necessary to protect the community. 
When considering an application for a journalist information warrant, the TIA Act requires that the Attorney-General or issuing authority is satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source. The regime is supported by the Public Interest Advocates who promote the rights of a journalist to seek and impart information by independently considering and evaluating warrant applications and providing independent submissions in the warrant application process. The Telecommunications (Interception and Access) Regulations 1987 have been amended to set out the procedure for applying for a journalist information warrant. These Regulations support the role of Public Interest Advocates by ensuring effective consultation and allowing submissions to be made in warrant applications. 
Key judicial decisions 
In 2015, a jury convicted three parties for offences under section 45 of the Crimes Act 1900 (NSW), which prohibits female genital mutilation (FGM). The first party was convicted of performing FGM on two girls at the request of the second party, their mother. The third party was convicted as being an accessory after the fact in relation to the events. Electronic evidence gathered under the TIA Act and the Surveillance Devices Act 2007 (NSW) formed a critical part of the police investigation, the prosecution case and the subsequent sentencing of the offenders. This was NSW’s first successful prosecution for these types of offences and resulted in penalties ranging from home detention to imprisonment for 15 months. 
Key findings 
• In 2015–16, 3,857 interception warrants were issued. 
• During 2015–16, information obtained under interception warrants was used in: o 3,019 arrests o 3,726 prosecutions o 1,812 convictions. 
• In 2015–16, 63 enforcement agencies made 333,980 authorisations for the disclosure of historical telecommunications data. Of these, 326,373 authorisations were made to enforce a criminal law. Due to the reduction in agencies authorised to request data, as a result of the Data Retention Act, 43 of these agencies only reported for the period between 1 July 2015 and 12 October 2015. 
• From 13 October 2015 — 30 June 2016 the majority of criminal law offences for which historical data was requested was illicit drug offences (57,166 requests). 25,245 requests were made for homicide and related offences and 4,454 requests were made to assist in terrorism investigations. 
• In 2015–16, 33 authorisations were made under two Journalist Information Warrants. This is the first year the Journalist Information Warrants scheme has been operating. 
• In 2015–16, law enforcement agencies made 366 arrests, conducted 485 proceedings and obtained 195 convictions based on evidence obtained under stored communications warrants. 
Access to the content of a communication 
Accessing content, or the substance of a communication—for instance, the message written in an email, the discussion between two parties to a phone call, the subject line of an email or a private social media post—without the knowledge of the person making the communication is highly intrusive. Under the TIA Act, unless access occurs in certain limited circumstances, such as a life threatening emergency, access to stored communications or interception can only occur under either an interception or stored communications warrant. Access to a person’s communications is subject to significant oversight and reporting obligations. The annual report is an important part of this accountability framework. 
Accessing communications is an effective investigative tool that supports and complements information obtained by other methods. In some cases, the weight of evidence obtained by either an interception or a stored communications warrant results in defendants entering guilty pleas, thereby eliminating the need for the intercepted information to be introduced into evidence. 
Telecommunications data 
A critical tool available under the TIA Act is access to telecommunications data. 
Telecommunications data is often the first source of lead information for investigations, helping to eliminate potential suspects and to support applications for more intrusive investigative tools including search warrants and interception warrants. For example, an examination of call charge records can show that a potential person of interest has had no contact with suspects being investigated. 
Telecommunications data gives agencies a method for tracing telecommunications from end-to-end. It can also be used to demonstrate an association between people, or to prove that two or more people spoke with each other at a critical point in time. Access to telecommunications data is regulated by Chapter 4 of the TIA Act, which permits an authority or body that is an ‘enforcement agency’ under the TIA Act to authorise telecommunications carriers to disclose telecommunications data where that information is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue. 
During the 2015–2016 reporting period all enforcement agencies could access historical data and only criminal law enforcement agencies could access prospective data to assist in the investigation of offences punishable by at least three years’ imprisonment. The Data Retention Act, passed by the Parliament in March 2015, reduced the number of enforcement agencies that may access telecommunications data to 20 specified agencies and ASIO. The Attorney-General may declare additional agencies in prescribed circumstances. No additional agencies were prescribed in the 2015–16 reporting period.

14 August 2017

Always look on the bright side

The Australian Information and Privacy Commissioner last week reported conclusion of an investigation into the Australian Red Cross Blood Service’s DonateBlood.com.au data breach.

The OAIC media release states
The Commissioner considers that the community can have confidence in the Australian Red Cross Blood Service’s commitment to the security of their personal information, following his investigation.
The investigation found that a file containing information relating to approximately 550,000 prospective blood donors was saved to a publicly accessible portion of a webserver managed by a third party provider. This was an inadvertent error by an employee of the third party provider. Upon being notified, the Australian Red Cross Blood Service took immediate steps to contain the breach and notify affected individuals.
‘Data breaches can still happen in the best organisations — and I think Australians can be assured by how the Red Cross Blood Service responded to this event. They have been honest with the public, upfront with my office, and have taken full responsibility at every step of this process,’ said the Commissioner.
While the Blood Service had in place policies and practices to protect personal information as required by the Privacy Act 1988, there were two matters within the Blood Service’s control that were a contributing factor to the data breach.
An observer who is less inclined to embrace the OAIC's 'always look on the bright side' philosophy might conclude that the "policies and practices" in place were inadequate and that there are grounds for reviewing expectations.

The media release goes on to state
‘This incident is an important reminder that you cannot outsource privacy obligations. All organisations must put in place reasonable measures to ensure their third party providers’ compliance with appropriate privacy and data security practices and procedures.’
The Blood Service has enhanced its information handling practices since the incident and has provided assurance to the Commissioner and the Australian community through an enforceable undertaking. The third party contractor, Precedent Communications Pty Ltd, has also provided an enforceable undertaking with the Commissioner’s office.