20 August 2011

Images of copyright

Rebecca Tushnet in 'Worth a Thousand Words: The Images of Copyright Law' (forthcoming in Harvard Law Review) comments that -
Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on non-textual creative works such as images - they are either transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming that the meaning of an image is so obvious as to admit of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being able to be discussed and analyzed using words that there is no point in trying. This oscillation between opacity and transparency has been the source of much bad law.

This article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The article then turns to persistent difficulties assessing copyrightability and infringement for visual works. In assessing copyrightability, courts draw lines between artistic choice and mere reproduction of reality, but also treat the artist as a person with a special connection to reality, a way of seeing that ordinary mortals lack. Infringement analysis repeats this doubling, using the representation/reality divide to separate protected elements of a specific work from unprotected ones while simultaneously insisting that works are indivisible gestalts. Current doctrine makes impossible, self-contradictory demands on fact-finders. It should be replaced with a true “reproduction” right against exact or near-exact copying.

Despite this radical proposal, much of my argument is critical and diagnostic. I therefore turn to more specific problems in authorship questions for multimedia works and fair use that highlight the instabilities in current approaches to non-textual works. Greater epistemic humility, recognizing that images make multiple meanings in multiple ways, could combat the judicial tendency to presume that images are nothing more than what they seem.
Tushnet notes that -
Larry Lessig has eloquently written about how freedom to quote is the foundation of textual fair use; quotation is the foundation of scholarship, news reporting, and many other important endeavors. While courts have begun to recognize that copying an entire picture may be necessary to critique or analyze it, freedom to quote has historically been far less likely to be recognized for music or video, creating a significant gap between good educational and scholarly practice and the law. Literary analysis often proceeds quite well with quotations, but art history and criticism routinely require whole pictures, not fragments, to make their points. As Lessig points out, it is bizarre that freedom to quote a Hemingway novel is the baseline, but not freedom to quote the filmed version.

Standard fair use analysis, with its prototype of the text, favors partial and limited quotations. The amount of the work used is even an enumerated factor in the statutory definition of fair use In order to protect critical, news-reporting, and similarly fair uses of images. Yet with images, paraphrase is often insufficient to achieve a legitimate objective. In a case from the 1960s, Bernard Geis, the fear of liability led a commentator analyzing the Kennedy assassination to redraw frames of the Zapruder film rather than reproducing them mechanically—and he still got sued, because he‘d reproduced the features of the film that made it valuable. Mechanical reproduction would have been better because it would have been more persuasive.

Later copiers recognized this need for accurate reproduction in their fair uses. The influential Second Circuit has started to accept the need for the special veridical power of images, both in works of fiction and nonfiction, as has the Ninth Circuit. A district court, attempting to show those aspects of Superman that had been established as of Action Comics #1 (which was important because one creator‘s heirs had been able to recapture the copyright in that issue, but not in aspects of the Superman character subsequently developed), even reproduced the entire issue of the comic book as an appendix to its opinion, apparently confident that this was legitimate because it was the best way to show what aspects of Superman the respective parties owned.


'Participating in Political and Public Life: A Challenge for We Persons with Sensory Disabilities' by Ronald McCallum in 36(2) Alternative Law Journal (2011) 80 examines the right of persons with sensory disabilities (ie who are blind or deaf) to vote and to serve on juries in Australia. The article argues that the right is enshrined in article 29 of the United Nations Convention on the Rights of Persons with Disabilities.

After noting use of electronic voting in Australia, with particular reference to the new I-Vote system in New South Wales, McCallum discusses jury service. The article comments that -
Article 29 of the CRPD does not mention jury service, possibly because in many countries juries are unknown. However, paragraph B of Article 29 says in part that countries must:
Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs.
In Australia, the practice in all jurisdictions appears to be that blind and deaf persons are automatically excluded from jury service. In New South Wales, for example, section 14 of the Jury Act 1977 requires the Sheriff to delete from the supplementary jury roll persons who the Sheriff determines are ineligible to serve. Item 12 of schedule 2 of the Act provides that the following classes of persons are ineligible for jury service: "A person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror." Pursuant to this item, the practice is to automatically exclude blind and deaf persons from jury service.
McCallum notes that the 2006 report of the NSW Law Reform Commission recommended
that we should be enabled to sit, provided that trial judges are given a discretion to exclude persons in appropriate situations. Furthermore, it was recommended that interpreters and stenographers who assist blind or deaf jurors, after swearing an appropriate oath, could go into the jury room to render further assistance. In relation to the judicial discretion to dismiss a juror, it would be confined to situations where even with reasonable accommodation the person cannot perform the functions of a juror in the circumstances of the trial. For example, in my view it would be appropriate to exclude a blind person from a jury in a murder trial where the primary evidence related specifically to eyesight identification of the accused.
Regrettably McCallum does not provide a substantive examination of principles and practicalities beyond reference to the Law Reform Commission's recommendations.

18 August 2011

Cybercrime Convention

The Joint Select Committee on Cyber-Safety has tabled its 111 page report on the Review of the Cybercrime Legislation Amendment Bill 2011, including endorsement of recommendations made by myself and LLB Hons student Skye Masters in a joint submission earlier this year.

The recommendations are -
Mutual Assistance - Stored Communications and Disclosure of Prospective Data to Foreign Countries

R1 - the thresholds that apply to the issuing of a stored communication warrant under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Telecommunications (Interception & Access) Act 1979 (Cth) for an investigation or investigative proceeding for a serious foreign offence should be the same thresholds as apply for domestic Australian investigations.

R2 - the Attorney-General investigate whether the proposed new Part IIIA of the Mutual Assistance in Criminal Matters Act 1987 (Cth) may prevent stored communications warrants being available to foreign countries for investigations into child sexual exploitation.

R3 - subsection 8(2) of the Mutual Assistance in Criminal Matters Act 1987 (Cth) be amended to include an additional discretionary ground to decline a request where the requesting country’s arrangements for handling personal information do not offer privacy protection substantially similar to those applying in Australia.

R4 - the proposed section 180F of the Telecommunications (Interception and Access) Act 1979 (Cth) be amended to elaborate more precisely the requirement that the authorising officer consider and weigh the proportionality of the intrusion into privacy against the value of the potential evidence and needs of the investigation.

Police Assistance to Foreign Countries – Historic and Existing Telecommunications Data

R5 - the proposed sections 180A(5) and 180C(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) be amended to ensure that, in determining whether a disclosure of telecommunications data to a foreign country is appropriate in all the circumstances, the authorising officer must give consideration to the mandatory and discretionary grounds for refusing a mutual assistance request under existing s 8 of the Mutual Assistance in Criminal Matters Act 1987 (Cth).

R6 - the disclosure of telecommunications data to a foreign country in the context of police-to-police assistance at the investigative stage and in relation to criminal conduct that, if prosecuted, may attract the death penalty, must:
a) only take place in exceptional circumstances and with the consent of the Attorney-General and the Minister for Home Affairs & Justice; and
b) each Minister must ensure that such consent is recorded in a register for that purpose.
R7 - the Cybercrime Legislation Amendment Bill 2011 (Cth) be amended to elaborate the conditions of disclosure of historical and existing telecommunications data to foreign countries, including in relation to retention and destruction of the information and an express prohibition on any secondary use by the foreign country.

R8 - the Attorney-General investigate the desirability and practicality of a legislative requirement for data subjects to be advised that their communications have been subject to an intercept, stored communications warrant, or telecommunications data disclosure under the Telecommunications (Interception and Access) Act 1979 (Cth) once that advice could be given without prejudice to an investigation.

Reporting and Oversight

R9 - the proposed new paragraph 186(1) (ca) of the Telecommunications (Interception and Access) Act 1979 (Cth) be amended to require that the Australian Federal Police report to the Minister
• the number of authorisations for disclosure of telecommunications data to a foreign country;
• identify the specific foreign countries that have received data;
• the number of disclosures made to each of the identified countries; and
• any evidence that disclosed data has been passed on to a third part or parties.
Industry Data Handling & Privacy Obligations

R10 - the Attorney-General consult initially with the telecommunications industry and then with relevant Ministers, statutory bodies, and public interest groups to clarify and agree on the data handling and protection obligations of carriers and carriage service providers.

R11 - the Cybercrime Legislation Amendment Bill 2011 (Cth) be amended to require carriers and carriage service providers to destroy preserved and stored communications and telecommunications data or a record of that information when that information or record is no longer required for a purpose under the Telecommunications (Interception and Access) Act 1979 (Cth) unless it is required for another legitimate business purpose.

R12 - the exemption of small Internet Service Providers from the Privacy Act 1988 (Cth) as small businesses be reviewed by the Attorney-General with a view to removing the exemption.

Industry Implementation Issues

R13 - the Attorney-General’s Department consult widely with carriers and carriage service providers to ensure that the Cybercrime Legislation Amendment Bill 2011 (Cth), when enacted, can be implemented in a timely and efficient manner.

Grime and Punishment

Three crim law cases for breakfast.

In Scheving v Police [2011] SASC 128 the Supreme Court of South Australia has overturned a conviction for indecent assault allegedly committed against the female proprietor of a 'beauty therapy' service. The Court found that the SA Magistrates Court had failed to have due regard to the diminished credibility of the service's proprietor when it upheld allegations that the accused had inappropriately touched her. The Supreme Court further determined that a retrial was unnecessary in the particular circumstances.

The Court states that -
The appellant, Mr Egil Scheving, now aged 44, was born in Iceland on 31 May 1967. Arriving in Australia in 1998, he has worked here ever since and has never previously been convicted of a criminal offence in Australia or elsewhere.

The appellant is a person conscious of his appearance and has had a practice of having excessive hair removed from various parts of the body about three times a year. In cross-examination he was asked why he did that and replied:
It’s something that I’ve come use[d] to from where I come in Iceland. I guess we’re quite fashion kind of orientated people over there being a minority group similar maybe to the Japanese so this is quite a common treatment and it’s increasing commonly here as part of what people refer to as metro-sexual culture.
In January 2010, he happened to notice an advertisement for hair removal services by a business named Cheeky Skin on a general advertising internet site Gum Tree Internet and telephoned to make an appointment. As at the relevant time, Cheeky Skin offered a range of services including various types of massages, various types of skin treatments and a range of waxing services which all had set prices except for “Brasilian Waxing” as to which price was “POA”. He attended at the business premises at the appointed time and met the sole proprietor, Ms O. Treatment started uneventfully but precisely what then occurred is disputed.
The report continues -
The appellant in no way avoided police about this matter and had left his correct name and contact details in a client form he had filled out on arrival. He was not approached by police for about three months, until shortly before his lengthy interview with police on 1 May 2010. He then voluntarily attended by appointment, without a lawyer, and answered all questions (although some of them would have been objected to by a lawyer) in a polite and restrained fashion. He was emphatic and unequivocal in his version of the facts. His reaction to the charges may be summarised in his own words in the interview when he said that he was “surprised about this allegation, very dumbfounded actually”.
Just the thing for first year undergrad law students - metrosexual Icelanders, Brazilians, Cheeky Skin, disputes about evidence ...

Mr Scheving was self-represented in his appeal and among other things relied on a dictionary.

The Court stated that
The appellant is unrepresented in this Court. He fully co-operated with the police and gave evidence at trial consistent with his lengthy police interview. His case was, in my view, inadequately presented at trial and the Magistrate was deprived of the advantage of certain further evidence I have received on appeal. The Magistrate convicted the appellant but did so after acquitting him of another charge which depended on the credibility and reliability of the same complainant. The appellant is a man with no previous convictions who had, prior to this conviction, held a responsible position with a very worthy organisation whose members deeply regret the loss of his services. In such a case, it is well to closely bear in mind the words of King CJ (with whom Duggan and Zelling JJ agreed) in Laurie v Nixon:
When such momentous consequences may result from a conviction based upon findings of fact by a magistrate sitting alone, the need for a critical and thoroughgoing scrutiny by the appellate court should need no emphasis. It involves no disrespect to the competence of the magistrates to recognise the existence of the risk of mistake by an individual magistrate as to matters of fact including the assessment of the credibility of witnesses.
The Court held that -
the learned Magistrate:
• failed adequately to appreciate the extent of the diminution in the credibility and reliability of Ms O which was a necessary consequence of his decision not to accept her evidence as to masturbation;
• failed adequately to scrutinise the evidence of Ms O generally;
• failed adequately to appreciate the strengths of the defence case;
• erred in his approach to the complaint evidence as a matter of law; and
• would likely have come to different factual conclusions in favour of the appellant had he been made aware of the further evidence I have received on appeal.
The cumulative effect of all of these matters is clearly that the conviction must be set aside.
In R v RPJ [2011] VSC 363 the Victorian Supreme Court sentenced a 17 year-old offender guilty of manslaughter and recklessly causing serious injury to six years' imprisonment (with a four year non-parole period).

RPJ pleaded guilty to one charge of recklessly causing injury (for which the maximum term of imprisonment is five years) and one charge of manslaughter (maximum term 20 years).

The injury charge related to an "entirely unprovoked and gratuitous" assault in October 2010, when RPJ attended a Halloween party.
You observed Zane McMillan walk into the loungeroom of the house and stated, “I want to hit that kid with the red hair”. No confrontation occurred and the comment was ignored by Mr McMillan. Later in the evening, there was a scuffle. Whilst there is a dispute as to your precise involvement in the scuffle, it is not necessary to resolve this dispute. Following the scuffle, everyone was requested to leave. You then left the premises and sat outside, yelling at people as they walked past.

Subsequently, you and Travis Gurshall came across Mr McMillan and his friend, Todd Parker. Mr Gurshall and Mr Parker began a conversation, while you stood nearby with Mr McMillan. You stepped towards Mr McMillan and forcefully punched him on the left side of his face with a closed fist, knocking him unconscious and causing him to fall immediately to the ground. You then walked off with Mr Gurshall. When questioned as to your motive for hitting Mr McMillan, you stated, “It was the ranga from the party”.
The Court seems to have been unimpressed with the notion that there's an open season on redheads, although that might be news to some critics of the current Prime Minister.

In relation to the manslaughter charge the Court stated, in an echo of judgments by Lord Denning in 'twas a dark & stormy night' mode, that
On Saturday 6 November 2010, at approximately 11.30pm, Cameron Lowe left his home with the intention of getting something to eat from a Hungry Jack’s restaurant. He was in the company of two siblings and some friends. The group attended a Hungry Jack’s restaurant, before going to the drive-through area of a McDonald’s restaurant, where they were denied service due to not being in a motor vehicle.

At approximately 12.00am, you were part of a large group that exited a party bus. You had been drinking alcohol prior to and during the party bus event. Whilst walking towards the same McDonald's restaurant that Mr Lowe's group had attended, you were in an aggressive and fighting mood. You commented that you wanted to fight. Attempts were made by your group to discourage you.

As the groups approached each other, there was some conversation between them. Precisely what was said is uncertain. However, comment appears to have been made as to the appearance of Mr Lowe’s group, resulting in Mr Lowe sarcastically identifying himself as a drug dealer and telling you not to speak to him. You then advanced towards Mr Lowe. In an unprovoked attack on him, you struck Mr Lowe with a clenched right fist to the left side of his jaw, knocking him unconscious. Mr Lowe fell to the ground lifelessly, his head bouncing on the roadway. You did not render assistance. You left the area immediately, displaying no concern for Mr Lowe. As with the assault you committed the previous week, this attack was entirely without cause and gratuitous.

Mr Lowe eventually regained consciousness through the assistance provided to him by his brother. Ultimately, he was taken home. The next day, he could not be woken. An ambulance was called. Mr Lowe was taken to the Alfred Hospital. He underwent surgery to relieve bleeding on, and swelling of, his brain. On 8 November 2010, Mr Lowe’s life support was ceased because his brain was showing no signs of activity. Mr Lowe passed away soon after.
The Court emphasised the importance of rehabilitation in offences committed by juveniles. However the circumstances of the case led the Court to conclude that factors justifying the existence of a separate youth correctional system were displaced in importance in favour of a more punitive approach.

In CNK v The Queen [2011] VSCA 228 the Court considered an appeal by a child offender who had been tried in the Victorian Supreme Court at age 15 for attempted murder. CNK was acquitted of attempted murder but convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering serious injury. He received a total effective sentence of 3 years’ detention in a youth justice centre.

The application for leave to appeal "raises important questions about the sentencing of children under the Children, Youth and Families Act 2005 (Vic)". The Court concludes in its judgment that -
on the proper construction of the CYF Act general deterrence was excluded from consideration in the sentencing of children. The appeal therefore had to be allowed and the applicant resentenced.
The judgment continues that -
The relevant provision is s 362(1) of the CYF Act, which provides as follows:
(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to —

a) the need to strengthen and preserve the relationship between the child and the child's family; and

b) the desirability of allowing the child to live at home; and

c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

d) the need to minimise the stigma to the child resulting from a court determination; and

e) the suitability of the sentence to the child; and

f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence. Our reasons are as follows.

We start with the opening words of the subsection. Not only is the language imperative (‘the Court must’) but the words 'as far as practicable' operate, in context, as words of emphasis. Since the word 'practicable' means 'feasible' or 'able to be done or accomplished', the phrase 'as far as practicable' means as far as it is possible to go. Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to 'have regard to' a specific matter requires the Court to give the matter weight 'as a fundamental element in the decision-making process'. Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.

Secondly, the matters to which regard must be had are – without exception – directed at a consideration of the effect of the proposed sentence on the child. This is true even of para (g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’.

The language of para (g) is particularly significant. Plainly enough, this paragraph is concerned with the protection of the community through specific deterrence, that is, deterrence of the particular child offender. General deterrence has traditionally been regarded as an important sentencing consideration at common law precisely because it, too, is conducive to community protection. The deliberate use of language in para (g) which deals only with specific deterrence, and which says nothing about the need to deter others from committing ‘violent or other wrongful acts’, is a clear indication of legislative intention, in our view. As will appear, the same conclusion was reached by the Full Court of the Supreme Court of South Australia, in construing almost identical legislation.

Thirdly, what s 362(1) obliges the sentencing court to do 'as far as practicable' is to impose a sentence which fits the young offender as much as – or perhaps even more than – it fits the crime. Thus the Court must, as far as practicable, impose a sentence which is suitable to the child (para (e)) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:
• strengthen and preserve the child’s relationship with his/her family;
• allow him/her to live at home;
• allow him/her to continue with education, training or employment; and
• result in the minimum stigma to the child.
General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest. The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.

It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.

Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.

For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task

16 August 2011

Open Dore

Yesterday I noted reports that the Victorian Health Services Commissioner was investigating claims that medical records had been abandoned by their creators and were thus publicly accessible.

The bad news continues. Today's Herald Sun features photos of files strewn across the floor of the office. There is a wider selection of snaps at the delightfully named Kitten Of Doom site. (Cats are good for something)

The paper reports that -
Thousands of children's medical files from a controversial treatment program for hyperactivity and dyslexia have been left strewn throughout an abandoned clinic in Melbourne's inner east for the past three years.

The files -which include names, dates of birth, home addresses and medication details - were left inside the Dore clinic in the affluent suburb of Hawthorn when the British-based parent company went into voluntary administration in 2008.

Since then, squatters and vandals have trashed the building, allowing anyone to walk in the back door and access the archives ....

The mother of a then 11-year-old boy in the Dore program, who lost her upfront payment of almost $5000 when the clinic shut, and who wished to remain anonymous, said yesterday she was shocked her son's records were available for anyone to see.

"As parents, we don't know how much information is taken," she told The Australian. "(When the clinic closed) there was no contact, no effort, nothing."

Victorian Health Services Commissioner Beth Wilson said she was "horrified" to learn that sensitive documents had been unsecured for three years. ...

Ms Wilson said she would investigate the apparent breach. In the meantime, she would ensure the administrator placed patient files in safekeeping until all issues surrounding their ownership and privacy were settled.

Administrator Giles Woodgate could not explain why the records were not removed from the clinic and stored securely when the company dissolved in 2008
The Australian comments that -
The Dore program, started by British millionaire Wynford Dore, claimed to cure hyperactivity and dyslexia through eye and balancing exercises and attracted scepticism from the medical profession.

Many borrowed the money to pay the fees from the finance company Dore promoted.

The company went into voluntary administration in 2008 after owing about $13 million to creditors and shut its clinics around the world, including 13 in Australia.
The same paper subsequently reported that -
Children's medical records left unsecured in an abandoned clinic for three years were yesterday seized by Victoria's Health Services Commissioner, who vowed to investigate the serious breach of privacy.

As Victorian Department of Health officials and members of the police privacy unit looked on, Health Services Commissioner Beth Wilson removed all patient information from a former Dore clinic in the inner Melbourne suburb of Hawthorn. While some files were still in boxes, many had been pulled out and scattered throughout the building, which has been vacant since 2008.

The files will be stored securely while Ms Wilson investigates whether the state's Health Records Act has been breached. ..."My initial reaction was to get the records into a secure site," she said. "Whoever held the records is responsible for their storage under the Act."

Department of Health spokesman Graeme Walker said seized medical records would be stored in the department's archives.
The Dore Program has been controversial. 'Curing dyslexia and attention-deficit hyperactivity disorder by training motor co-ordination: Miracle or myth?' by Dorothy Bishop in 43(10) Journal of Paediatrics & Child Health (2007) 653–655 modestly commented that
Dore Achievement Centres are springing up world-wide with a mission to cure cerebellar developmental delay, thought to be the cause of dyslexia, attention-deficit hyperactivity disorder, dyspraxia and Asperger’s syndrome. Remarkable success is claimed for an exercise-based treatment that is designed to accelerate cerebellar development.

Unfortunately, the published studies are seriously flawed. On measures where control data are available, there is no credible evidence of significant gains in literacy associated with this intervention. There are no published studies on efficacy with the clinical groups for whom the programme is advocated. It is important that family practitioners and paediatricians are aware that the claims made for this expensive treatment are misleading.
• The treatment offered by Dore Achievement Centres is being promoted as a "drug free" alternative to conventional treatment for ADHD, and as a 'miracle cure' for dyslexia. It is presented as having a neurological rationale and gains credibility by appearing to be medical treatment.
• The publication of two papers in peer-reviewed scientific journal (Dyslexia) has been presented as giving further credibility to the treatment. However, the research community in this area has been dismayed that work of such poor standard has been published.
• The research purporting to show efficacy of the treatment does not show sustained gains in literacy scores in treated vs. control children. Furthermore, the intervention has not been evaluated on the clinical groups for which it is recommended.
The UK Advertising Standards Authority prohibited repetition of Dore advertisements in Britain.

15 August 2011

Information Afterlives

The Health Records Act 2001 (Vic) recognises that information in health records may continue to be sensitive even when recording ceases or the entity that recorded the information ceases to operate (eg a medical practitioner dies or retires or a clinic ges into banruptcy).

The Office of the Health Services Commissioner in Victoria accordingly indicates that -
Handling, retention and storage of medical records

Health service providers who elect to retain health information must continue to hold it or transfer it to a competent organisation for safe storage in Victoria, until the time when the health information is destroyed in accordance with Health Privacy Principle 4. A competent organisation for storage of records refers to a facility in which legitimate, 'reasonable steps' have been taken to ensure safe and secure storage of personal health information.

Health information must not be deleted until at least 7 years after the last occasion on which the individual received a health service from the provider. In the case of a child, information may only be deleted after the individual attains the age of 25.

Providers may have obligations under other laws or to their medical indemnity funds to retain records longer than the specified periods.

Care should always be taken before destroying any records.

Where information is transferred to another health service provider or organisation, and a copy is not kept, a written note must be made of the name and address of where the information was transferred. Although there is no NPP applying specifically to the transfer of health information, the Federal Privacy Commissioner's Guidelines on Privacy in the Private Health Sector advise health service providers to consider the range of obligations they may have in managing medical records when a practice closes. The guidelines also suggest that patients be informed of the closure.

Upon closure, patients’ health information may be transferred to another health service provider, particularly if the services of the new health service provider are the same as those of the previous health service provider. Where this is not the case, an individual patient’s consent may be needed prior to transfer. Where patients cannot be contacted, suitable storage arrangements will be needed
That guidance is of interest given this afternoon's ABC report that Victoria's Health Services Commissioner is investigating a claim that thousands of medical records were left unsecured in an abandoned Melbourne clinic.
The Commissioner has received a report that children's medical files were left in the Hawthorn Clinic when it went into administration in 2008.

The clinic treated children with autism and other disabilities.

Commissioner Beth Wilson says she believes people have been able to access the files in the building.

"I will be speaking to the administrator with the view to getting those records safely under lock and key," she said.

"We can then sort out how we can get them back to the parents involved and what breaches of the Privacy Act may have occurred.

"Health information is extremely sensitive. It is extremely disappointing if these records have been left unsecure."

Health Minister David Davis says it is unacceptable for medical records to be left abandoned in an unsecured place.

"Clearly it is unacceptable that records should be accessible in this way - records should be protected," he said.

"I will wait to find the facts of the matter, but certainly I think Victorians would not want to see records available in this way."
Indifference to outcomes through abandonment of records - and of responsibilities - might be addressed through meaningful penalties.

Health Privacy Principle 4 concerns 'Data Security and Data Retention'. It provides that -
4.1. An organisation must take reasonable steps to protect the health information it holds from misuse and loss and from unauthorised access,
modification or disclosure.

4.2. A health service provider must not delete health information relating to an individual, even if it is later found or claimed to be inaccurate, unless -
(a) the deletion is permitted, authorised or required by the regulations or any other law; or

(b) the deletion is not contrary to the regulations or any other law and occurs -

i) in the case of health information collected while the individual was a child, after the individual attains the age of 25 years; or

ii) in any case, more than 7 years after the last occasion on which a health service was provided to the individual by the provider-

whichever is the later.
4.3. A health service provider who deletes health information in accordance with HPP 4.2 must make a written note of the name of the individual to whom the health information related, the period covered by it and the date on which it was deleted.

4.4. A health service provider who transfers health information to another individual or organisation and does not continue to hold a record of that information must make a written note of the name and address of the individual or organisation to whom it was transferred.

4.5. An organisation other than a health service provider must take reasonable steps to destroy or permanently de-identify health information if it is no longer needed for the purpose for which it was collected or any other purpose authorised by this Act, the regulations made under this Act or any other law.

Surplus Fetish

Reading the Centre for Policy Development's provocative 161 page The state of the Australian public service: an alternative report [PDF] by James Whelan.

Whelan offers a reminder that -
Public services are an integral part of our lives. From cradle to grave, Australians receive the benefit of services that are directed, managed and delivered by government employees. The most visible of these public servants are those engaged in direct or ‘frontline’ service delivery: the health professionals and teachers in the public health and education systems, police, armed forces and defence personnel, public transport workers and immigration and customs officers. Less visible, perhaps, are the many public servants who develop and implement the wide range of government policies and programs that address climate change and protect our environment and natural resources, manage Australia’s finances, uphold human rights and enforce our laws.

The Australian Government shares responsibility for the delivery of public services with the governments of five states and two territories. To acquit its responsibilities, the Australian Government employs almost 300,000 people [ie 1.5% of the workforce] in its agencies and departments, statutory authorities and government business entities. Over half of these government employees are employed by the Australian Public Service (APS), making it one of our largest employers and most significant investments. By comparison, Australia’s two largest retail companies, Woolworths and Coles, employ 188,000 and 100,000 people respectively.

Since its inception at the time of Australia’s federation, the APS has grown to constitute approximately 160,000 employees in 130 agencies. To some extent, the activities of these public servants are invisible and taken for granted. Many of us would be hard-pressed to accurately describe our many daily interactions with them. This relatively low level of visibility makes the Australian Public Service a vulnerable target for attack: taken for granted and ignored when it does its work well and criticised when it doesn’t.
Whelan comments that -
Our research has examined APS staffing trends and metrics during the last two decades and found:
• The APS experienced a dramatic fluctuation in staffing between 1990 and 2010. Approximately one-third of the APS workforce was retrenched between 1991 and 1999, under the Keating and Howard governments. Most of these retrenchments happened in the early years of the Howard government, when it sacked almost 30,000 APS staff over three years. Although APS staffing levels have almost returned since then to 1991 levels, the Australian population has increased more rapidly.
• Since 1990,there has been a gradual shift towards a more ‘top-heavy’ APS. An increasing proportion of ongoing employees are in Executive or Senior Executive Service (SES) positions. Correspondingly, a decreasing proportion of employees are now in lower level positions.
• There are significant gender-based disparities within the APS workforce. Women are significantly more likely than men to be employed part-time and in non-ongoing (shortterm or casual) positions, and are less likely to be employed in SES positions.
• The APS workforce is less diverse than the Australian community in general, with fewer people with disabilities, fewer Aboriginal or Torres Strait Islander employees, and a continued under-representation of women in the senior levels
Our analysis contradicts the prevailing rhetoric about a burgeoning public service. On the contrary, the growth of the Australian Public Service has lagged behind the growth of the Australian population.
In asking 'How many public servants are enough?' the report notes that -
The size of the public service generates heated political debate. Anti-public service commentators typically resort to the ‘big government’ frame to promote the idea that the APS has too many employees. Conservative politicians, researchers and think tanks assert that the Australian Public Service has grown excessively and that, as a consequence, Australian citizens are over-regulated and excessively taxed.

Julie Novak, a research fellow with the right-wing Institute of Public Affairs, epitomised these arguments recently when she described civilian employees of the Department of Defence as an “army of pen pushers” and referred to public servants engaged in the national preventative health service as “federal health bureaucrats that consume our health budget without providing any medical services”.

Brushing aside the many APS agency functions that are not directly involved in service delivery, Novak sledged the 25% of public servants who “deliver no front-line public service of any kind.” Novak is not alone in this anti-public service rhetoric; she is joined by many Liberal and National Party politicians and, not infrequently, by Labor politicians. Despite speaking highly of the APS, Kevin Rudd also referred to growth in APS staff during the latter years of the Howard Government as “administrative bloating”.

Pledges to reduce the size of public service agencies are a regular feature in the political cycle. In his response to the May 2011 Budget, for instance, Shadow Treasurer Joe Hockey promised to “slash” 12,000 public service jobs if the Opposition wins the 2013 election. His pledge is consistent with the Liberal Party’s record: the Howard government cut 10,000 public service jobs in each of the three years after being elected in 1996 before then beginning to restore agencies’ staffing levels. Mr Hockey denied he was ‘Canberra bashing’, and argued that a reduction in APS staff would achieve some kind of equity: "How can you ask Australians to take a haircut if you are not going to do it yourself?" Gary Gray, Special Minister of State & the Public Service, pointed out the inconsistencies of Mr Hockey’s argument by noting the immediate economic consequences of the threatened retrenchments. During the following week, the Minister pointed to a short-term decline in APS staff numbers as evidence that "the bureaucracy has not blown out on Labor’s watch".

Conservative politicians and their allies in right-wing think tanks routinely refer to 'bloated public services'. This rhetoric follows an established pattern. Public service critics assert that there has been an unsustainable growth in public service employees and argue that to balance the budget, the incumbent government must axe thousands of these unnecessary jobs. What exactly is an 'unnecessary' public servant? Logically, one might assume that employees are unnecessary if the public service agency’s function can be effectively performed with fewer employees. In the to-and-fro of political debate, however, 'unnecessary' is rarely defined so carefully. New South Wales Premier Barry O’Farrell justified the retrenchment of 390 public servants because they were not in permanent positions; accusing the former Labor state government of "rorts" by "allowing hundreds of workers without jobs to remain on the payroll".

Public servants on casual, short-term and other forms of non-ongoing tenure are sometimes described as ‘unattached’, and are the first targets for retrenchment. Most people on this ‘unattached’ list are still doing their jobs and have been technically redefined as ‘excess’ to meet budget targets or in response to mergers. Without doubt, the Australian Public Service is larger today than it has been at earlier times. Since its formation, the APS has grown to encompass more than 100 agencies, which collectively employ approximately 160,000 people. Three APS agencies account for almost half this total: Centrelink (16.7%), the Australian Tax Office (14.5%) and Defence (13.2%). The comparative sizes of Centrelink and the ATO are likely to reflect their ‘frontline’ or direct service delivery function.

To interpret the growth in public service employment, contextual factors must be considered including:
• the potential for efficiency through technological innovation and program simplification
• community expectations about service provision: there is no evidence that we expect less of the Australian Public Service or of state public services. In fact, attitudinal research suggests the contrary. Is it realistic to demand continuous improvement in service provision while cutting thousands of jobs from public service agencies?
• growth in the Australian population: public services are required by a growing number of citizens and
• medium and long term public service employment trends.
The case for a ‘bloated’ public service is generally based on short-term employment patterns and is contradicted by longer-term trends. Between 1991 and 1999, the Keating and Howard governments reduced staff levels across the APS by approximately 50,000 (about one third of the total APS workforce). Since the low point of 1999, staff numbers have gradually returned to early 1990s levels ...

14 August 2011

Sexting and Offender Registration

The Age reports that a "senior magistrate" in "country Victoria" has criticised the state's mandatory registration of people convicted of sexting, registration that is noted in the Victorian Law Reform Commission's recent discussion paper [PDF] on Sex Offender Registration.

Victorian law criminalises possession or transmission of child pornography, characterised as images showing those under 18 "engaging in sexual activity or depicted in an indecent sexual manner or context". Conviction of anyone over 18 results in automatic listing as a sex offender under the Sex Offenders Registration Act 2004 (Vic).

The unidentified case reportedly saw a young man plead guilty after he has received, when an 18 year old,
four uninvited text message pictures of girls, aged between 15 and 17 years, topless or in their underwear. Police found the pictures on his mobile phone and laptop and charged him with child pornography offences.
There is no indication of how the images came to police attention and why the young man did not delete the images.

The Age states that
The magistrate, who spoke on condition of anonymity, said he had made the unusual decision to speak out because he was troubled by cases recently identified by The Sunday Age. ...

On legal advice the youth pleaded guilty and was sentenced to a one-year good behaviour bond without conviction. The magistrate refused the prosecutor's application for the young man to be placed on the sex offender register but police later realised his guilty plea resulted in mandatory registration for eight years. Magistrates have discretion for those aged under 18, but none for adults.

"These people shouldn't be regarded as sex offenders. It's going beyond the pale in relation to the imposition of long-term penalties which are not judicial penalties, they're not fines or community-based orders or even sex offender treatment programs. This is a limitation on what a person can and can't do for the next eight years of their life, for God's sake" ...

The magistrate said that in the sexting cases coming before him in court the offenders "have a minimal amount of culpability attached to them and a minimal amount of danger to any other person in the community. That's when it becomes so unjust".

He called for magistrates and judges to be given discretion over who ought to be listed as a sex offender. "We're the ones that see the material, we hear the pleas from the legal practitioners, we get to hear the prior convictions if there are any, we get to see the actual participants - the people who have been involved in this sort of activity" ...
The Law Reform Commission discussion paper noted above comments that
In November 2003, the Australasian Police Ministers Council formally approved the establishment of the Australian National Child Offenders Register (ANCOR), which became operational on 1 September 2004. ANCOR is a national database of information about registered offenders that is collected under the registration schemes of each Australian state and territory. CrimTrac describes it as ‘a web-based system designed to assist police to register, case manage and share mandatory information about registered persons as required by legislation’. This ‘legislation’ is the registration legislation in each Australian jurisdiction.

Shortly before ANCOR became operational, the Australasian Police Ministers Council agreed on model sex offender registration legislation. All Australian states and territories now have legislation governing the registration of sex offenders, although it is not uniform.
That legislation includes -
• Child Protection (Offenders Registration) Act 2000 (NSW)
Child Protection (Offender Reporting & Registration) Act 2004 (NT)
Child Protection (Offender Reporting) Act 2004 (Qld)
Community Protection (Offender Reporting) Act 2004 (WA)
Community Protection (Offender Reporting) Act 2005 (Tas)
Crimes (Child Sex Offenders) Act 2005 (ACT)
Child Sex Offenders Registration Act 2006 (SA).
The paper goes on -
Mandatory registration forms part of the sex offender registration schemes in most Australian jurisdictions. In Victoria, mandatory registration applies only to adults convicted of sex offences against children. In other states and territories, conviction for child homicide, kidnapping and other offences also results in mandatory registration.

Tasmania is the only state that allows some judicial discretion in relation to the registration of child sex offenders. A person convicted of a registrable offence in Tasmania must be placed on the register ‘unless the court is satisfied that the person does not pose a risk of committing a reportable offence in the future’.

All Australian jurisdictions give courts a discretionary power to order that people convicted of offences other than child sexual offences be placed on the Register. The court can make a registration order on its own initiative in the Northern Territory, Queensland, Western Australia and Tasmania. An application by the prosecution is required in New South Wales, the Australian Capital Territory and South Australia, as it is in Victoria. Most jurisdictions only allow a registration order to be made at the time of sentencing. The exceptions are Victoria and New South Wales, where the application for an order can be made within a few weeks of sentencing.

In all states and territories, except Tasmania, the court can make a registration order if it is satisfied that the offender poses a risk to the ‘sexual safety’ of children, people, or the community generally. It is not necessary, in any jurisdiction, to identify a particular class of children or persons who are at risk. In Tasmania, the court must be satisfied that there is a risk the offender will commit a registrable offence in future. Only the Victorian legislation requires the court to be satisfied beyond reasonable doubt that the person poses a risk to sexual safety; the other jurisdictions do not specify what standard of proof is required.

Generally, when a registered sex offender who is required to comply with reporting obligations under the registration scheme in one jurisdiction moves to or visits interstate, they will be deemed to be a ‘corresponding registered offender’. This means that they will still be a registered offender if they move interstate and will be subject to that new state or territory’s reporting requirements.

The length of a registered sex offender’s reporting period depends upon the type and number of offences for which they were convicted and their age at the time of the offence. The correlation between reporting periods and offences varies across jurisdictions, but the possible duration of a reporting period for an adult is consistently eight years, 15 years or the rest of the offender’s life.

In all jurisdictions except South Australia, the reporting period for juvenile offenders is half of the applicable period for an adult offender. Offenders who are required to report for life may apply to a court — or in New South Wales, the Administrative Decisions Tribunal — after 15 years to have their reporting obligations suspended. Offenders with shorter reporting periods are unable to apply to have the length of their reporting obligations reduced.

In each Australian jurisdiction, the head of the police force maintains the Register. The extent to which the operations of the registration scheme are externally monitored and reviewed varies between jurisdictions.

The New South Wales legislation required the Ombudsman to report to the Minister for Police on the operation of the Act after two years, and the Minister for Police to report to Parliament on the police objectives of the Act as soon as possible after receiving the Ombudsman’s report. Both of these reports have been completed.

Several other jurisdictions have review requirements that involve reporting to Parliament, while some do not deal with review at all. The monitoring provisions in the Australian Capital Territory and Victoria are limited to checking that the police comply with their statutory obligations concerning maintaining and securing access to the Register.

The Sex Offenders Registration Act establishes a mandatory and universal registration scheme that seeks to monitor the activities of child sex offenders when they return to the community after completing their sentences. The scheme is universal in two respects: it applies to all people convicted of sexual offences involving children and the same reporting requirements apply to all registered sex offenders. It applies to a very broad range of offences.

The courts do not have the power to determine which convicted sex offenders require monitoring or to devise individualised reporting requirements that seek to monitor the activities of a particular offender. Research indicates, however, that sex offenders do not re-offend more often than other serious offenders and that there are identifiable characteristics of ‘high risk’ offenders that could possibly be useful predictors of recidivism. The Commission will investigate whether some form of individualised judicial decision making about both inclusion in the Register and the content of reporting obligations is desirable.

The universal operation of the scheme has caused the Sex Offenders Register to grow very quickly, with more than 20,000 registrants anticipated in the first 30 years of the scheme. The Commission will investigate the resource implications of this growth, especially for Victoria Police and the Department of Human Services.

The scheme appears to have become a significant source of child protection notifications to the Department of Human Services. The Commission will examine whether information provided as part of the sex offender registration scheme provides the Department of Human Services with useful advice about possible child abuse.

The scheme also appears designed to give convicted child sex offenders and the community important messages. It seeks to inhibit re-offending by making convicted sex offenders aware of the fact that they are being monitored and to reassure the community that the police are aware of some of the activities of these people. Both points were emphasised by the New South Wales Minister for Police in 2000 when introducing the Bill upon which the national registration scheme was based. The Minister said that the scheme would ‘better convey to the offender that police are aware of them’ and ‘provide child abuse victims and their families with an increased sense of security’. The Commission will investigate whether this scheme is an effective means of achieving these goals.