21 July 2016

Australian Universities Funding

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

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

Hosking v Runting

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

Crimping Political Communication in the ACT administration?

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

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

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

Productivity Commission's draft Agriculture Regulation report

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

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

Discrimination

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

FOI

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

Governance

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

20 July 2016

Holmes and Masculinity

'Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness' by John M. Kang in (2016) 118(3) West Virginia Law Review 2067 comments
In order for constitutional democracy to endure, Americans must be tough, must be manly — and indeed heroic; or so Oliver Wendell Holmes argued, the famous justice who, in his mid-twenties, was also a thrice wounded veteran of the Civil War. 
Holmes is often wrongly portrayed as a social Darwinist or as a political progressive sympathetic to workers or even as a prototypical liberal softy of sorts. Notwithstanding his own words, there were few bases for these accounts. Holmes’s most important opinions dealing with First Amendment were impelled by an idiosyncratic idea of manliness, and in particular, a view of manliness that was derived from his account of martial heroism. He argued that only a manly people who embraced his own brand of heroism could endure the frightening consequences that would be ushered by the political freedom protected by the First Amendment. Only such a heroic people, that is, could tolerate conditions where communists, anarchists, and other subversives threatened to destroy the United States.
Dang states
Practically a convention of legal scholarship, Oliver Wendell Holmes, Jr. has been praised as America’s greatest judge. There are several reasons for the honorific but chief among them is the acclaim which Holmes has received as the person who did more than anyone else to breathe life into the Constitution’s venerable right of speech. Ahead of his time by decades, Holmes had penned dissenting opinions which would powerfully influence future generations of jurists and lawyers. It is indeed de rigueur among professors of constitutional law and federal judges to suggest that the scope of the First Amendment owes its conspicuous expansion over the last 60 or so years to Holmes’s judicial dissents, then mostly unpopular, in the early 20th century. 
Holmes’s dissents were not only noteworthy for their influence but also for the elegant suggestiveness of their rhetoric. So suggestive was it that scholars have been tempted to speculate that Holmes’s judicial outlook was actually animated by some formal political theory. Observers have ascribed to Holmes the status of a Social Darwinist, an unembarrassed advocate for the axiom that might makes right; others have insisted that he was a liberal progressive with an abiding sympathy for political underdogs. 
Neither perspective, I will show, is persuasive. Notwithstanding his own stature as a political figure, Holmes, in his later years, came to possess an aristocratic indifference to political doctrine, and, as a judge, he preferred a scholar’s attitude of disengaged observation. The origins of Holmes’s judicial worldview were rooted essentially in the stuff of personal experience. To forward this thesis is not novel; other scholars have done so. Yet these scholars have tended to focus on how Holmes was influenced in his sixties by an energetic circle of critics and young intellectual friends who had goaded him to protect the voices of the most loathsome members of society. In contrast, I will argue that Holmes’s judicial views on the First Amendment were principally influenced by his obsession with manliness and, in particular, its foremost virtue of physical courage. It was an obsession that was essentially unreconstructed, one that would find its highest gratification in his experience as a combat soldier in the Civil War. 
It should be said at the outset, though, that this Article is more than an exploration into Holmes’s mentality, something that will be of interest to Holmes scholars but might be of only passing interest to others. The Article has more universal aims: It seeks to show how Holmes’s justification for the right of speech was in fact a bid to proffer a philosophical commentary about the demands of democracy. In essence, Holmes folded into his judicial dissent a lesson about civic responsibility. Drawing from his experiences as a soldier, Holmes urged his audience to embrace physical courage, which in his mind was nearly synonymous with manliness, as a prerequisite for self-government. 
This is not to imply that Holmes sought to exclude women from membership in the polity Far from it. Notwithstanding his avowed homage to the glories of manliness, the logic of his dissenting opinions inexorably expected all Americans, irrespective of gender, to tolerate frightening creeds of communism that foreboded mass violence. Eschewing the tiresome tropes of chivalry, Holmes flatly refused to exempt women from the perils of constitutional democracy. Women were in effect expected by Holmes to summon the courage — the manliness, if you will — that was expected of their male counterparts. Moreover, unlike most men of his time, Holmes enthusiastically embraced women as intellectual partners. Therefore, if the contemporary reader finds morally problematic the proposition that manliness, in all its gendered ungainliness, can be enlisted as a civic virtue, she or he would do well to consult the entirety of Holmes’s actions and words, a dollop of which I intend to serve up. 
The Article is organized as follows. In Part II, I take up the provocative and now popular narrative by scholars that Holmes’s celebrated support for the First Amendment was in reality the unseen handiwork of his admirers and detractors, both of whom had offered him copious advice about what he should do differently in future cases before the Supreme Court. Holmes was the one who put pen to paper but it was these interested others, the revisionist story goes, who had supplied him with the substance of his words. However, I show in Part II that a close examination of Holmes’s judicial opinions reveals that his arguments do not reflect the views of his purported influencers. What Holmes drew from as a jurist, Part II will suggest, were the moral lessons about manliness, and specifically, manly courage, that he had gleaned from the ordeals and triumphs he had experienced as a combat soldier in the Civil War. 
We begin in Part III to chart some of the adolescent origins of Holmes’s manliness. Part III dwells mainly on a young Oliver Wendell Holmes as an undergraduate at Harvard College. It was at Harvard that Holmes started to reveal with demonstrative clarity a callow but stubborn manliness whose two constituent properties of independence of thought and a fondness for physical danger would come to form a basic foundation of his judicial philosophy. Part IV follows a 23-year-old Holmes into battle, as he quits Harvard to fight for the North in the Civil War. Thrice wounded, once nearly dying, Holmes deepened his insights about manliness by testing it with almost fatal intensity in the baptism of combat. Chief among these insights was the notion of keeping faith in one’s courage in the face of horror and hopelessness. 
Part V explains how Holmes, decades later, as a Supreme Court Justice, would enlist this outwardly martial manliness for the orderly ends of civil society. Rather than mining the standard (and well-worn) justifications for the right of speech as a means to discover truth, Holmes argued that the right of speech was vital to instill in Americans, regardless of their gender, the virtue of manliness. For Holmes felt ardently that constitutional democracy logically required a people to steel themselves to tolerate speech that was menacing to public safety, speech that threatened to destroy the federal government and foment violent pandemonium. In other words, as Part V elaborates, Holmes believed that constitutional democracy required of its citizens that they comport themselves with what he styled manliness. Part VI revisits Holmes’s landmark dissents in Abrams v. United States  and Gitlow v. New York and explains in detail how his dissenting opinions in both cases evinced a theory of manliness which I had fashioned in Parts IV and V. In the course of doing so, Part VI also clarifies how scholars have tended to misread these dissents as standard liberal Enlightenment arguments that had been championed to immortal fanfare by English philosophers such as the 17th-century John Milton and the 19th- century John Stuart Mill. Holmes’s contributions, Part VI will show, were very much his own.

Fertility

'Frozen in perpetuity: ‘abandoned embryos’ in Canada' by Alana Catalan in (2016) 1 Reproductive BioMedicine and Society (2016) 1 comments
The matter of ‘abandoned embryos’ arises when surplus IVF embryos are frozen and stored for later use. If the fertilityclinic or storage facility in question does not have clear direction about what to do with these embryos, and/or payment for storage ceases, and/or the embryo providers cannot be reached, the embryos raise an ethical and practical challenge. On the one hand, there is a commitment to respect the autonomy of embryo providers to determine what should happen to their frozen embryos. On the other hand, there are weighty reasons why fertility clinics and storage facilities do not want responsibility, potentially in perpetuity, for other people’s frozen embryos. This article examines the matter of ‘abandoned embryos’ – the emergence of the term, its use in policy and law, and its implications in the Canadian case. We demonstrate that despite an intricate legislative framework, there are important gaps that leave fertility clinics and storage facilities in the tenuous position of discarding ‘abandoned embryos’ without clear authorization, or storing them indefinitely. We argue that clarity in consent procedures coupled with flexible time limits on embryo storage provide an approach that can best serve the interests of all involved.
Catalan notes that
On 30 November 2012, the British Columbia Women’s Centre for Reproductive Health ceased operations. At the time, the Centre had frozen human sperm and embryos in storage formore than 1200 people. While preparing to close its doors and afterwards, staff at the Centre tried to contact all persons with sperm and embryos in storage to ascertain their wishes regarding transfer to another fertility clinic ordiscard. The staff made hundreds of telephone calls, sent letters by registered mail, issued second mailings to alternate addresses for letters that were returned to sender, and hired a skip tracer to track individuals. The Centre also petitioned the British Columbia Supreme Court for an order permitting the sperm and embryos in storage to be discarded. A Court order was granted validating the Centre’s authority to discard the frozen sperm and embryos (Lam v University of British Columbia 2013 BCSC 2142). With this decision in hand, the staff made a final effort to reach those with sperm or embryos in storage in order to be able to act on their wishes, and then discarded what materials remained.
The uncertainty experienced by the British Columbia Women’s Centre for Reproductive Health about what to do with the sperm and embryos stored in their fertility clinic was unique because of the circumstances precipitating decision-making – namely, closure of the clinic. In important respects, however, this uncertainty is commonly experienced by fertility clinics and storage facilities in jurisdictions without legislated time limits, as they struggle to understand the scope of their obligations regarding what have been described as ‘orphaned embryos’ or more commonly ‘abandoned embryos’. These are embryos placed in storage by people who are now ‘lost to follow-up’ – people who have completed or dropped out of fertility treatment, stopped paying storage fees, and are not able to be contacted by the clinic or storage facility to confirm or provide wishes regarding the future use or discard of frozen embryos no longer wanted for ‘own’ reproductive use.
In the literature, a range of terms is used to describe various options for using or discarding embryos. For example, the term ‘disposition’ is often used to refer to options that include both using embryos and discarding them. ‘Transfer’ often refers to making use of embryos for one’s own reproductive purposes, or the reproductive purposes of others, but can also refer to donation to research. Embryos being discarded are often described in terms of ‘destruction’ or ‘disposal.’ For clarity, we differentiate between ways of ‘using’ embryos (which include own reproductive use, third-party reproductive use, improving assisted reproduction procedures, providing instruction in assisted reproduction procedures, and research) and ‘discarding’ embryos when no such use is to occur before the embryos are destroyed.
This article proceeds in four parts. First, we provide a history of how the term ‘abandoned embryos’ came into common parlance and identify its contemporary scope, focusing on the Canadian case. Although the term rarely appears in official public policy or law, it continues to be used by professional medical associations (ASRM, 2013; O’Neill and Blackmer, 2015), in popular media (Blackwell, 2013; Kirkey, 2013) and by clinicians (Elford et al., 2004) in Canada, the United States, the United Kingdom, and elsewhere. Second, we trace the introduction of the current regulatory framework in Canada governing embryo use. We show how this framework anticipates the need for clear directives for the future use of embryos in storage, but does not include any provisions for discarding unused embryos. Third, we briefly review Canadian case law relevant to the question of how ‘abandoned embryos’ should be handled. Finally, we conclude that legally valid written instructions in consent forms regarding the use or discard of frozen embryos should be respected (i.e. acted upon), and that those instructions should be constrained by clear legislated time limits on embryo storage. In jurisdictions that do not have a legislated limit on embryo storage, this approach can best serve the interests of all concerned parties – persons with embryos in storage, fertility clinics and storage facilities.

Essentialism

'Institutionalizing Essentialism: Mechanisms of Intersectional Subordination Within the LGBT Movement' by Gwendolyn Leachman in (2016) Wisconsin Law Review 655 comments
Intersectionality scholars have long argued that the dominant legal interpretations of discrimination — as unidimensional bias based on separable axes of stigmatized identity — have become inscribed in the discourse and political agendas of the most prominent contemporary movements for equality. Drawing on the critical race theory (CRT) view of legal institutions as a tool of racial subordination, these scholars have shown how movements against racism, patriarchy, and homophobia have shoehorned broad-based struggles for social change into rights claims that conceptualize racial, gender, and sexual identities as uniform and monolithic categories of shared experience. Movement activists, hungry for change, have seized upon single-axis identity narratives, which offer both an ingrained political resonance and a legally legible framework with the potential to garner formal recognition. In so doing, these movements obscure the unique forms of oppression that occur at the intersections of these categories, perpetuating inequality among multiply subordinated individuals. 
In this Article, I draw on the institutional research in sociology to suggest a series of structural dynamics that may further explain the persistence of essentialism in LGBT civil rights agendas and the agendas of similar civil rights movements. Instead of characterizing the marginalization of intersectionally subordinated groups like queers of color as the result of insensitive or strategic decisions made by individual movement leaders, I emphasize the institutional and organizational processes that reinforce patterns of intramovement marginalization. Attributing intersectional subordination to leadership failures, I argue, inaccurately depicts the problem as highly contingent rather than systematic and obscures the structural forces at work. Using specific examples from the context of the LGBT movement, I show how an institutional approach would contribute to current understandings of fundamental aspects of intersectionality theory, including the mechanisms that enable essentialist identity narratives to dominate social movements; how a movement’s institutional context shapes activists’ strategic behavior; and the opportunities for agency that exist for movement actors who hope to create alternative and more intersectionally inclusive movement agendas. I argue that the sociological literature, in addition to adding greater analytical depth to theories of intersectionality, would help to align antiessentialist critiques of identity movements with broader critical race understandings of structural racism.

Confidentiality

In TICA Default Tenancy Control Pty Ltd v Datakatch Pty Ltd [2016] FCA 815 the Federal Court of Australia has dismissed TICA's copyright infringement claim against its former employees for copying system code related to a website service. The FCA however held that the respondents were liable for the use of confidential information they acquired from working with the applicant.

Perram J states
For many years now Mr Philip Nounnis has conducted a business providing information to interested persons about tenants, such as whether they have defaulted on prior leases and what applications for previous tenancies they have made. This business has been conducted by him through various corporate entities, the most recent of which is, and has been since 1999, the present applicant (‘TICA’).
TICA’s business is conducted online via a website, and is provided to members who pay a yearly fee. Most of these members are real estate agencies. The service is also provided to members of the public who pay a one-off fee.
This case is chiefly about the software and databases which together underpin and constitute TICA’s website service. The claim is one of industrial theft. In the period between 26 March 2014 and 21 August 2014, three of TICA’s staff departed its employ. The first of these was Mr Anthony Nounnis, the son of Mr Philip Nounnis. Mr Nounnis Jnr was, at most material times, a director of TICA and was, on his evidence, ‘involved in all aspects of its business’. He departed TICA on or around 26 March 2014 following an irretrievable breakdown in the relationship with his father.
The second was Mr Nathan Portelli, who commenced working for TICA in September 2011 as a sales manager. He resigned on 11 August 2014. The third former employee is Mr Reginald Joshua. He had two periods of engagement at TICA. The first was between around mid-1998 and 2003 (although for an early part of this period he was employed by one of TICA’s corporate predecessors, Tenancy Information Centre Australasia Holdings Pty Ltd). Mr Nounnis Snr says that Mr Joshua was hired at this time as the general manager of the business. In 2003, Mr Joshua left TICA, but he returned to it in 2009 although not, this time, as its employed general manager but instead as a contractor with a similar function on a full time basis. One issue which arises later in these reasons concerns Mr Joshua’s level of expertise as a computer programmer. For that purpose, it is useful to know that he studied for a Bachelor of Commerce for five years at the University of Western Sydney, majoring in Computer Information Systems but did not complete the degree because he left in his final year to set up his own business. Also relevant in that regard is his evidence that in the interregnum between 2003 and 2009, when he was not employed in Mr Nounnis Snr’s businesses, he acquired a detailed understanding of software programming, including code such as PHP (which features later in these reasons). Mr Joshua’s engagement as general manager was terminated by Mr Nounnis Snr on 21 August 2014 because Mr Nounnis Snr no longer trusted him.
Not long after, on 18 September 2014, a company called Datakatch Pty Ltd (‘Datakatch’) was incorporated. The shareholders were Mrs Elesha Nounnis (Mr Nounnis Jnr’s wife), Mr Joshua and Mr Portelli. Mr Joshua was the sole director and secretary.
Each of Datakatch, Mr Nounnis Jnr, Mr Joshua and Mr Portelli is a respondent to the current suit. The role of the fifth respondent, Datakatch International Pty Ltd, was not substantially explained in the evidence.
It is not in dispute that after September 2014, Datakatch took steps to develop a tenancy information business of its own under the name Datakatch. According to Mr Nounnis Jnr, he and Mr Joshua worked closely together to design the ‘look and feel’ of the Datakatch system in the period between September and November 2014, working apparently every day for three months. Mr Joshua was said to have done the computer programming, whilst Mr Nounnis Jnr had assisted with the design of the user interface.
The primary dispute between the parties is this: TICA alleges that Datakatch’s ‘system’ has been copied by it from TICA’s own system. Datakatch says this is not so and that the Datakatch system was written by Mr Joshua. The way the case is put, each of Mr Joshua, Mr Nounnis Jnr, Mr Portelli and Datakatch itself are said either to have done the copying or to have been involved in it.
This alleged copying by Datakatch is alleged to have involved both an infringement of the copyright owned by TICA in the TICA system, and also a misuse of its confidential information. In final address, it was accepted by Mr Smark SC, who appeared for TICA, that the confidential information claim was a subset of the copyright infringement case, at least at a factual level. The respondents’ primary defence was that there had been no copying by Datakatch or any other respondent of the TICA system, which had been written by Mr Joshua with Mr Nounnis Jnr. There was thus no infringement of copyright, and no taking of confidential information. Alternatively, the respondents denied that TICA owned the copyright in the TICA system. This contention turned largely on the identity of the employer of the author of the TICA system, an independent computer programmer, Mr Michael McCoy. This issue was complicated by the fact that the TICA system had been written over an extended period of time, and was subject to frequent revision. It was further complicated because the business being conducted by Mr Nounnis Snr was manifested through several corporate entities, because Mr Nounnis Snr was bankrupt for some of the time, and because some effort seems to have been made to keep the TICA system, qua asset, away from potential claims by creditors.
So far as the confidential information case was concerned the respondents did not accept that each element of the information relied upon was in fact ‘owned’ by TICA. In relation to some of it, the respondents submitted that it had been obtained by them quite legitimately, and certainly not from TICA.
A final part of the case turned upon allegations that Mr Joshua and Mr Nounnis Jnr had breached various duties owed to TICA, arising from their positions at it, by copying the TICA system. Essentially, this was a rehearsal of the arguments just described. There was, however, a distinct variant of it. This variant turned upon a letter signed on TICA’s behalf by Mr Nounnis Jnr which granted Mr Joshua permission to work for other clients apart from TICA. The letter was dated 10 May 2012. It had been apparently prepared by Mr Joshua for Mr Nounnis Jnr’s signature. This was alleged by TICA to have involved a breach of fiduciary duty to the extent that it authorised Mr Joshua to set up Datakatch. The respondents denied that this was the effect of the letter.

Defamation

In Northern Ireland the Government has published the report by Andrew Scott on the Review of the Law of Defamation, initiated by the Law Commission.

The report summarises responses to a public consultation and proposes legislative reforms, following calls for changes to the law of defamation in England, Scotland and Wales in 2013 to be extended to Northern Ireland. Those changes included replacing certain common law‎ defences with statutory defences, introducing a new defence for website operators, and introducing a requirement to show serious harm or the likelihood of such harm when an individual brings an action for defamation.

The report argues that there is no requirement in domestic or international human rights law to amend the NI regime but offers two draft Bills. One essentially replicates the 2013 Act; the other draws on and adds to provisions in that statute. Scott highlights the need to consider procedural arrangements with a view to minimising costs and ensuring access to justice.

The report states
In September 2013, the NI Law Commission (NILC) was asked by the Minister of Finance and Personnel to carry out a study of the law of defamation. The NILC undertook the first parts of that study and published a consultation document in November 2014. The consultation period closed on 20 February 2015. The NILC itself closed on 31 March 2015. 
The research undertaken by the NILC substantiated the perception that the law of defamation wrongly restricts the proper exercise of freedom of expression in Northern Ireland. It also highlighted problems of cost and access to justice as key concerns that “cut both ways”. Harms to reputation caused by false publications are often left unremedied. 
In England and Wales, the Defamation Act 2013 was introduced in the hope of addressing similar concerns. It comprises an important step forward, but arguably does not yet provide a regime for the resolution of disputes that might adequately triangulate the individual and social interests in reputation and free speech. 
The aim of this report is to build on the work of the NILC, to draw on the consultation responses that it received, to assess the recent experience of the law of defamation in England and Wales under the Defamation Act 2013, and on these bases to set out recommendations for reform of the law of defamation in Northern Ireland. 
The key principles underpinning the report are that:
– defamation law must provide a proper balance between individual rights to reputation (Art 8 ECHR) and to freedom of expression (Art 10 ECHR), and promote effective access to justice for all parties (Art 6 ECHR). 
– defamation law must recognise the importance of societal interests in the openness of public communications and the accuracy of reputational information. 
– defamation law must encourage the efficient, inexpensive and prompt resolution of disputes regarding statements that have been published, limiting any need to revert to court as far as is possible. 
– defamation law must be comprehensible to members of the public and to any prospective litigant. 
– defamation law should focus responsibility, and potential liability, for statements that have been published primarily on the authors, editors and publishers of those statements.
Recommendations 
In line with these principles, the Report makes a series of recommendations regarding the reform of defamation law in Northern Ireland. Of these, most would require legislative action by the Northern Ireland Assembly. A draft Bill comprising all of the recommended reforms is included as Appendix 1 to the Report. A second draft Bill that would merely emulate the Defamation Act 2013 in Northern Irish law is included as Appendix 2. Some recommended changes could be given effect through the review of civil justice currently being undertaken by Lord Justice Gillen. 
The Report recommends that, to a significant extent, measures equivalent to the provisions of the Defamation Act 2013 should be introduced into Northern Irish law. Specifically, this includes strong recommendations that the following provisions should be emulated (with consequential changes reflecting the shift in jurisdiction): 
– Section 2: defence of truth [see paras 2.09-2.16]. 
– Section 4: defence of publication on a matter of public interest [see paras 2.39-2.42]. 
– Section 6: qualified privilege for peer-reviewed scientific or academic statements [see paras 2.46- 2.47]. 
– Section 7: extension of existing qualified privileges [see paras 2.48-2.49]. 
– Section 8: single publication rule [see paras 2.108-2.110]. 
– Section 12: power of court to order publication of summary of judgment [see paras 2.123-2.125]. 
– Section 13: power of court to order take-down of statements [see paras 2.123-2.125]. 
– Section 14: updating of the law of slander [see paras 2.104-2.106]. 
The Report also recommends that the following provisions of the Defamation Act 2013 should be emulated (with consequential changes reflecting the shift in jurisdiction), although in each of these cases it is considered that the argument for introduction of the given provision is less compelling:
– Section 1: serious harm test [see paras 2.85-2.103]. 
– Section 9: action against a person not domiciled in the UK or a Member State [see paras 2.111- 2.115]. 
– Section 11: presumption in favour of trial by judge alone [see paras 2.116-2.122]. 
The Report recommends that a new defence of honest opinion, similar to section 3 of the Defamation Act 2013, should be introduced by the Northern Ireland Assembly [see paras 2.17-2.38]. It proposes, however, that - relative to the English variant - this defence should be augmented in three ways: 
– first, it should be possible for a publisher to rely on privileged statements that were published either before or “at the same time as” the opinion. This proposal corrects a drafting error in the 2013 Act [see paras 2.35-2.36]. 
– secondly, it should be possible for a publisher to rely not only on true underpinning facts or privileged statements as the basis for his or her opinion, but also on “facts” that he or she “reasonably believed to be true at the time the opinion was published”. This expands the defence, especially so as to defend the position of social media commentators [see paras 2.28-2.34]. 
– thirdly, it is recommended that it be made clear that the defence extends to cover “inferences of verifiable fact”. This is intended to clarify an aspect of the defence that is agreed to be the current law by many legal commentators, but on which there remains a measure of uncertainty in English law [see paras 2.25-2.27]. 
The aim behind these revisions is to ensure that the honest opinion defence delivers on its promise of significant protection for freedom of expression. 
The Report recommends that the jurisdictional exclusion relating to secondary publishers (intermediaries) found in section 10 of the Defamation Act 2013 should not be introduced in its current form. Rather, that exclusion should be extended so as to prevent any defamation claim being brought against a person other than the primary author, editor or publisher of a statement [see paras 2.50-2.84]. This reform would absolve (online) intermediaries from potential liability. This recommendation entails that no equivalent to the defence for website operators found in section 5 of the Defamation Act 2013 need be introduced into Northern Irish law, and that existing defences for intermediaries can be repealed. It is acknowledged that reputations are exceedingly vulnerable in the online environment. It is considered, however, that sufficient alternative avenues for the protection of reputations exist that would deliver prompt and efficacious solutions for plaintiffs. 
The Report recommends the introduction of a further bipartite reform: the abolition of the common law “single meaning rule” and the introduction of a jurisdictional bar to claims on capable meanings that have been retracted or corrected by a publisher promptly and prominently [see chapter 3]. This combined reform is intended to encourage the swift resolution of disputes generated by ambiguous publications, to secure the correction or retraction of unintended slights on reputation, to obviate the risk of liability for publishers in very many cases, and substantially to reduce the cost of bringing a defamation claim to court for determination. This proposed reform is also intended to make defamation law more comprehensible to the wider public. 
The Report notes the potential desirability of a range of further procedural reforms that would reduce cost and enhance access to justice in this context. It recommends that these options should be considered fully during the review of civil justice that is currently being undertaken by Lord Justice Gillen [see chapter 4].

19 July 2016

Indigenous Intangibles

The Aboriginal Heritage Amendment Act 2016 (Vic) provides for wide-ranging protection of Indigenous 'intangibles'. It is of interest to scholars of constitutional, intellectual property, confidentiality, Indigenous and other law.

Under s 79B for the purposes of the Act
(1) Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public. 
(2) Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).
Section 79D deals with Aboriginal intangible heritage agreements
(1) For the purposes of this Act, an Aboriginal intangible heritage agreement is an agreement relating to registered Aboriginal intangible heritage made between any person or body and— (a) a registered Aboriginal party; or (b) a registered native title holder; or (c) a traditional owner group entity. 
(2) An Aboriginal intangible heritage agreement may deal with any of the following— (a) the management, protection or conservation of Aboriginal intangible heritage; (b) the research or publication of Aboriginal intangible heritage; (c) the development or commercial use of Aboriginal intangible heritage; (d) the rights of traditional owners to use and commercially exploit Aboriginal intangible heritage, including anything produced from the research and development of Aboriginal intangible heritage; (e) the compensation to be paid to traditional owners for the research, development and commercial use of Aboriginal intangible heritage. 
(3) An Aboriginal intangible heritage agreement cannot deal with any activity for which a cultural heritage permit or cultural heritage management plan is required under this Act. 
(4) An Aboriginal intangible heritage agreement has effect as an agreement under seal.
Under s  79E (Form of Aboriginal intangible heritage agreement)
An Aboriginal intangible heritage agreement must be in the prescribed form and include the following information— (a) the parties to the Aboriginal intangible heritage agreement and the period for which the agreement applies; (b) a description of the Aboriginal intangible heritage to which the agreement relates; (c) any other information the registered Aboriginal party, registered native title holder or traditional owner group entity reasonably considers necessary.
79F deals with Registration of Aboriginal intangible heritage agreements
(1) After entering into an Aboriginal intangible heritage agreement, the parties to the agreement must, without delay, give a copy of the agreement to the Secretary for recording on the Register. 
(2) The parties to an Aboriginal intangible heritage agreement must, without delay, notify the Secretary in writing of any amendment to or termination of the agreement.
Under s 79G it is an offence to use registered Aboriginal intangible heritage for commercial purposes
(1) A person must not knowingly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity. 
Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 10 000 penalty units. 
(2) A person must not recklessly use any registered Aboriginal intangible heritage for commercial purposes without the consent of the relevant registered Aboriginal party, registered native title holder or traditional owner group entity. 
Penalty: In the case of a natural person, 1200 penalty units; In the case of a body corporate, 6000 penalty units. (3) This section does not apply to any Aboriginal intangible heritage that is the subject of a registered Aboriginal intangible heritage agreement. Note Section 187A applies to an offence against subsection (1) or (2).
Under s 79H it is an offence to fail to comply with a registered Aboriginal intangible heritage agreement
(1) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party knew that the act failed to comply with the conditions of the agreement. 
(2) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (1) is liable to a penalty not exceeding— (a) in the case of a natural person, 600 penalty units; (b) in the case of a body corporate, 3000 penalty units. 
(3) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party was reckless as to whether the act failed to comply with the conditions of the agreement. 
(4) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (3) is liable to a penalty not exceeding—  (a) in the case of a natural person, 300 penalty units; (b) in the case of a body corporate, 1500 penalty units. 
(5) A party to a registered Aboriginal intangible heritage agreement is guilty of an offence if— (a) the party does an act that fails to comply with the conditions of the Aboriginal intangible heritage agreement; and (b) at the time of doing the act the party was negligent as to whether the act failed to comply with the conditions of the agreement. 
(6) A party to a registered Aboriginal intangible heritage agreement who is guilty of an offence under subsection (5) is liable to a penalty not exceeding— (a) in the case of a natural person, 60 penalty units; (b) in the case of a body corporate, 300 penalty units.
The Explanatory Memorandum comments
It is intended that Aboriginal intangible heritage is owned collectively by traditional owners of the area, region or culture from where it is reasonably believed that intangible heritage originates. For the purposes of the Principal Act, it is not intended for individuals to own Aboriginal intangible heritage. 
Clause 9 inserts a new section 12(2). This defines "own" to include collective ownership and custodianship as understood by traditional owners in accordance with Aboriginal tradition. This is intended to better accommodate such notions of ownership as understood under some Aboriginal traditions. ... 
Clause 12 inserts a requirement for public entities and universities which may hold Aboriginal ancestral remains to examine their holdings and report on any collections to the Victorian Aboriginal Heritage Council within two years of the commencement of the section. It will be an offence not to comply, with a penalty of 3000 penalty units. Once reported upon, the institution must take steps to transfer the collection to the Victorian Aboriginal Heritage Council as soon as practicable. .... 
Clause 20 inserts new sections 21A and 21B, after section 21 of the Principal Act. Section 21A clarifies the intent that secret and sacred Aboriginal objects are no longer able to be lawfully owned by individuals or State entities other than in accordance with Aboriginal tradition. People in possession of secret or sacred Aboriginal objects on the commencement of the section must transfer these objects to the Victorian Aboriginal Heritage Council as soon as practicable. 
The provision creates an offence of failing to transfer secret or sacred objects to the Victorian Aboriginal Heritage Council as soon as practicable after the commencement of the section. The intent is to encourage compliance. 
The intent of section 21B is that secret or sacred Aboriginal objects are to be treated similarly as Aboriginal ancestral remains by the Principal Act. The Council is required to follow the same procedures as for Aboriginal ancestral remains once it receives secret or sacred objects. 
Clause 21 amends section 23 of the Principal Act and clarifies that "traditional owners" hold primacy in negotiating the return of secret or sacred objects. .... 
New section 79D provides Aboriginal intangible heritage agreements. It is the intention of the provision that a person or body may make an agreement with a relevant traditional owner group covering the management, protection, conservation, research, publication, development, commercial use, and compensation to be paid to the relevant traditional owner group for the above. Traditional owner use of the intangible heritage and anything produced from the research and development of that Aboriginal intangible heritage may also be covered by such agreements. 
Aboriginal intangible heritage agreements cannot deal with any matter for which a cultural heritage permit or cultural heritage management plan is required under the Act. 
New section 79E establishes a prescribed form for an Aboriginal intangible heritage agreement. 
New section 79F establishes the requirement to register the agreement with the Secretary and to notify the Secretary of any amendment or the termination of the agreement. This is intended to facilitate the accuracy of information on the Victorian Aboriginal Heritage Register. It is intended to protect Aboriginal intangible heritage which is registered on the Victorian Aboriginal Heritage Register from unauthorised commercial use. New section 79G creates an offence, with two levels of mental culpability, intended to prevent this from occurring. New section 79H makes it an offence, with three levels of mental culpability, for a party to an Aboriginal intangible heritage agreement to fail to comply with the agreement. This is intended to encourage compliance and deter breaches of the agreement.
The 2nd Reading Speech in the Lower House states, in part
There is an increasing global focus on protecting Indigenous peoples' vulnerable intangible cultural heritage. The bill places Victoria at the cutting edge in Australia in this area. 
Victoria's rich Aboriginal culture has significantly shaped our values and traditions — from our music, art and stories to environmental management practices and even the development of Australian Rules football. The influence of Aboriginal culture on Victorian society has not been properly acknowledged in our past, and it is important we recognise its value in the future. 
Aboriginal intangible heritage is not protected adequately by current intellectual property laws, patent laws or copyright laws. Stories, songs, dances, language, manufacturing techniques and knowledge about the properties and management of plants and animals are central to traditional owner culture and wellbeing, and deserve proper statutory protection as part of the cultural heritage of Victorian traditional owners. 
The bill provides a process for registered Aboriginal parties and other eligible traditional owner organisations to nominate particular intangible heritage for registration. Once registered, anyone wishing to use that intangible heritage for their own purposes will require a formal agreement with the relevant traditional owner organisation. 
The revolutionary Aboriginal intangible heritage amendments in the bill will create new opportunities for economically beneficial partnerships between Aboriginal people and industry, promote new Aboriginal industries and advance reconciliation and self-determination. This will significantly increase respect for Aboriginal culture and traditional knowledge and provide opportunities for it to be appropriately shared and celebrated. It will finally place traditional owners in the driving seat and able to control how their traditional knowledge is used by the broader community and industry.
Perspectives are provided in Matthew Rimmer (ed), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar, 2015).