08 October 2011


The NSW Bureau of Crime Statistics and Research has released a series of concise 'snapshots' on sentencing in that jurisdiction

Sentencing snapshot: drink-driving 2009-2010 [PDF] by Lily Trimboli describes the penalties imposed on convicted drink-drivers in NSW.

Trimboli reports that a fine is the most serious penalty, imposed on 60% of convicted drink-drivers. The average fine varies according to the PCA range of the offence: $470 (low range PCA range), $702 (middle range PCA offence), $1,043 (high range PCA offence) and $365 (special range PCA offence). The second most common penalty is a bond without conviction or no conviction recorded, imposed on about 23% of convicted drink-drivers. Bonds without conviction or no conviction recorded, however, remain extremely rare for offenders convicted of high range PCA offences. In 2009 and 2010 a total of 43,684 offenders were convicted of a PCA offence in NSW Local Courts. Of these offenders:
• approximately 31% were convicted of a low range PCA offence, 46% were convicted of a middle range PCA offence, 16% were convicted of a high range PCA offence and 7% were convicted of a special range PCA offence;
• 72.2% had no convictions of any kind in the five years prior to their index offence;
• between 14.5% (low range PCA offence) and 19.4% (high range PCA offence) of offenders had prior drink-driving convictions, without being imprisoned for a PCA offence. The percentage of PCA offenders who had been imprisoned in the previous five years for a PCA offence was negligible (that is, under 1%);
• 60.2% of offenders received a fine for their index PCA offence;
• the average fines were $470 (low range PCA offence), $702 (middle range PCA offence), $1,043 (high range PCA offence) and $365 (special range PCA offence);
• the second most common penalty was a bond without conviction or no conviction recorded, with 22.6% overall receiving this sanction. However, these sanctions were very rarely (2.3%) imposed on high range PCA offenders;
• although PCA offenders are rarely imprisoned, the risk of imprisonment is higher for those few offenders who have prior convictions and especially high for the very small percentage of PCA offenders who have been previously imprisoned for a PCA offence.
Katrina Grech's Sentencing snapshot: motor vehicle theft 2009-2010 [PDF] indicates that during that period 760 offenders were convicted of motor vehicle theft in NSW Local and District Courts. Imprisonment was the most commonly imposed penalty, followed by a bond without supervision and a suspended sentence. The risk of imprisonment increased with the number of prior convictions. In addition, offenders previously imprisoned for theft or a related offence were most likely to be sentenced to imprisonment for their current motor vehicle theft offence (96% and 84% respectively).
The average age of offenders was 27. The most common penalty imposed on convicted offenders of MVT was a sentence of imprisonment. The second most common penalty was a bond, followed by a suspended sentence. Close to 50% of offenders convicted of theft of a motor vehicle were sentenced to imprisonment, with the average minimum term of 20 months and average maximum term of 34 months. Close to 40% of offenders convicted of illegal use of a motor vehicle were sentenced to imprisonment, with the average minimum term of seven months and average maximum term of 10 months. The likelihood of prison was strongly affected by the number of prior convictions of the offender. Of those offenders of theft of a motor vehicle with no prior convictions 32% were sentenced to imprisonment. For those with four or more convictions, 70% were sentenced to imprisonment. For offenders of illegal use of a motor vehicle, 8.3% of those with no priors were sentenced to imprisonment, rising to 64.7% for those with four or more.
Don Weatherburn's Sentencing snapshot: robbery, 2009-2010 [PDF] notes that the most common penalty imposed on a convicted robbery offender was a prison sentence, with imprisonment of 79% of offenders convicted of an aggravated robbery offence and 58% of offenders convicted of a non-aggravated robbery offence. Those who were not imprisoned generally received suspended prison sentences. The average aggregate sentence for aggravated robbery was 44 months, with an average minimum term of 25 months. The average aggregate sentence for a non-aggravated robbery was 24 months, with an average minimum term of 14 months.Sentencing snapshot: sexual assault, 2009-2010 [PDF] by Clare Ringland describes the penalties imposed on adult offenders convicted of sexual assault (not including child sexual assault). Ringland comments that -
The most common penalty imposed on an offender convicted of sexual assault was a prison sentence. Prison penalties were imposed on 86% of offenders convicted of an offence of aggravated sexual assault, with an average aggregate sentence of 77 months, and an average minimum term of 48 months. As the number of prior convictions increased the proportion of offenders given a prison sentence increased. For example, of those convicted of aggravated sexual assault offences, 77% of those with no prior convictions received a prison sentence, while those with three or more prior convictions were almost guaranteed to receive a prison sentence (97%).

Indigenous Disadvantage

With Anne Twomey's comments about a possible change to the Australian Constitution in mind, it's interesting to read 'Constitutional deficiencies in the protection of Indigenous rights: Reforming the races power' by Melissa Castan in 7(25) Indigenous Law Bulletin (2011) 12-17.

She comments that -
When former Prime Minister Kevin Rudd made a formal apology to the stolen generations his actions were widely acclaimed as an acknowledgement that was long past due, and of significant value. Although the Apology did not seek to directly address any of the constitutional or legislative deficiencies residual in our legal system, it did hold great symbolic and therapeutic meaning, not only for those to whom the Apology was directed, but for many in the broader Australian community. Now, by virtue of an unusual constellation of political and parliamentary forces, the usually slow orbit for constitutional reform has presented the opportunity for a long overdue referendum on meaningful constitutional recognition of Indigenous Australians.

This paper examines some of the constitutional deficiencies in the protection of Indigenous peoples rights, in order to demonstrate the real need to grasp the ‘constitutional moment’ and reform our foundational document. Then, it considers the problems with the races power (s 51(xxvi)), and the need to replace it with a clear federal power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. Suggestions for a ‘non-discrimination’ clause are then considered. Finally the option of an agreement making power is discussed.
She argues that -
there are some aspects of recognition that are more than symbolic, long overdue and achievable. To affect Commonwealth legislative powers, a change to s 51 is needed. Section 51(xxvi) could be altered to authorise the Commonwealth to make special laws only for the benefit of any race, but then we will still be reliant on the High Court’s interpretation of ‘benefit’, a value judgment that the High Court is not always ready to embrace. It would be preferable to amend that section to explicitly grant the Commonwealth the power to make laws “with respect to Aboriginal and Torres Strait Islander people” (it seems it has only ever used the races power regarding Aboriginal and Torres Strait Islander people so far) so as to avoid the possibilities of discriminatory laws ‘for’ Indigenous people. Would it be sufficient to simply delete s 51(xxvi)? If the section were repealed and no positive grant of power to make laws for Aboriginal and Torres Strait Islander people replaced it, the very issue the 1967 referendum sought to redress would arise again. The Commonwealth would face a deficit of legislative power. It is not likely to be able to rely on other heads of power, such as the External Affairs power, to compensate for that deficit. Could we leave s 51(xxvi) as it is, but add a clause prohibiting discrimination on the basis of race or ethnic origin? This would also be unsatisfactory, for we would be left with a ‘Races’ power and a prohibition on making racially discriminatory laws, a seemingly inconsistent and incoherent use of the concept of ‘race’. Thus the removal of s 51(xxvi) must be accompanied by a positive grant of power to make laws for Aboriginal and Torres Strait Islander people.
In particular, Castan argues that to ensure the Commonwealth makes only ‘beneficial’ laws, there must be a constitutional prohibition on racial discrimination, perhaps sitting in place of the now deleted s 127.
As Mick Gooda rightly said "... if Australians were aware that their Constitution did not protect its citizens from discrimination, the nation would take collective action to bring about reform to enshrine the principles of non-discrimination and equality."

Many Constitutions contain such guarantees against racial discrimination, and this would be consistent with Australia’s international commitments under the Convention on the Elimination of Racial Discrimination, and other human rights treaties. A general ‘equality clause’ is a desirable inclusion in a Constitution that seriously lacks human rights standards. Such a clause would guarantee ‘equal treatment before and under the law, and equal protection and benefit of the law without discrimination’ as found in many comparable nations’ constitutions. However this would present considerable political challenges in terms of achieving approval at referendum, and it goes further than recognising Indigenous people of Australia. A more focused ‘anti- discrimination’ clause, specifically one that prohibits racial discrimination in the terms Australia has already adopted in the Racial Discrimination Act 1975 (Cth) or the Convention on Elimination of Racial Discrimination should be adopted. Such an ‘non-racial discrimination’ clause also should provide that the Commonwealth and the states are still able to make laws that redress disadvantage, or are protective of Indigenous culture, language and identity. This provision is important to allow laws that address strategies that promote substantive (as opposed to formal) measures of equality, and that promote the special place of Australian Indigenous culture. It also would be consistent with Australia’s obligation to protect Indigenous culture under Article 27 of the International Covenant on Civil and Political Rights (Australia signed onto this in 1980) and the UN Declaration on the Rights of Indigenous People (we endorsed this in 2009).

Gender Identity

Reading AB v Western Australia [2011] HCA 42, concerned with gender identity.

The Gender Reassignment Act 2000 (WA) provides for the issue of a recognition certificate that is conclusive evidence of the fact that a person has undergone a gender reassignment procedure and "is of the sex stated in the certificate". The Act establishes a Gender Reassignment Board with power to issue recognition certificates. The Act's objects include promotion of equality of opportunity and provision of remedies regarding discrimination.

The Board determines applications for recognition certificates and issues recognition certificates. The WA Registrar of Births, Deaths and Marriages must alter any register or index in response to the recognition certificate following reassignment[, with the individual's birth certificate thence showing the person's sex in accordance with the register. In order to successfully apply to the Board for a certificate it is necessary for the person to have undergone a 'reassignment procedure', defined as
a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child's gender characteristics
The Board must be satisfied that the person applying for a recognition certificate -
(i) believes that his or her true gender is the gender to which the person has been reassigned;
(ii) has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned; and
(iii) has received proper counselling in relation to his or her gender identity.
The High Court decision is founded on dispute about those 'gender characteristics', defined as "the physical characteristics by virtue of which a person is identified as male or female".

Appellants AB and AH identify as male and have undergone gender reassignment procedures (bilateral mastectomy and testosterone therapy) but retain some gender characteristics of a female. The Board was satisfied that the appearance of each appellant is that of a male person and "that all the indications were that they had adopted the lifestyle of such a person". It determined not to issue a certificate to them on the basis that that they retained a female reproductive system, reasoning that "the fact of having a female reproductive system is inconsistent with being male. Because it is inconsistent with being male, it is inconsistent with being identified as male." The Board indicated that there would be adverse social and legal consequences from issuing a recognition certificate to individuals who have the capacity to bear children.

The WA State Administrative Tribunal in reviewing the Board's decision in AB & AH v Gender Reassignment Board (WA) (2009) 65 SR(WA) 1 granted each application for a recognition certificate and directed the Board to issue such a certificate. In turn, the Court of Appeal of the Supreme Court of Western Australia in The State of Western Australia v AH (2010) AMLC 30-02 allowed appeals and set aside the Tribunal's decisions. The High Court has now reinstated the Tribunal's decision, setting aside the Supreme Court's judgment.

Both appellants identified as a male from an early age and were diagnosed as suffering from gender dysphoria, characterised in the Diagnostic & Statistical Manual of Mental Disorders as "strong and persistent feelings of discomfort with one's assigned sex, the desire to possess the body of the other sex, and the desire to be regarded by others as a member of the other sex." AB was 31 at the time of the Tribunal hearing; AH was 26.

Neither appellant contemplate surgical procedures such as phalloplasty (unavailable in Australia because of "high risks and its low rate of success") and a hysterectomy, as "neither considered it necessary to their sense of male identity". The Court noted that each of the appellants has maintained testosterone therapy. Whilst they continue that treatment they will remain infertile; the Tribunal accepted "without reservation" that the appellants plan to continue with the treatment and will therefore remain infertile.

The Tribunal stated that -
The applicants have not merely altered their external appearance by superficial means. The medical and surgical procedures they have undergone have altered their genitals and other gender characteristics in profound ways. They have undergone clitoral growth and have the voices, body shapes, musculature, hair distribution, general appearance and demeanour by virtue of which a person is identified as male. They have acquired characteristics that are consistent with being male, and inconsistent with being female, to the extent that only an internal medical examination would disclose what remains of their female gender characteristics. Insofar as what remains of their female gender characteristics has been altered to such an extent that it no longer functions, it is no longer a female gender characteristic.
It held that the appellants had done "everything medically available, short of hysterectomy, to alter their genitals and other gender characteristics so as to be identified as male", with a "requirement that each go even further and undergo a hysterectomy in these circumstances would seem to serve the purpose only of requiring further proof of their conviction."

The issue before the Court of Appeal was whether the appellants satisfied the requirement of s 15(1)(b)(ii) of the Act, with the majority in considering "gender characteristics" (in particular, whether each of the appellants has the "physical characteristics by virtue of which a person is identified" as male) holding that because in the absence of a hysterectomy the appellants retain some characteristics of a female they could not be identified as male. Martin CJ for example held that each of the appellants "possess none of the genital and reproductive characteristics of a male, and retain virtually all of the external genital characteristics and internal reproductive organs of a female" and that "[t]hey would not be identified, according to accepted community standards and expectations, as members of the male gender." Buss JA in dissent considered that the physical characteristics by which a person is identified as male or female are confined to external physical characteristics, for the purposes of the Act, going on to note that there are limitations to the extent to which a person's physical characteristics could be altered and observing observed that the purpose of the Act is to alleviate the condition of persons suffering from gender dysphoria, by providing a legislative mechanism which will enable their reassigned gender to be legally recognised.

Buss commented that the legislation is directed to the disconformity inherent in gender dysphoria between the person's rejection of their assigned gender and their external physical characteristics. The language chosen by the WA Parliament in the definitions of the terms "gender characteristics" and "reassignment procedure" in the Act was relevant: if the physical characteristics by virtue of which a person is identified as male or female were intended to include internal physical characteristics, such as organs associated with the person's gender at birth, the definitions would respectively have referred to the physical characteristics by virtue of which a person "is" a male or female or "will be" a person of the opposite sex. Instead the definitions refer to the physical characteristics by which a person is, or will be "identified" as a person of the opposite sex. His Honour read the words "identified as" as connoting "recognised as".

The High Court in hearing the appeal commented that -
The Act acknowledges the difficulty under which certain members of society labour by reason of the disconformity between their belief about who they are, by reference to their gender, and the social-historical record of their gender at birth. It seeks to alleviate that suffering and the discrimination which such persons may face by providing legal recognition of the person's perception of their gender.

However, a person's belief about their gender is but one requirement for the issue of a recognition certificate. Section 14 of the Act contains the minimum condition for a recognition certificate, namely that an applicant for a certificate has undergone a medical or surgical procedure to alter their genitals or other gender characteristics. The undertaking of that procedure may be seen to evidence the commitment by the person to the gender to which the person seeks reassignment. ...

Section 15(1)(b)(i) also requires the Board to be satisfied about the person's belief in his or her true gender and sub-par (iii) requires the person to have received proper counselling concerning his or her gender identity. These are matters which are directed to how the person perceives himself or herself and the certainty of that perception.

Section 15(1)(b)(ii) involves an enquiry, on the part of the Board, of a different kind. It requires, in the first place, that the Board be satisfied that the person has adopted the lifestyle of a person of the gender to which the person seeks reassignment. The adoption of a lifestyle will reflect something about a person's self-perception and, in some respects, about their maleness or femaleness. The word "lifestyle" refers to the characteristic manner in which a person lives and reflects a collection of choices which that person makes. It has both a private and a public dimension. Many lifestyle choices made by a person are observable by other members of society, by reference to how that person lives and conducts himself or herself. The first enquiry of s 15(1)(b)(ii) may therefore also direct the attention of the Board to a social perspective.

Section 15(1)(b)(ii), read with the s 3 definition of "gender characteristics", further requires the Board to be satisfied that the person has the physical characteristics "by virtue of which a person is identified as male or female". In resolving what is intended by this provision, much turns upon the use of the word "identified". The majority in the Court of Appeal appear to have considered that it required the Board to determine the extent to which a person had assumed the characteristics of the opposite sex. In the way in which that enquiry was approached, it appears to have been assumed that there is some point which is reached, in the transition, when a person might be regarded as male not female or female not male. That is not an approach that is reflected in the provisions of the Act.
The Court went on to state that -
Martin CJ observed that the word "identified" is used in s 3 in the definition of "reassignment procedure" ("identified by a birth certificate") and in the definition of "recognition certificate" ("that identifies a person who has undergone a reassignment procedure as being of the sex to which the person has been reassigned"). The inference his Honour drew from the usage of the word "identified" was that it carried the connotation of "established" or "accepted as". This suggests that an applicant for a recognition certificate must have achieved the gender characteristics of the opposite sex to a high standard.

Section 14(1) cannot be taken to require a particular level of success in achieving the gender characteristics of the opposite sex. Such an approach was considered in R v Harris, in relation to a male to female transsexual. However, as Lockhart J observed in SRA, a male to female transsexual after surgery is no longer a functional male, but a female to male transsexual is in a different situation. Even successful surgery cannot cause him to be a fully functional male. An approach to the requirements of s 15(1)(b)(ii) which has regard to the extent to which a person obtains gender characteristics of the gender to which they identify would therefore operate differentially and unfairly. Such an affect cannot be taken to have been intended in legislation such as this, which is of a remedial and beneficial kind.

It is also relevant that a surgical procedure to alter the genitals or other gender characteristics is not required of an applicant for a recognition certificate. The definition of "reassignment procedure" refers to a "medical or surgical procedure". A medical procedure would include hormone therapy, such as that undertaken by the appellants. As the Tribunal observed, although surgery is a requirement of legislation providing for recognition of gender reassignment in other States, and it is evident that Parliament was familiar with that legislation, Parliament did not consider surgery to be a necessary step in order to acquire the gender characteristics by which a person is identified as male or female. The options thus provided by the Act do not lend support for a view that a person must take all possible steps, including with respect to their sexual organs, to become as male or female as possible.

On one view the definition of "reassignment procedure" might suggest a concern with the result achieved by the surgical procedure. The words "so that the person will be identified as a person of the opposite sex" may be thought to connote a level of certainty of identification as male or female. However, s 14(1) and s 15(1)(b)(ii) may be read together in a more harmonious way, by attributing the purposive aspect of s 14(1) to the person. Section 14(1) may be understood to require that the person undertakes a reassignment procedure with the intention that he or she may be identified by others as being of the gender to which he or she seeks reassignment. Furthermore, s 14(1) requires only that the medical or surgical procedure alter the genitals and other gender characteristics of a person. It does not require that the person undertake every procedure to remove every vestige of the gender which the person denies, including all sexual organs.

Martin CJ accepted that it could not have been intended that a person have all of the physical characteristics of a person of the opposite gender and held that the test must be one of sufficiency. However, that leaves unanswered the question – sufficient for what purpose? The answer would appear to be social recognition. The Act does not, by s 15(1)(b)(ii), contemplate some abstract evaluation of maleness or femaleness. Its objects suggest that the question for the Board is to be approached from a social perspective, which is to say, by reference to what other members of society would perceive the person's gender to be. Such a perspective is consistent with the objects of the Act, which are to remove impediments to the way in which a person lives within society. So long as the other requirements of ss 14(1) and 15(1)(a) and (b) are met it is intended that legal recognition be given of the gender with which the person is identified within society. Section 15(1)(b)(ii) is addressed to that perspective. The question it raises is what gender the person exhibits to other members of society, by reference to the gender characteristics they now have and to their lifestyle. That conclusion would be reached by reference to the person's appearance and behaviour, amongst other things. It does not require detailed knowledge of their bodily state.

The question whether a person is identified as male or female, by reference to the person's physical characteristics, is intended by the Act to be largely one of social recognition. It is not intended to require an evaluation by the Board of how much of a person's body remains male or female. Rather, the Board is directed by s 15(1)(b)(ii) to the question of how other members of society would perceive the person, in their day-to-day lives. Such a recognition does not require knowledge of a person's remnant sexual organs.

The concern of s 15(1)(b)(ii) may be taken to be whether a transsexual person's appearance and behaviour in the conduct of their life would be accepted by other members of society as conforming to the gender to which the person seeks reassignment. That is what is intended by the phrase "is identified as male or female" in the s 3 definition of "gender characteristics". Such an understanding of the operation of s 15(1)(b)(ii) is consistent with the objects of the Act, which are to facilitate the acceptance of a person, as being of the gender to which they are reassigned, within society so that they may fully participate within it. No point would be served, and the objects of the Act would not be met, by denying the recognition provided by the Act to a person who is identified within society as being of the gender to which they believe they belong and otherwise fulfils the requirements of the Act.

Constitutional Preamble

The 69 page 'Constitutional Recognition of Indigenous Australians in a Preamble' (Constitutional Reform Unit, Sydney Law School, Report No. 2, 2011) by Anne Twomey notes that in 2010 the Rudd Government promised to hold a referendum on ‘indigenous constitutional recognition’ at or before the next election. The nature of such recognition in the Constitution is being considered by an expert Panel appointed by the Commonwealth

The Panel is to be guided by four principles -
• It must contribute to a more unified and reconciled nation.
• It must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples.
• It must be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums.
• It must be technically and legally sound.
Its Discussion Paper sets out seven ideas, including a statement of recognition in the body of the Constitution, a statement of recognition and values in the body of the Constitution, the amendment or repeal of the race power in s 51(xxvi) of the Constitution, the repeal of s 25 of the Constitution and the insertion of an agreement-making power in the Constitution, recognition of Indigenous Australians in the existing Preamble to the Commonwealth of Australia Constitution Act 1901 (UK) or a new preamble to be inserted in the Constitution, and through a statement of values be included in a new preamble.

Twomey's Report addresses the Preamble proposals. It has the following structure -
Chapter 2 deals with the background and history of the existing Preamble in the Commonwealth of Australia Constitution Act, including the references to God, the Crown and the indissoluble federation. It considers the various proposals that have been made in the past for Indigenous recognition in the Preamble, and discusses how this has been achieved in three State Constitutions.

Chapter 3 provides a close analysis of preambles – their different purposes and how they have been used in statutory interpretation. A preamble, for example, may simply set out introductory facts. It may explain the objectives of those who passed the Act. It may be intended to persuade people to obey the law or explain how it should be enforced. It may have a political or symbolic role to fill. Chapter 3 then discusses the role of a preamble in a Constitution and the risks involved in extending beyond introductory facts to statements of values, beliefs and fundamental principles. Can a preamble that incorporates values and beliefs reach beyond platitudes? Can it really define the nation and our common values or beliefs, or is a quest for shared values and beliefs futile and bound to exclude or reject the values of minorities? Do we want to freeze existing values in a preamble and will they stand the test of time?

The critical issue with a preamble, however, is how the High Court might use it in the future in interpreting the Commonwealth Constitution. Australian precedents are not very helpful here, because the current Preamble doesn’t address values and beliefs and is the Preamble to a British Act of Parliament passed over a century ago, leaving its relevance limited. A new preamble, inserted in the Constitution, which contained broad values, beliefs or fundamental principles, might be used in quite different ways. Chapter 3 notes the international trend in courts to giving constitutional preambles a substantive effect. It provides four case studies of how the courts have used and developed the preambles of the United States, Canada, India and France.

Chapter 4 analyses the legal issues concerning the amendment of the existing Preamble and the insertion of a new preamble in the Constitution itself. It considers the source of power to amend the existing Preamble. While there are doubts as to whether a constitutional referendum under s 128 of the Constitution could amend the existing Preamble, it could certainly be amended by legislation passed by the Commonwealth at the request of all the State Parliaments. This route, however, would confound the expectations of the people for a referendum and breach the Prime Minister’s promise, so a referendum would appear to remain a political requirement, even though it might not in itself be effective. Amending the existing Preamble would also make little sense unless it was intended to explain substantive changes made in the text of the Constitution. It is not possible to change the original intent of the framers of the Constitution by making a later change to the Preamble. To what extent should an amended Preamble be used to change the interpretation of provisions in the text of the Constitution that have not been expressly amended?

Different issues arise if a new preamble is to be inserted in the text of the Constitution. From a structural point of view, it would be placed after the words of enactment, within the substantive text of the Constitution, with the possible result that it would be held to be legally enforceable unless it was made clear otherwise. An issue also arises as to whether the two preambles could co-exist and which ought to take priority. The greatest difficulty, however, would be in settling the text of a new preamble, as there will be great pressure to include recognition of numerous groups (eg war veterans), causes (eg the environment) and institutions (eg local government). It could result in an unseemly and divisive political auction for constitutional recognition

Chapter 5 examines more closely the potential implications of a new or amended preamble and how they might be limited, either through careful wording or the inclusion of a clause that limits the use of the preamble in constitutional interpretation. On the one hand there are genuine concerns about how a preamble might be used by the courts, especially if it includes rights or broad principles such as equality or human dignity. On the other hand, a clause limiting the effect of a preamble is likely to be regarded as undermining the purpose and standing of the preamble. The challenge is to balance both of these concerns, so that the preamble is not perceived as a Trojan Horse intended to smuggle substantive rights into the Constitution that would not be approved by the people if expressly asked, or as an empty gesture devoid of meaning or substance.

Chapter 6, in conclusion, asks what is intended to be achieved by recognition of Indigenous Australians in the Constitution. If substantive rights are sought, they should be included in the text of the Constitution and the preamble should then be used to explain and introduce them. The preamble should not be disconnected from the text of the Constitution and promise more than it can legitimately deliver. What is critical to any constitutional reform proposal is that there be transparency in intent and clarity in meaning.

07 October 2011

Biometrics in UK

The UK Parliament's Joint Committee on Human Rights (JCHR) has published a report on the Protection of Freedoms Bill.

The committee endorses the Bill as providing enhanced human rights protection which the Bill but believes that this protection should be further strengthened.

In relation to powers of entry the committee welcomes the Cameron Government's review of existing powers of entry to private properties, including homes but is "deeply concerned" that the proposals in the Bill could create new risks to individual rights by authorising the Government to extend existing powers of entry or further restrict safeguards. It notes that the Home Office has published a list of around 1200 statutory powers with associated powers of entry.

In relation to biometrics the committee concludes that the provisions regarding biometric material create a less intrusive mechanism for the retention of DNA and fingerprints. The committee however expresses concerns that the Bill creates unjustified risks to the individual right to privacy. It calls on the Government to provide further justification or significantly amend the Bill. The proposed statute provides that DNA profiles and fingerprints taken from innocent people arrested but not charged will be retained in "prescribed circumstances" for up to 5 years. The committee concludes that in some cases this may create a significant risk of incompatibility with the right to privacy and calls for further evidence that this approach is justifiable.

The committee criticises a proposal that the police should have a broad discretion to retain biometric material – by means of unlimited 2 year renewals – for reasons of national security. It concludes that the Minister has not shown this to be proportionate or necessary. Major winding back of powers regarding retention was promised by the Government in announcing abandonment of the UK National Identity Card scheme shortly after the national election, an announcement critiqued in an article by this author in Privacy Law Bulletin at that time.

It calls on the Government to amend the new safeguards in relation to the processing of children’s biometric information, recommending that the Bill be amended to enable children of sufficient maturity and understanding to decide for themselves whether their biometric information should be processed.

The committee welcomes the proposal for a surveillance code to regulate operation of CCTV by public authorities but concludes that in the absence of a final draft it is difficult to assess whether that code will strike an appropriate balance between an individual’s right to a private life and the wider interest of prevention and detection of crime.

The committee welcomes permanent reduction in the maximum period of pre-charge detention of terrorist suspects to 14 days but questions whether the need to provide for a contingency power to extend the period of pre-charge detention beyond 14 days in the event of a future emergency is supported by the evidence.

The committee recommends that the restrictions on the jurisdiction of the Upper Tribunal in the Safeguarding Vulnerable Groups Act 2006 be repealed to provide for an appeal by those on the barred list.

It also supports amending the Bill to change the Public Order Act 1986 to remove all reference to public order offences based upon insulting words or behaviour. This amendment would enhance human rights and remove possible incompatibilities with the right to freedom of expression.

Committee chair Hywel Francis MP commented that -
We are also concerned that the Government wants to continue to retain the DNA profiles and fingerprints of innocent people who have been arrested then released without a clear justification of why this is necessary or justifiable.

Retention of this type of sensitive material must be governed by a clear statutory framework which limits retention to circumstances which are justified in the interests of the prevention and detection of crime. Unfortunately, the Government’s current proposals for a "catch-all" discretion for police to retain material for undefined reasons of "national security" does not appear to meet that standard.

04 October 2011


A perspective on the Washington Declaration on Intellectual Property and the Public Interest (see here) and the New Zealand Ko Aotearoa TÄ“nei report is provided in the 32 page 'Conducting Research with Tribal Communities: Sovereignty, Ethics and Data-Sharing Issues' (Seattle University School of Law Research Paper No. 11-24) by Anna Harding, Barbara Harper, Dave Stone, Catherine O'Neill, Patricia Berger, Stuart Harris & Jamie Donatuto.

It states that -
When conducting research with American Indian tribes, informed consent beyond conventional Institutional Review Board (IRB) review is needed because there may be potential for adverse consequences at a community or governmental level that are unrecognized by academic researchers.

This paper reviews sovereignty, research ethics, and data-sharing considerations when doing community-based participatory health-related or natural resource-related research with American Indian nations and presents a model material and data-sharing agreement that meets tribal and university requirements.

Only tribal nations themselves can identify potential adverse outcomes, and they can do this only if they understand the assumptions and methods of the proposed research. Tribes much be truly equal partners in study design, data collection, interpretation, and publication. Advances in protection of intellectual property rights are also applicable to IRB reviews, as are principles of sovereignty and indigenous rights, all of which affect data ownership and control.

Academic researchers engaged in tribal projects should become familiar with all three areas: sovereignty, ethics and informed consent, and intellectual
While respecting autonomy and conscious of past academic abuses (including indifference) one might question whether "Only tribal nations themselves can identify potential adverse outcomes".

The authors comment -
University-Tribal Material and Data-Sharing Agreement (MDSA)

To date, an appropriate MDSA between tribal communities and outside researchers has not been published in the literature. Such an agreement can provide and enforce equitable exchanges of information that benefit the community without infringing on the privacy of the study participants or on the sovereign rights of the tribe.

Table 1 summarizes current references to tribal codes of ethics related to research and IPR. The references cited in Table 1 formed the foundation for the initial MDSA of an NIEHS-funded university-tribal collaborative study between CTUIR and OSU .... In addition to conventional items, the MDSA addresses data ownership and publication processes. This document incorporates input from the team of OSU and CTUIR researchers, the project’s Tribal Advisory Committee, OSU’s IRB and Research Contracts offices, the CTUIR Health Commission, and the Portland Area Indian Health Board. The MDSA was reviewed and approved by each organization's legal officials. The final agreement has the following components:
• General project scope and collaborator: States the purpose of the project, the identity of the organizations participating in the agreement, the length of the agreement, procedures for its amendment or termination, and basic definitions.
• Types of material and data collected: States the types of material and data to be collected and the general collection method. This includes data, such as analytical sampling results and demographic attributes, as well as collected organic material, transcripts of focus group discussions, and project-specific questionnaires.
• Constraints on material and data use: Assures that materials and data supplied by the tribe to researchers, or collected by researchers on behalf of the tribe, are and remain tribal property and are not to be shared with third parties without the written permission of tribal authorities. It includes procedures for publication and post-completion return of all materials and data.
• Data access and security: Details the procedures for maintaining the physical security of the data, such as providing locked storage areas for paper documents and encrypting electronic media. Restricts data access to approved project researchers who require it for a specific task.
• Risks and benefits of research to the tribal community: Summarizes the risks and benefits to be expected from participation in the research project, for both the individual and the tribal community.
• Agreed-on mutual review processes: As a two-way document, the CTUIR agreed that it has equal responsibility for timely completion of research tasks and reports.
Developed in tandem with the MDSA were informed consent forms and confidentiality agreements. While the focus of this paper is on informed consent at the tribal government level, individual informed consent is equally imperative if the research involves human subjects.

Whether researchers plan to attend a community gathering such as a pow-wow and survey participants, or hold focus-groups with tribal elders, individual informed consent is necessary for the same reasons as informed consent in a government context. Extra time and care must be taken to ensure that individuals know what they are consenting to, including clear and concise descriptions of the purpose of the research, use and storage of the information collected, and issues of anonymity. Moreover, many tribal organizations have their own IRBs, or require researchers to obtain IRB approval from an organization such as the Indian Health Service, in addition to any academic IRB review. Tribally-affiliated IRBs are necessary to ensure against potential adverse impacts to tribal individuals or governments that may be overlooked by academic IRBs and therefore are not redundant review processes.

The informed consent form provides potential tribal participants with straightforward information on the risks and rewards of project participation. The confidentiality agreements are required to be signed by university research personnel who have access to project material and data. These forms are held by the tribal researchers under secured conditions so that they know who has access to the data and for what purpose.

The MDSA between CTUIR and OSU explicitly states agreed-on processes for the purposes of transparency for the benefit of university researchers and tribal governmental officials and other reviewers, and newer investigators and students. Mutually accommodating, the MDSA includes provisions such that both entities share equal responsibility for meeting project schedules and timely review of publications and grant reports. As tribes build scientific capacity, the collaboration model has moved from collecting data from tribes and reporting information back to them, to one of an equal tribal-university partnership in the research and in the dissemination of results to federal, community, and academic constituencies