21 July 2016

Australian Universities Funding

The LH Martin Institute has released a report [PDF] by Frank Larkins and Ian Marshman on Domestic Student Load and Financing Trends at Individual Australian Universities: A Comparative Analysis of the Period 2004 to 2009 with 2009 to 2014.  The report raises questions about winners, losers and the quality of tertiary education as a result of uncapped places.

The authors comment
A review of the responses of individual universities to the uncapping of domestic government supported undergraduate places has highlighted a wide diversity of responses with some unexpected outcomes. The study follows a previous one that examined trends on a system-wide basis highlighting major domestic student growth between 2009 and 2014, coupled with an increased dependency on government funding. The key findings pertaining to individual universities are discussed in section 4. 
Some findings highlighting very different responses by universities are:
• The standout universities in terms of domestic student growth in the five years to 2014 are, Deakin, ACU, RMIT, Curtin, Swinburne, Western Sydney and Macquarie each with growth of more than 6,000 EFTSL. No university had this level of growth in the previous five years from 2004. 
• Marginal growth of less than 1,000 EFTSL was recorded by Southern Cross, Murdoch, and Victoria U, while Federation, Charles Darwin and ANU reported growth of less than 1,500 EFTSL. 
• The seven universities that have made the largest gains in domestic student revenues since 2009 are Deakin ($166.5m), ACU ($162.6m), RMIT ($141.3m), Curtin ($134.5m), Queensland ($133.4m), Swinburne ($128.1m) and Western Sydney ($120.7m). All of these universities, except Queensland, experienced a reduction in the rate of growth in overseas student revenue during the same period compared with the previous five years 2004 to 2009. 
• Surprisingly, eleven universities increased their domestic T&L funding by more than $100m between 2009 and 2014 compared with only two between 2004 and 2009. 
• While all universities increased their government teaching and learning funding from 2009 to 2014, only one-third of the universities increased their domestic fee-paying income in this five year period. This contrasts with the previous five years when two-thirds of the universities increased their domestic fee-paying revenues. 
• The universities that have maintained their focus on overseas student revenue growth have been mainly four of the Go8 universities. As a result, in the five years to 2014 the universities with the highest combined domestic and overseas teaching and learning revenue growth were Melbourne at $242m, Queensland at $226m, Sydney at $211m and UNSW at $195m. The changes in domestic T&L revenue growth and the changes in overseas student fee revenue growth for the two five year periods under consideration are given in Tables B2 and B5 respectively for all 38 universities examined.
The authors comment
.... it seems that as a result of introduction of the demand-driven system, Australian universities have generally opted for growth in domestic places supported either by Commonwealth loans and/or grants. A small number of universities has continued to pursue growth in international students. The universities which seem to have taken most advantage from the change in funding for domestic places are generally a select number of relatively diverse teaching-intensive universities which have shown a readiness to respond to the change in policy. Queensland is the only G8 university in this group. 
Our findings have led to the identification in section 5 of five key policy areas that warrant consideration in any review of national higher education policy. The issues identified are presented here in the form of questions. 
• Given the rate of change that has occurred within some institutions, are universities adequately accountable for demonstrating that their quest for growth is in the national interest and has not been at the expense of quality? 
• Is it in the public interest that teaching and learning funding continue to be allocated exclusively on the basis of student load rather than at least partially on the basis of completions or other output measures, whether at award or unit level? 
• What policy measures might government contemplate to strengthen strategic capability across the sector given the variability of university outcomes identified in the present work? 
• In an uncapped domestic enrolment system there appears to be a very limited market for domestic fee-paying courses. What alternative options might enable the higher education system to become more fiscally sustainable over the longer term? 
• Is the current escalating level of government funding for teaching and learning, coupled with a declining government investment in research training and research, the right approach to contribute long term economic and social benefits for Australia?

Hosking v Runting

In a view from 2014 'Balancing the Right to Privacy and Freedom of Expression: Re-evaluating Hosking v Runting in the Light of Recent Developments in English Privacy Law' by Abby Ward examines
the potential impact of recent English privacy jurisprudence on the New Zealand tort of privacy. The paper contrasts the New Zealand Court of Appeal’s aversion towards an over-expansive privacy right expressed in Hosking v Runting with an increasing readiness to override freedom of expression in favour of privacy interests in the United Kingdom. Three central conflicts in the courts’ reasoning are addressed in detail, namely privacy’s relationship with public places, individuals with public profiles and mediums of publication. While developments in English privacy law highlight reasoning flaws and theoretical shortcomings in Hosking, the increasing influence European jurisprudence on English law may nevertheless justify some divergence in the two jurisdictions’ balancing of privacy and freedom of expression. 

Crimping Political Communication in the ACT administration?

The ACT Legislative Assembly Standing Committee on Justice and Community Safety (Legislative Scrutiny) has offered cogent criticisms [PDF] of the Public Sector Management Amendment Bill 2016 (ACT).

The Bill serves to crimp criticism by public servants of the Territory administration and is of interest to privacy, constitutional and employment law scholars (for example those noting Banerji v Bowles).

The Committee highlights executive overreach, commenting
This is a Bill to amend the Public Sector Management Act 1994 so that it will cover all ACT Public Sector entities except Territory owned corporations; formally establish the Senior executive Service; contain heads of power for the employment of ACT public servants; vest all employment powers at the Head of Service level; and apply the ACTPS values to the whole of the public sector.
Do any provisions of the Bill amount to an undue trespass on personal rights and liberties?— paragraph (3)(a) of the terms of reference
Report under section 38 of the Human Rights Act 2004
THE RIGHT TO FREEDOM OF EXPRESSION (HRA SECTION 16) AND THE COMMONWEALTH CONSTITUTION’S FREEDOM OF POLITICAL COMMUNICATION AND THE PROPOSED PROVISION THAT A PUBLIC SERVANT MUST NOT ENGAGE IN CONDUCT THAT CAUSES DAMAGE TO THE REPUTATION OF THE SERVICE OR THE EXECUTIVE 
Clause 6 of the Bill provides for a substituted division 2.1 of the Act, and is entitled “Public sector standards”. Proposed section 9, which is headed “Public sector conduct”, gives rise to a number of human rights issues. This is acknowledged and dealt with in a cursory way in the Explanatory Statement (at page 7), and the matter requires deeper analysis.
Proposed paragraph 9(2)(a) of the Public Sector Management Act 1994 provides that a public servant must not engage in conduct that causes damage to the reputation of the service or the Executive. What follows is the entirety of the Explanatory Statement comment on this proposal:
Section 9(2)(a) deliberately includes actions by a public servant that are undertaken outside of official duties. Emergent case law on the impact of out of hours conduct on the employment relationship demonstrates increasing societal and institutional acceptance of this connection. This is particularly true of employee participation in social media fora where there is significant potential for reputational damage to the employer. The need to retain public confidence in the public service outweighs any impingement on an individual’s right to privacy, freedom of expression or participation in democratic processes.
The conduct proscribed by paragraph 9(2)(a) will embrace speech, and paragraph 9(2)(a) thereby engages and derogates from HRA subsection 16(2) (the right to freedom of expression), and section 17 (“the right, and ... the opportunity, to (a) take part in the conduct of public affairs, directly or through freely chosen representatives”). This is acknowledged by the Explanatory Statement. There is no reference to HRA section 28 as a basis for these derogations, nor any attempt in substance to make out a justification according to the framework stated in section 28. 
There is also a question whether paragraph 9(2)(a) would be invalid as a derogation of the right to freedom of political communication found by the High Court to arise by implication from the provisions in the Commonwealth Constitution. For the purposes of this report, the High Court’s doctrine may be taken as a framework for also addressing the question whether paragraph 9(2)(a) is a justifiable derogation of HRA sections 16 and 17.
The central question posed by section 28 is whether the limit to speech is “reasonable” “in a free and democratic society”. The High Court test is not substantially (or perhaps at all) different. 
The significance of free speech
The judgment of Heydon J on Monis v The Queen is a common way of stating judicial attitude on the value of free speech. His Honour said:
[151] The common law right of free speech is a fundamental right or freedom falling within the principle of legality. That must be so if there is any shadow of truth in Cardozo J's claim that freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom." It must be so if Lord Steyn's account of the importance of freedom of expression is convincing. He said: "Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market'. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country". ... 
[152] Of course, Cardozo J was dealing with the First and Fourteenth Amendments to the United States Constitution. ... 
Constitutional rights of those kinds are different from a common law right capable of modification by statute. But the considerations underlying a constitutional right of free speech, where it exists, are equally strong indications that the right of free speech at common law is sufficiently important to attract the principle of legality.  
 The Commonwealth Constitution’s freedom of political communication  
In Monis v The Queen Hayne J said that “where a law has the legal or practical effect of burdening political communication, the boundaries of the freedom are marked by two conditions”. The first is “the object of the impugned law ‘is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ... which the Constitution prescribes’”. This object is often spoken of as the “legitimate end”. The second is that the law is reasonably appropriate and adapted to serving the legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 
The character of this freedom was described by McHugh J in Levy v Victoria: "The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution”.  
The width of the language on paragraph 9(2)(a)  
Whether or not paragraph 9(2)(a) derogates from this freedom will turn on its language and, in particular on the breadth of the conduct it proscribes. Conduct proscribed by paragraph 9(2)(a) will embrace statements made by a public servant in any context and at any time or place that cause damage to the reputation of the service or the Executive. The “service” is the ACT Public Service, and the “Executive” is the Australian Capital Territory Executive, being the Chief Minister and such other Ministers as are appointed by the Chief Minister. See the Australian Capital Territory (Self-Government) Act 1989 sections 36 and 39. 
The only limitation on the communication that is caught by the law is that it has the effect of causing damage to the reputation of the service or the Executive. There is no limitation in terms of whether the information in question was or was not otherwise publicly available, or whether it ought to be or could be made so. Nor is it concerned with whether, in a given instance, any public interest consideration could reasonably justify a prohibition on disclosure. Nor is it necessary to consider (i) whether the information upon which the communication was derived by the official in confidence; or (ii) whether the communication was based on anything learnt by reason of the person being a public servant. 
The potential effect on free speech by a public servant of the rule in paragraph 9(2)(a) should also be understood by reference to other provisions in proposed section 9 concerning misconduct. Clause 104 of the Bill would amend the Dictionary to the Act by prescribing that “misconduct, by a public servant, means failure to comply with section 9”, and this is also reflected in subsection 9(3), which provides that “[f]or a misconduct procedure, failing to act in a way that is consistent with subsection (1) or (2) may be misconduct”. The effect is that a communication by a public servant that is proscribed by paragraph 9(2)(a) may be a basis for a misconduct procedure set out in an industrial instrument or prescribed by regulation. The provision of subsection 9(4) makes it more likely that this will happen. It provides that a public servant (a discloser) must tell the head of service about any misconduct by a public servant or a public sector member of which the discloser becomes aware. 
The result of these provisions may be that public servants will be very wary of making any communication that could be plausibly construed as one that causes damage to the service or to the Executive. This result would directly affect their participation in discussion of matters that relate to the operation of responsible government, and thereby affect the effectiveness of the participation of others. 
(The matters just discussed also bear directly on the question of whether paragraph 9(2)(a) is a justifiable derogation of the right of a public servant to exercise their right under HRA paragraph 17(a) to take part in the conduct of public affairs, directly or through freely chosen representatives.)  
Will a prohibition on a communication effectively burden political communication? 
In Monis v The Queen Hayne J said that “[t]he expression ‘effectively burden’ means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications”. 
It is possible to conceive of conduct by a public servant that would damage reputation in the relevant sense without that conduct being in the nature of a criticism or reflection on the performance of the public service or the Executive. However, in very many cases this will be so and, in particular, in those cases where the communication will be a basis for a misconduct charge. The words of Finn J (in a similar context) in Bennett are appropriate: “[i]ts heartland is concerned with information about political and governmental matters and about the executive organs of the Territory for which ministers are in some measure responsible in our system of government”. 
It is important to take note of the significance of criticism or reflection by a public servant on the performance of the public service or the Executive. Public servants are better placed than others to appreciate that there is room for criticism, and there is a public interest in their views being known to the citizenry. As Finn J said in Bennett v President, Human Rights and Equal Opportunities Commission, “[w]ere it otherwise one could institutionalise a form of public debate about matters of government and public administration that has been described as a ‘dialogue of the deaf’ between those who do not know and those who will not or cannot tell: cf Kernaghan and Langford, The Responsible Public Servant, 89 (1990)”. 
 The point is that in this context the position of public servants cannot be equated with that of other employees. This point may be underlined by reference to observations of McHugh J in Stephens v West Australian Newspapers Ltd:  
In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.
It is arguable that paragraph 9(2)(a) effectively burdens political communication in an extensive way. The words of Finn J in Bennett are again appropriate: “It is an impediment to the community being informed as to whether "the democratic machinery is in good working order’: Zines, The High Court and the Constitution, 380 (4th ed, 1997)”. This conclusion affects the question of validity, for the High Court accepts that “[i]t is trite to say that the more extensive the burden on political communication the more difficult it will be to justify the impugned law”.  
Is the object of the impugned law compatible with the maintenance of the system of representative and responsible government?  
The Explanatory Statement (at page 7) specifies the object of paragraph 9(2)(a) to be “[t]he need to retain public confidence in the public service”. It is assumed that this condition for compatibility of paragraph 9(2)(a) with the constitutional freedom is satisfied.  
Are the means chosen to achieve that end reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government?  
It might be argued that the reach of paragraph 9(2)(a) goes much further than is necessary to achieve the end of retaining public confidence in the public service and of the Executive. 
The question is whether the end sought to be achieved by paragraph 9(2)(a) is achievable only by a prohibition of every communication by a public servant that causes damage to reputation in the relevant ways. It might be argued that public confidence is better maintained by the exposure by public servants (in contexts apart from acting as such) of matters that would in the short-term cause damage. Such exposure might ensure that the matters that cause damage are rectified, thereby enhancing public confidence. Moreover, if the law prescribes that the operations of the public service and of the Executive cannot be criticised by those who are well-placed to make that criticism, public confidence in these institutions might be eroded. 
Using the language of subsection 28(2)(e), there may be less restrictive means to achieve the object desired. The prohibition in paragraph 9(2)(a) ends might be formulated less restrictively. Particular ends, such as the protection of privacy, or of Cabinet secrecy, or security concerns, would be easier to justify. Rather then simply damage to ‘reputation’, the question is whether the damage might be framed more specifically, such as in terms of the efficiency or functioning of the service and the Executive. 
There is an argument that the relevant communication must be shown to be contrary to the public interest. In Commonwealth v John Fairfax and Sons Ltd, Mason CJ said, with reference to the common law doctrine that affords a remedy for a breach of confidence:  
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. 
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.
This comment by Finn J in Bennett v President, Human Rights and Equal Opportunities Commission might be taken to sum up the argument that paragraph 9(2)(a) is invalid as derogating from the Commonwealth Constitution’s freedom of political communication: “The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government.”

Productivity Commission's draft Agriculture Regulation report

The Productivity Commission has released its draft report on Regulation of the Agriculture Sector, commissioned in November last year as the Government headed towards the general election.

The Commission was directed as follows
The Australian Government has identified the agriculture sector as one of the five pillars of the economy. It is promoting the economic potential of the sector by removing unnecessary regulatory burdens and promoting improved productivity and global competitiveness. The Australian Government’s deregulation agenda has focussed on reducing Commonwealth red tape. As part of its deregulation agenda, the Government is implementing reforms in agricultural and veterinary chemicals, biosecurity and export certification. However, there is an opportunity for better national outcomes for the agriculture sector by considering regulation at all levels of government. This is particularly applicable in the areas of transport, environmental protection, native vegetation management, land tenure, animal welfare and food safety in which the states and territories have significant responsibility. 
While regulation targets valid objectives, such as protecting consumers from unsafe food, protecting the environment or supporting the export of goods, poorly implemented and administered regulation and the cumulative impact of regulation can have adverse effects on farm businesses. It can unnecessarily restrict farm management decisions and reduce investment. 
Inconsistent and overlapping regulations between jurisdictions can also create adverse effects and raise costs for faun businesses. 
Scope of the inquiry 
The inquiry will focus on regulation with a material impact on domestic and international competitiveness of farm businesses and the productivity of Australian agriculture. 
The inquiry will define priority areas for removing or reducing unnecessary regulatory burdens where doing so will/can contribute to improved productivity for farm businesses as well as the wider economy. 
The inquiry will also review regulation of farm businesses to identify unnecessary restrictions on competition. 
While focussed on the impact of regulation on farm businesses, the inquiry should also consider the material impact arising from regulation imposed along the supply chain such as regulations introduced to meet the requirements of international markets. 
Consistent with its legislative remit, the Commission is to have particular regard to:
• areas of regulation that directly affect farm businesses, including those identified as areas of concern through the white papers on agricultural competitiveness and northern Australia. This includes regulatory arrangements affecting access to new technologies, investment opportunities, land tenure, relevant environmental protection and native vegetation laws, animal welfare and the Exporter Supply Chain Assurance System 
• areas where there is greatest scope to reduce unnecessary regulatory burden and pursue regulatory objectives in more efficient (least cost) ways 
• whether the current level at which matters are regulated (national, State and local) is appropriate and whether there is scope for better coordinated action across governments to reduce unnecessary overlap 
• whether Australia’s farm export competitiveness can be improved by minimising duplication between domestic regulation and importing country requirements 
• relevant regulatory approaches adopted in other countries.
Specific requirements
In undertaking the inquiry, the Commission should:
• identify specific areas of regulation that are unnecessarily burdensome, complex or redundant 
• identify priority areas for regulatory reform 
• provide recommendations to alleviate regulatory burden identified. 
For the purposes of this inquiry, the regulatory issues affecting: 
• marine fisheries and aquaculture industries will be investigated as part of a separate Productivity Commission inquiry into the Regulation of Australian Marine Fisheries and Aquaculture Sectors.
The draft report comments
• Farm businesses are subject to a vast and complex array of regulations. Regulations are in place at every stage of the supply chain — from land acquisition to marketing — and are applied by all levels of government. The number and complexity of regulations affecting farm businesses means that the cumulative burden of regulation on farmers is substantial. 
• The need for regulation is not disputed by farm businesses. In fact, some regulations, such as biosecurity and food safety regulations, were highlighted as providing clear benefits to Australian farmers. Rather, Australian farmers want ‘better’ (or less burdensome) regulation. 
• Some regulations lack a sound policy justification and should be removed. Examples include restrictions on the use of land held under pastoral lease arrangements, state bans on cultivating genetically modified crops, recent changes to tighten foreign investment review requirements for the agricultural sector, barriers to entry for foreign shipping providers, mandatory labelling of genetically modified foods, and statutory marketing legislation relating to rice in New South Wales and sugar in Queensland. 
• Other regulations and regulatory systems need to be reformed so they can more fully achieve their objectives.
− Native vegetation and biodiversity conservation regulations need fundamental change so that risks and impacts are considered at a relevant landscape wide scale. Environmental regulatory decisions also need to take into account economic and social factors. 
− Animal welfare regulations seek to achieve welfare outcomes that (among other things) meet community expectations. However, little is known about these expectations. 
− The process for setting standards for farm animal welfare would be improved by applying scientific principles and evidence through the creation of a national, independent body responsible for building the evidence base on community expectations, as well as for developing national farm animal welfare standards. 
− The standard for the level of gluten allowed in foods labelled as ‘gluten free’ needs review. 
− International evidence could be put to greater use in assessing agricultural and veterinary (agvet) chemicals, reducing the time and cost taken to grant registration. 
• Inconsistent regulatory requirements across jurisdictions make it difficult for farmers to understand their obligations and add to the cost of doing business. A more consistent approach would improve outcomes in the areas of heavy vehicle regulation and road access, and the use of agvet chemicals. 
• Governments could also reduce the regulatory burden on farm businesses by 
− improving their consultation and engagement practices. There is scope to better support landholders to understand environmental regulations, and to reduce duplicative and unnecessary information gathering regarding water management by farm businesses 
− doing more to coordinate their actions, both between agencies and between governments 
− ensuring that good regulatory impact assessment processes are used as an analytical tool to support quality regulation making, not as a legitimising tool or compliance exercise.
The Commission offers the following findings and recommendations
Land use regulation 
Draft Recommendation 2.1 Land management objectives should be implemented directly through land use regulation, rather than through pastoral lease conditions. State and territory governments should pursue reforms that enable the removal of restrictions on land use from pastoral leases. 
Draft Finding 2.1 Pastoral leases offer less security of tenure than freehold land, creating uncertainty for leaseholders and investors. In general, converting pastoral leases to freehold facilitates efficient land use. 
Draft Recommendation 2.2 State and territory governments should: • ensure that, where reforms to Crown lands confer additional property rights on a landholder, the landholder pays for the higher value of the land and any costs associated with the change (including administrative costs and loss of value to other parties) • set rent payments for existing agricultural leases to reflect the market value of those leases, with appropriate transitional arrangements. 
Information Request 2.1 What are the advantages and disadvantages of ‘right to farm’ legislation? Are there any other measures that could improve the resolution of conflicts between agricultural and residential land uses? 
Draft Finding 2.2 Regulation and policies aimed at preserving agricultural land per se can prevent land from being put to its highest value use. A right of veto by agricultural landholders over resource development would arbitrarily transfer property rights from the community as a whole to individual landholders. 
Environmental regulations 
Draft Recommendation  3.1 The Australian, state and territory governments, in consultation with natural resource management organisations, should ensure that native vegetation and biodiversity conservation regulations: • are risk based (so that landholders’ obligations are proportionate to the impacts of their proposed actions) • rely on assessments at the landscape scale, not just at the individual property scale • consistently consider and balance economic, social and environmental factors. 
Draft Recommendation 3.2 The Australian, state and territory governments should continue to develop market based approaches to native vegetation and biodiversity conservation. Where the community is seeking particular environmental outcomes, governments could achieve them by buying environmental services (such as native vegetation retention and management) from existing landholders. 
Draft Recommendation  3.3 The Australian, state and territory governments should review the way they engage with landholders about environmental regulations, and make necessary changes so that landholders are supported to understand the environmental regulations that affect them, and the actions required under those regulations. This would be facilitated by: • recognising and recruiting the efforts and expertise of landholders and community based natural resource management organisations • building the capability of, and landholders’ trust in, environmental regulators. 
On-farm regulation of water 
Draft Finding  4.1 Complexity and ongoing changes in water regulation contribute to the cumulative burden of regulation on farm businesses. However, the diversity of Australia’s river catchments makes streamlining and harmonising regulation difficult. More flexible governance arrangements may be needed to develop locally appropriate regulatory settings for accessing water. 
Draft Recommendation  4.1 The Australian Government should implement the findings of the Interagency Working Group on Commonwealth Water Information Provision to reduce duplicative and unnecessary water management information requirements imposed on farm businesses. 
Regulation of farm animal welfare 
Draft Recommendation  5.1 The Australian Government should take responsibility for ensuring that scientific principles guide the development of farm animal welfare standards. To do this, an independent body tasked with developing national standards and guidelines for farm animal welfare should be established. The body should be responsible for determining if new standards are required and, if so, for managing the regulatory impact assessment process for the proposed standards. It should include an animal science and community ethics advisory committee to provide independent evidence on animal welfare science and research on community values. 
Information Request5.1 The Commission is seeking feedback on: • the most effective governance structure for an independent body tasked with assessing and developing standards and guidelines for farm animal welfare • what the body’s responsibilities should include (and whether it should make decisions or recommendations and if the latter, to whom) • what processes the body should use to inform and gauge community values on farm animal welfare • how such a body should be funded. 
Draft Recommendation  5.2 State and territory governments should review their monitoring and enforcement functions for farm animal welfare and make necessary changes so that: • there is separation between agriculture policy matters and farm animal welfare monitoring and enforcement functions • a transparent process is in place for publicly reporting on monitoring and enforcement activities • adequate resourcing is available to support an effective discharge of monitoring and enforcement activities. State and territory governments should also consider recognising industry quality assurance schemes as a means of achieving compliance with farm animal welfare standards where the scheme seeks to ensure compliance (at a minimum) with standards in law, and involves independent and transparent auditing arrangements. 
Access to technologies and agricultural and veterinary chemicals 
Draft Finding  6.1 There is no economic or health and safety justification for banning the cultivation of genetically modified (GM) organisms. • The Office of the Gene Technology Regulator (OGTR) and Food Standards Australia New Zealand (FSANZ) assess GM organisms and foods for their effect on health, safety and the environment. Scientific evidence indicates that GM organisms and foods approved by the OGTR and FSANZ are no less safe than their non-GM counterparts. • The successful coexistence of GM and non-GM crops is possible and has been demonstrated both in Australia and overseas. This means that if there are any market access or trade benefits (including price premiums for non-GM products), they would be achieved regardless of whether GM crops are in the market. 
Draft Recommendation 6.1 The New South Wales, South Australian, Western Australian, Tasmanian and Australian Capital Territory governments should remove their moratoria (prohibitions) on genetically modified crops. All state and territory governments should also repeal the legislation that imposes or gives them powers to impose moratoria on the cultivation of genetically modified organisms by 2018. The removal of the moratoria and repeal of the relevant legislation should be accompanied by the provision of accurate information about the risks and benefits to the Australian community from genetic modification technologies. State and territory governments, the Office of the Gene Technology Regulator and Food Standards Australia New Zealand should actively coordinate the provision of this information. 
Draft Recommendation 6.2 The Australian Pesticides and Veterinary Medicines Authority should make greater use of international evidence in its assessments of agricultural and veterinary chemicals (including by placing greater reliance on assessments made by trusted comparable international regulators). Reforms currently underway in this area should be expedited. 
Draft Recommendation 6.3 The Australian, state and territory governments should expedite the implementation of a national control-of-use regime for agricultural and veterinary chemicals (which includes increased harmonisation of off-label use provisions), with the aim of having the regime in place in all states and territories by the end of 2018. 
Information Request 6.1 How well does the regulatory framework for technologies and agvet chemicals perform? Are the institutional arrangements and regulatory objectives underpinning the OGTR and APVMA appropriate and up to date? What improvements could be made? 
Biosecurity 
Information Request 7.1 Participants raised concerns about farm trespass, particularly as trespass can increase biosecurity risks. What strategies could be used to discourage farm trespass? Are existing laws for trespass sufficiently enforced in relation to farm trespass? 
Transport 
Draft Finding  8.1 Despite the commencement of the Heavy Vehicle National Law and the establishment of the National Heavy Vehicle Regulator, there remain significant variations and inefficiencies in heavy vehicle regulation, including delays in processing road access permits. 
Draft Recommendation 8.1 States and territories that are participating in the Heavy Vehicle National Law should increase the number of routes that are gazetted for heavy vehicle access. Permits should only be required in locations where there are significant risks to public safety or infrastructure that must be managed on a case by case basis. There are arrangements in South Australia to allow road users to propose and undertake road route assessments for gazettal, and in Queensland to fund road assessments and gazettals on both state and local roads. These arrangements should be considered for adoption in other jurisdictions or expansion in respective states. 
Draft Recommendation 8.2 The Australian, state and territory governments should pursue road reforms to improve the efficiency of road infrastructure investment and use, particularly through the introduction of road-user charging for selected roads, the creation of Road Funds, and the hypothecation of revenues in a way that incentivises the efficient supply of roads. 
Draft Recommendation 8.3 The National Heavy Vehicle Regulator, road managers, and relevant third parties (such as utilities and railway companies) should ensure that requirements for moving oversized agricultural machinery are proportionate to the risks involved. To achieve this they should, wherever possible, make greater use of gazettal notices or other exemptions for oversized agricultural machinery, and issue permits for oversized agricultural machinery that are valid for longer periods and/or for multiple journeys. 
Draft Finding  8.2 The road safety remuneration system (including the Road Safety Remuneration Tribunal) imposed costs on businesses, including farm businesses, without commensurate safety benefits and its abolition will reduce this burden. 
Draft Recommendation 8.4 The Australian, state and territory governments should review the National Heavy Vehicle Regulator (NHVR) as part of the planned review of the national transport regulation reforms. The review should fully assess concerns over inefficiencies in heavy vehicle regulations, and identify ways in which new funds allocated following the abolition of the Road Safety Remuneration Tribunal could best be used by the NHVR to improve road safety in all states and territories. 
Draft Finding 8.3 Privatisation of major ports has the potential to increase economic efficiency, provided appropriate processes are followed to ensure that the public interest is protected through structural separation, regulation or sale conditions. Increasing the sale price of ports by conferring monopoly rights on buyers is not in the public interest. 
Draft Recommendation 8.5 The Australian Government should amend coastal shipping laws by 2018 to substantially reduce barriers to entry for foreign vessels, in order to improve competition in coastal shipping services.  
Draft Recommendation  8.6 Arrangements to support the biofuel industry — including excise arrangements and ethanol mandates — deliver negligible environmental benefits and impose unnecessary costs on farmers and the community. The Australian, New South Wales and Queensland Governments should remove these arrangements by the end of 2018. 
Food regulation 
Information Request 9.1 The Commission is seeking information on whether the new country-of-origin labelling system would deliver higher net benefits to the community as a voluntary system rather than as a mandatory system. 
Draft Recommendation 9.1 Food Standards Australia New Zealand should remove the requirement in the Food Standards Code to label genetically modified foods. 
Draft Recommendation 9.2 Food Standards Australia New Zealand should review the standard for the level of gluten allowed in foods labelled as ‘gluten-free’, taking into account scientific evidence, international standards and risks to human health, and set a maximum allowable parts per million level for foods to be labelled ‘gluten-free’. 
Information Request 9.2 The Commission is seeking information on the costs and benefits of egg stamping relative to alternative traceability systems for eggs (such as labelling on egg cartons and requiring food businesses to keep records). Are there examples where the source of an outbreak of salmonellosis caused by eggs could not have been traced in the absence of egg stamping? 
Information Request 9.3 The Commission is seeking information on whether there are opportunities to further reduce the burden of regulatory food safety audits while still achieving regulatory objectives, and if so, where these opportunities lie. 
Competition regulation 
Draft Recommendation 11.1 The New South Wales Government should repeal the Rice Marketing Act 1983. 
Draft Finding 11.1 Statutory marketing of potatoes in Western Australia has reduced consumer choice and increased the price of potatoes in Western Australia. The Western Australian Government’s plan to deregulate the industry will allow potato production in that state to respond to changing consumer preferences and reduce the cost of potatoes for consumers. 
Draft Recommendation 11.2 The Queensland Government should repeal the amendments made by the Sugar Industry (Real Choice in Marketing) Amendment Act 2015. 
Draft Finding 11.2 Existing competition regulation and oversight is adequate for managing the risk of supermarkets abusing market power in their dealings with farm businesses and wholesale merchants. Suggestions to amend exemptions that allow collective bargaining under section 45 of the Competition and Consumer Act 2010 (Cwlth) are unlikely to increase collective bargaining by farm businesses. 
Foreign investment in agriculture 
Draft Recommendation 12.1 The Australian Government should increase the screening thresholds for examination of foreign investments in agricultural land and agribusinesses by the Foreign Investment Review Board to $252 million (indexed annually and not cumulative). 
Draft Recommendation 12.2 The Australian Government should set application fees for foreign investment proposals at the level that recovers the costs incurred by the Foreign Investment Review Board in reviewing proposals, and should closely monitor the fees to ensure no over- or under recovery of costs. 
The way forward 
Information Request 14.1 The Commission is seeking feedback on possible strategies and governance arrangements for improving the incentives for policy makers to use regulatory impact assessment processes as an analytical tool to support the quality of regulation making, rather than as a legitimising tool or compliance exercise.

Discrimination

'From Social Problems to Privacy Issues: A Symptomatic Reading of the Discourse on Genetic Discrimination' (Institut for Sozialforschung Working Paper, 2016) by Thomas Lemke comments
The term genetic discrimination has been coined to refer to a (negative) differential treatment of individuals on the basis of what is known or assumed about his or her genetic makeup. This paper critically engages with the current understanding of genetic discrimination. It shows that the distinction made between people who are symptomati- cally and asymptomatically ill as an essential element of the genetic discrimination discourse. Taking up Louis Althusser’s interpretative method of »symptomatic reading« (Althusser and Balibar 1997), I seek to reconstruct and make explicit what is absent, omitted and repressed by the way the problem of genetic discrimination is framed and addressed. The argument is structured as follows. I will first present a short genealogy of the problem, outline the concept of genetic discrimination and how it has become a research topic over the past twenty-five years. Second, the paper sketches the regulatory and legal responses to the phenomenon, focusing on Germany as an example. I will then discuss some characteristics of the debate on genetic discrimination, in order to show how it fails to address important areas of concern in consequence of its current focus and framing. The last section advances the thesis that it is necessary to reconsider and renegotiate the scope and the meaning of genetic discrimination in the light of new technological challenges, recent commercial dynamics and a revised understanding of genetic information following the Human Genome Project. 
Leek argues
Over the past twenty-five years, a series of empirical studies in different countries have shown that our increasing genetic knowledge leads to new forms of exclusion, disad- vantaging and stigmatisation. The term genetic discrimination has been coined to refer to a (negative) differential treatment of individuals on the basis of what is known or assumed about his or her genetic makeup. Reported incidents include disadvantages at work, problems with insurance policies and difficulties with adoption agencies. 
Today, many countries around the world have introduced laws designed to prevent discrimination against individuals due to their genetic properties. These legislation projects seek to guarantee the right to ›genetic privacy‹ and protect personal data against misuse. The notion of genetic discrimination, which was largely unknown only a few years ago, has now become a key term informing not only scientific work but also the regulatory and legal responses to what is conceived as a »new form of social prejudice« (Rifkin 2000). 
This paper critically engages with the current understanding of genetic discrimination. I argue that the debate on genetic discrimination suffers from a juridical framing that focuses on institutional actors and privacy issues at the expense of a more complex and convincing approach. I will concentrate on the opposition of the symptomatic and asymptomatic ill as one essential element in the genetic discrimination discourse. Drawing on Louis Althusser’s interpretative method of »symptomatic reading« (Althusser and Balibar 1997), I seek to reconstruct and make explicit what is absent, omitted and repressed by the way the problem of genetic discrimination is framed and addressed. 
The argument is structured as follows. Firstly, I will present a short genealogy of the problem and set out what genetic discrimination is and how it became a research topic over the past twenty-five years. Secondly, I will sketch the regulatory and legal responses to the phenomenon, taking Germany as an example. I will then discuss some characteristics of the debate on genetic discrimination, in order to show how the current focus and framing of this discourse makes it difficult to address important areas of concern. The last part of the paper advances the thesis that we have to reconsider and renegotiate the scope and the meaning of genetic discrimination in the light of new technological challenges, recent commercial dynamics and a revised understanding of genetic information following the Human Genome Project.

FOI

The OAIC has released the following statement
From 1 July 2016, the Australian Information Commissioner will resume the investigation of complaints about agency actions relating to the handling of FOI matters. 
These arrangements relate to new complaints lodged with the OAIC from 1 July 2016. The Australian Information Commissioner can decide not to investigate a matter as a complaint if the alternative of Information Commissioner review is available. Complaints that are currently being handled by the Commonwealth Ombudsman will remain with the Ombudsman and will not be transferred to the OAIC. 
We ask that agencies update their correspondence and website to reflect these arrangements.
A summary of recent IC decisions  is provided on the OAIC site.

Governance

'Executive Oversight of Intelligence Agencies in Australia' by Kieran Hardy and George Williams in ZK Goldman and SJ Rascoff (eds), Global Intelligence Oversight: Governing Security in the Twenty‐First Century (2016) comments
When it comes to government accountability, intelligence agencies present a special case. Ordinarily, government departments are subject to robust scrutiny from a variety of sources. The classification of national security information and exemptions from freedom of information (FOI) legislation mean that media and public scrutiny of intelligence agencies can be superficial at best. The fact that public, judicial, and parliamentary scrutiny of Australia’s intelligence agencies is severely constrained means that the executive branch takes on a particularly important role in holding these agencies to account. The key conceptual and practical problem with executive oversight of intelligence agencies is that the relevant accountability mechanisms — including statutory officeholders, royal commissions, and administrative tribunals — are part of the same arm of government to which the intelligence agencies belong. Executive oversight mechanisms therefore play an important but also potentially problematic role in keeping intelligence agencies accountable. 
Given this, the aim of this chapter is to assess whether executive oversight of the Australian intelligence agencies is robust, stringent, and effective. It considers whether there are any gaps or vulnerabilities in this system of executive accountability, and whether stronger powers or other improvements are needed to further counterbalance the limited public, judicial, and parliamentary scrutiny of intelligence agencies.