25 August 2017

Intellectual Property Reform

The Australian Government has released its response to the Productivity Commission's recommendations regarding intellectual property reform.

In essence, the Government has deferred several of the tougher decisions. The recommendations and responses are as follows
Recommendation 2.1 In formulating intellectual property policy, the Australian Government should be informed by a robust evidence base and be guided by the principles of:
• effectiveness, which balances providing protection to encourage additional innovation (which would not have otherwise occurred) and allowing ideas to be disseminated widely
• efficiency, which balances returns to innovators and to the wider community
• adaptability, which balances providing policy certainty and having a system that is agile in response to change
• accountability, which balances the cost of collecting and analysing policy–relevant information against the benefits of having transparent and evidence–based policy that considers community wellbeing. 
The Government supports this recommendation. The Government wishes to ensure that the intellectual property (IP) system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services. The Government is committed to evidence-based policy making and believes that these guiding principles will provide a useful framework for the on-going assessment of the IP system and for future development of IP policy. These principles encompass key economic factors while recognising the importance of balancing the interests of innovators, investors and creators with the health, economic and social welfare of consumers and Australian society as a whole. The principles complement the Government’s principles of Best Practice Regulation, which include a Regulation Impact Statement process that requires the assessment of economic, social and environmental costs and benefits to business and the community in determining the net benefit of a regulatory proposal. The IP Policy Group (see recommendation 17.1) has included these principles into its Terms of Reference.

Recommendation 5.1 The Australian Government should amend the Copyright Act 1968 (Cth) to:
• make unenforceable any part of an agreement restricting or preventing a use of copyright material that is permitted by a copyright exception
• permit consumers to circumvent technological protection measures for legitimate uses of copyright material. 
The Government supports in principle this recommendation. The Government recognises the inefficiencies and uncertainty that can arise from agreements which seek to exclude or restrict legal copyright exceptions and wants to ensure that statutory rights to fairly deal with copyright material are protected. As outlined by the Productivity Commission, a move to restrict contracting out of exceptions is likely to have little effect if technological protection measures (TPMs) are unilaterally used to override exceptions. In line with our trade obligations, section 249 of the Copyright Act sets out a process for determining exceptions to protection under the Act for circumvention of TPMs. As part of its review of the Copyright Regulations 1969 in the second half of 2017, the Government will review whether new TPM exceptions should be created to prescribe particular legitimate uses of copyright material, where they fall within the requirements of that section. The Government will also implement a simplified process for future TPM exception reviews to ensure that it can more quickly respond to the needs of stakeholders seeking TPM exceptions and reduce the burden of the review process on all stakeholders. Following the review of the Copyright Regulations, the Government will also consult on how best to implement the first part of this recommendation in the Copyright Act in line with reforms to the copyright exceptions. 
Recommendation 5.2 The Australian Government should:
• amend the Copyright Act 1968 (Cth) to make clear that it is not an infringement for consumers to circumvent geoblocking technology, as recommended in the House of Representatives Standing Committee on Infrastructure and Communications’ report At What Cost? IT pricing and the Australia tax
• avoid any international agreements that would prevent or ban consumers from circumventing geoblocking technology. 
The Government notes this recommendation. The Government supports the ability for Australian consumers to affordably access copyright content in a timely manner, noting that this is a key factor in preventing copyright infringement. In line with recommendation 5.1, the Government is open to considering whether new TPM exceptions could be created to prescribe particular uses of copyright material prevented by geoblocking, where they fall within the requirements of the Copyright Act. Section 249 of the Copyright Act sets out a process for determining exceptions to protection under the Act for circumvention of TPMs. The Government will review whether new TPM exceptions should be created to prescribe particular uses of copyright material prevented by geoblocking, where they fall within the requirements of that section. 
The Government will also implement a simplified process for considering TPM exception requests to ensure that it can more quickly respond to the needs of stakeholders seeking TPM exceptions. However, the Government notes that other measures, such as terms and conditions under consumer contracts and/or regulatory arrangements in jurisdictions outside Australia would continue to govern the circumvention of geoblocking technology. Geoblocking also spans a wide variety of technologies, some of which may and some of which may not, be captured by the TPM regime in the Copyright Act. The Government has robust arrangements in place to ensure that domestic policies are considered in international agreement negotiations and implementation. As noted in the Government’s response to Recommendation 17.2, the enhanced coordination of policy priorities and interests through the IP Policy Group will further complement and facilitate these arrangements.
Recommendation 5.3 The Australian Government should proceed to repeal parallel import restrictions for books to take effect no later than the end of 2017.   
The Government supports in principle this recommendation. As part of the Intergovernmental Agreement on Competition and Productivity-Enhancing Reforms, the Government has recently committed to ensuring that regulatory frameworks and government policies binding the public or private sectors do not unnecessarily restrict competition. Consistent with this commitment, the Government will consult with the book industry to develop a reform pathway that is in the public interest. 
Recommendation 5.4 The Australian Government should strengthen the governance and transparency arrangements for collecting societies. In particular: • The Australian Competition and Consumer Commission should undertake a review of the current code, assessing its efficacy in balancing the interests of copyright collecting societies and licensees. • The review should consider whether the current voluntary code: represents best practice, contains sufficient monitoring and review mechanisms, and if the code should be mandatory for all collecting societies. 
The Government supports this recommendation. The Government supports a review of the voluntary code for collecting societies to ensure it remains the best mechanism to promote efficient, effective and transparent administration of copyright licences. The Government considers the Department of the Communications and the Arts is best placed to undertake such a review, in close consultation with the Australian Competition and Consumer Commission.   The Department of Communications and the Arts will also continue to consider the efficiency and effectiveness of statutory licences for educational and government use of copyright material and how collecting societies administer these licences. 
Recommendation 6.1 The Australian Government should accept and implement the Australian Law Reform Commission’s final recommendations regarding a fair use exception in Australia. 
The Government notes this recommendation and will further consult. The Government’s aim is to create a modernised copyright exceptions framework that keeps pace with technological advances and is flexible to adapt to future changes. There are arguments that Australia’s current exceptions for fair dealing are restrictive when compared with international counterparts and may not permit some reasonable fair uses of copyright material. However, this is a complex issue and there are different approaches available to address it. The Government will publicly consult on more flexible copyright exceptions. Consultation will occur in early 2018 following the finalisation of other copyright reform priorities, such as the Government’s review of the Copyright Regulations, and the Collecting Societies’ Voluntary Code of Conduct, and will align with the Government’s consideration of how best to implement recommendations 5.1 and 6.2. This timeframe will also provide adequate time to properly consider the complexities of possible changes, and gather more detailed information on the regulatory impact of any changes. 
Recommendation 6.2 The Australian Government should enact the Australian Law Reform Commission recommendations to limit liability for the use of orphan works, where a user has undertaken a diligent search to locate the relevant rights holder.   
The Government supports this recommendation. The Government recognises the difficulties both creators and cultural and collecting institutions face in utilising orphan works. It stifles the ability for knowledge to be shared and new content to be created. To help address this issue, the Government has enacted the Copyright Amendment (Disability and Other Measures) Act 2017 which establishes a term of protection for unpublished works including where the identity of the author is unknown. The Government will also consult on the most appropriate way to limit liability for use of orphan works in the Copyright Act. 
Recommendation 7.1 The Australian Government should incorporate an objects clause into the Patents Act 1990 (Cth). The objects clause should describe the purpose of the legislation as enhancing the wellbeing of Australians by promoting technological innovation and the transfer and dissemination of technology. In so doing, the patent system should balance over time the interests of producers, owners and users of technology. 
The Government supports this recommendation. The Government previously accepted a similar recommendation of the former Advisory Council on Intellectual Property (ACIP) in its 2010 review of patentable subject matter, on the basis that a statement of objectives in the Patents Act 1990 would provide a clear statement of legislative intent for the guidance of the courts in the interpretation of the Act. The Government continues to support a clear statement of legislative intent in the Patents Act. The Government will seek amendments to the Patents Act to give effect to this recommendation, but will give further consideration to the exact wording of the objects clause. The implementing legislation will be the subject of further public consultation. The Government notes that the Productivity Commission previously found in favour of an objects clause in its 2013 review of compulsory licensing of patents (finding 6.2 of that review). Noting the 2013 review’s recommendations on Crown Use and compulsory licensing were also directed towards ensuring that there is an appropriate balance in the patents system, the Government will consult further on those recommendations during the implementation of this Government response. 
Recommendation 7.2 The Australian Government should amend ss. 7(2) and 7(3) of the Patents Act 1990 (Cth) such that an invention is taken to involve an inventive step if, having regard to the prior art base, it is not obvious to a person skilled in the relevant art. The Explanatory Memorandum should state: • a ‘scintilla’ of invention, or a scenario where the skilled person would not ‘directly be led as a matter of course’, are insufficient thresholds for meeting the inventive step • the ‘obvious to try’ test applied in Europe would in some instances be a suitable test. IP Australia should update the Australian Patent Office Manual of Practice and Procedure such that it will consider the technical features of an invention for the purpose of the inventive step and novelty tests. 
The Government supports this recommendation. The Government accepts that Australia’s patent standards should be consistent with international best practice, in accordance with the stated objectives of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. Although the Raising the Bar reforms made considerable improvements to the assessment of inventive step in Australia, they did not change the fundamental nature of the inventive step test in subsection 7(2) of the Patents Act 1990, or to the interpretation of that test developed by the courts. Whilst the assessment of inventive step in the European Patent Office and in Australia is similar in most cases, the Productivity Commission considers that some differences still remain. The Government therefore supports the recommendation to put beyond doubt that the assessment of inventive step in Australia is consistent with the European Patent Office. The Government will seek amendments to the Patents Act to give effect to this recommendation. The wording of the legislative change and explanatory memorandum will be the subject of further public consultation. IP Australia will continue to monitor patent standards internationally to evaluate the effect of these reforms. The Government supports this recommendation. This recommendation aligns with recommendation 7.2, which the Government has also supported. The Government will implement both of these recommendations at the same time. 
Recommendation 7.3 IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims. 
Recommendation 7.4 The Australian Government and IP Australia should set patent fees to promote broader intellectual property policy objectives, rather than the current primary objective of achieving cost recovery. To this end, the Australian Government, with input from IP Australia, should: • restructure patent renewal fees such that they rise each year at an increasing rate (including years in which patents receive an extension of term) — fees later in the life of a patent would well exceed current levels • reduce the initial threshold for claim fees, and increase claim fees for applications with a large number of claims. 
The Government notes this recommendation. IP Australia’s fees are already set to balance both innovation and cost recovery policy objectives. The Government considers that there is greater flexibility within the cost recovery framework to achieve policy outcomes than the Commission’s report suggests. Current Government policy under the Australian Government Charging Framework is that where specific demand for a government activity is created by clearly identifiable individuals or groups, those individuals should be charged for it wherever possible. Granting of IP rights is clearly within this policy statement, and as a regulatory activity is appropriate for cost recovery. As a result, the Government is not persuaded that it is necessary for IP Australia to move away from a cost recovery framework at this time to give effect to the intentions of this recommendation. Instead, IP Australia will have regard to the recommendation when reviewing patent fees in future, including renewal and claim fees. 
Recommendation 8.1 The Australian Government should abolish the innovation patent system. 
The Government supports this recommendation. The Government notes that both the Productivity Commission and the former Advisory Council on Intellectual Property (ACIP) have recommended that the innovation patent system be abolished. Both found that the innovation patent system is unlikely to provide net benefits to the Australian community or to the small and medium sized enterprises (SMEs) who are the intended beneficiaries of the system. The Commission found that the majority of SMEs who use the innovation patent system do not obtain value from it, and that the system imposes significant costs on third parties and the broader Australian community. The Government notes that the innovation patent system was established with the objective of stimulating innovation in Australian SMEs. The Government considers that more targeted assistance would better achieve this objective, while avoiding the broader costs imposed by the innovation patent system. Along with initiatives to support SMEs introduced through the National Innovation and Science Agenda (NISA) and existing programs such as the R andD Tax incentive, the Government has already implemented a number of measures to support SMEs to better understand, secure and utilise their IP. These include the IP Toolkit for Collaboration, Source IP, the Patent Analytics Hub and aspects of the Entrepreneur’s Programme, which provide grants and advisory services for businesses in certain industry sectors seeking to leverage their IP. IP Australia is continually improving its services and processes to benefit business, including the establishment of a new IP Counsellor to China, trialling the provision of Patent Analytics services under the Entrepreneur’s Programme, and raising education and awareness of IP issues with start-ups. 
The Government will seek legislative amendments to the Patents Act 1990 to abolish the innovation patent system, with appropriate arrangements to maintain existing rights. The Government will continue to explore more direct mechanisms to better assist SMEs to understand and leverage their IP, secure and utilise IP Rights and access affordable enforcement. 
Recommendation 10.1 The Australian Government should reform extensions of patent term for pharmaceuticals such that they are only: (i) available for patents covering an active pharmaceutical ingredient, and (ii) calculated based on the time taken by the Therapeutic Goods Administration for regulatory approval over and above 255 working days (one year). The Australian Government should reform s. 76A of the Patents Act 1990 (Cth) to improve data collection requirements for extensions of term, drawing on the model applied in Canada. Thereafter no extensions of term should be granted until data is received in a satisfactory form. 
The Government notes this recommendation, however has no plans to proceed with this recommendation in the form proposed by the Productivity Commission. The Government will discuss ways to improve the patent term extension system with the sector. The Government recognises the importance of patent protection to the pharmaceutical industry. The cost of bringing a new pharmaceutical product to market is substantial and involves long development lead-times. Patents provide a time-limited period of exclusivity, during which pharmaceutical patent owners can generate a reasonable return on their investment. This ensures continuing innovation in the sector and that new and more effective pharmaceutical products are brought to the Australian market. Pharmaceutical products are subject to a regulatory approval process before they can be marketed. A pharmaceutical product can only be supplied to the Australian market after it has been assessed by the Therapeutic Goods Administration as meeting the requirements of quality, safety and efficacy and is registered in the Australian Register of Therapeutic Goods. This assessment has a statutory timeframe of 255 working days, which may exceed one calendar year as the TGA has the legislative ability to seek further information from the applicant. The Government acknowledges that for many pharmaceutical products, the effective patent life – the period between marketing approval and patent expiry – is reduced by the time taken for companies to obtain evidence to support applications under the subsequent regulatory review process. In common with other countries, this can affect incentives to discover and develop new pharmaceutical products. The Commission questions whether providing a 15 year effective patent life is necessary to achieve a reasonable return on investment for bringing new pharmaceutical products to the Australian market, and whether the EOT provisions have had a positive impact on attracting additional R and D investment. 
The Government notes the Commission’s finding that extensions of patent term prolong market exclusivity and impose significant costs on consumers, Government and taxpayers. The Commission estimated that the cost to the Government (through additional costs to the Pharmaceutical Benefits Scheme) of providing extensions of patent term to pharmaceuticals is approximately $260 million per annum. The Government notes that the effective patent life of extended Australian patents is 12 months longer at the median than those in the United States and the average expiry date of extended Australian patents is 18 months later than those in the United States.   The Government recognises the recent Strategic Agreement with Medicines Australia will deliver savings of $1.8 billion over five years to the Pharmaceutical Benefits Scheme. Any consideration of changes to the extensions of term regime must strike a balance between ensuring that new pharmaceutical products are developed and that they are safe and effective, but also ensuring that they are accessible and affordable. The Government notes the Commission’s recommendation to reform section 76A of the Patents Act 1990 (Cth) to improve data collection requirements for extensions of term. Since the scheme was introduced in 1999, the Government’s ability to access and analyze relevant data increased markedly. As the Commission has not identified a convincing rationale for imposing this regulatory burden, the Government will consider repealing section 76A. 
Recommendation 10.2 The Australian Government should introduce a system for transparent reporting and monitoring of settlements between originator and generic pharmaceutical companies to detect potential pay for delay agreements. This system should be based on the model used in the United States, administered by the Australian Competition and Consumer Commission, and include guidelines on the approach to monitoring as part of the broader guidance on the application of the Competition and Consumer Act 2010 (Cth) to intellectual property (recommendation 15.1). The monitoring should operate for a period of five years. Following this period, the Australian Government should review the regulation of pay for delay agreements (and other potentially anticompetitive arrangements specific to the pharmaceutical sector). 
The Government supports in principle this recommendation. The Government recognises that pay for delay agreements have the potential to seriously harm competition and innovation in relation to pharmaceuticals. The Government notes the concerns raised by some stakeholders that there is presently no evidence that pay for delay activity is occurring in Australia. However, it does not follow that such activity has not occurred or that incentives to engage in such conduct do not exist. Rather, it may only confirm the difficulty of detecting such agreements, particularly where an agreement that affects the price or availability of pharmaceuticals in Australia is made overseas. In this regard, the Government is aware that pay for delay agreements reached overseas between foreign companies have the very real potential to impact markets in Australia. The Government considers that introducing a reporting and monitoring regime for potentially anti- competitive conduct between pharmaceutical patent owners and generic pharmaceutical manufacturers would improve transparency and would better equip the ACCC to detect any anti-competitive behaviour. A reporting obligation would deter anti-competitive agreements being struck that harm Australians. In the event that no pay for delay agreements are struck that impact upon Australia in any one year, there would be little to no burden upon pharmaceutical firms to advise the ACCC of that matter. The Government will further consider the options for implementing this recommendation, including suitable compliance mechanisms where there is a failure by a party, or parties, to lodge relevant agreements with the ACCC. In this regard, the scheme may be informed by reporting frameworks in 12 other sectors, such as the breach reporting framework under the Corporations Act 2001 applying to Australian financial services licensees. Consideration of implementation options will also include exploring effective mechanisms for capturing agreements reached overseas that impact Australian markets. 
Recommendation 12.1 The Australian Government should amend the Trade Marks Act 1995 (Cth) to: (a) reduce the grace period from 5 years to 3 years before new registrations can be challenged for non-use (b) remove the presumption of registrability in assessing whether a mark could be misleading or confusing at application (c) ensure that parallel imports of marked goods do not infringe an Australian registered trade mark when the marked good has been brought to market elsewhere by the owner of the mark or its licensee. Section 97A of the Trade Marks Act 2002 (New Zealand) could serve as a model clause in this regard. IP Australia should: (d) require those seeking trademark protection to state whether they are using the mark or ‘intending to use’ the mark at application, registration and renewal, and record this on the Australian Trade Mark On line Search System (ATMOSS). It should also seek confirmation from trade mark holders that register with an ‘intent to use’ that their mark is actually in use following the grace period, with this information also recorded on the ATMOSS (e) require the Trade Marks Office to return to its previous practice of routinely challenging trade mark applications that contain contemporary geographical references (under s. 43 of the Trade Marks Act) (f) in conjunction with the Australian Securities and Investment Commission, link the ATMOSS database with the business registration portal, including to ensure a warning if a business registration may infringe an existing trade mark. 
The Government supports recommendation (a) to reduce the grace period for challenging non-use of a trade mark. The Government agrees that it is desirable to effectively manage cluttering on the trade mark register and will seek amendments to the Trade Marks Act 1995 to give effect to this recommendation, which will include further public consultation on an exposure draft of proposed legislation. 
The Government does not support recommendation (b) to remove the presumption of registrability in assessing whether a trade mark could be misleading or confusing. The Government notes that the presumption of registrability is a fundamental principle of the Trade Marks Act, which applies to all grounds for rejecting an application. The Government does not agree with the Commission’s suggestion that it is unreasonably difficult to reject a mark on the grounds that it is misleading or confusing. The presumption of registrability allows some discretion to reject a trade mark that would be misleading or confusing, but sets the level of certainty required at an appropriate level. 
The Government supports recommendation (c) to ensure that parallel imports of marked goods do not infringe an Australian registered trade mark when the good has been brought to market elsewhere by the owner or licensee. 
The Government accepts that section 123 of the Trade Marks Act is not effectively implementing the policy intention of allowing for the parallel importation of legitimate goods and has led to some uncertainty and confusion. The Government will seek amendments to the Trade Marks Act to give effect to this recommendation, which will include further public consultation on an exposure draft of proposed legislation.   
The Government supports in principle recommendation (d) to require a statement of ‘using’ or ‘intending to use’ a mark at application, registration and renewal. The Government will ask IP Australia to undertake further research and analysis to determine the sources and extent of any clutter on the trade marks register. This research will inform the development of appropriate reforms to address clutter, which may include implementation of some aspects of this recommendation. 
The Government supports recommendation (e) to routinely challenge trade mark applications that contain contemporary geographical references, but some further work is needed to determine the scope of the practice change in the Trade Marks Office. The Government agrees that geographical terms in trade marks are a particularly contentious issue in relation to misleading and confusing connotations. 
The Government supports in principle recommendation (f) to link the ATMOSS (now known as Australian Trade Mark Search) database with the business registration portal. The Government agrees that additional assistance for business name applicants would be desirable to help them make informed decisions. The Government is currently working to establish a single online portal for streamlined business and company registration and is continuing to develop Australian Trade Mark Search to provide additional capabilities. Linkages between these databases to better assist and streamline business decision-making are being explored. The Government notes that the effectiveness of issuing of automatic warnings is reliant on the sophistication of available technologies, and requires further consideration. Assessing whether a business name may infringe a trade mark is a complex decision, meaning that there is a risk that an automated warning may not bring all relevant trade marks to the business name applicant’s attention. 
Recommendation 12.2 The Australian Government should amend the Australian Grape and Wine Authority Act 2013 (Cth) and associated regulations to allow the Geographical Indications (GIs) Committee to amend or omit existing GIs in a manner similar to existing arrangements for the determination of a GI (including preserving the avenues of appeal to the Administrative Appeals Tribunal). Any omissions or amendments to GIs determined in such a manner should only take effect after a ‘grace period’ determined by the GI Committee on a case by case basis. 
The Government supports in part this recommendation. The Government supports the recommendation that amendments should be made to the process to omit Australian Geographical Indications (GI). The power granted to individuals to effectively veto an omission of a GI is unnecessary and makes the omissions procedure unworkable in practice. The Government supports replacing this with a requirement that the Committee must have regard to the submissions it receives before it makes its determination. The Government does not support the recommendation that amendments should be made to the process to amend Australian GIs. The Government notes the caution expressed by the Commission and the Authority and considers that introducing a GI amendment process creates an unnecessary risk of litigation. The Government further notes this risk was duly considered at the time of drafting the GI provisions and, for this reason, an amendment process was expressly excluded. 
Recommendation 13.1 The Australian Government should proceed to implement the Advisory Council on Intellectual Property’s 2010 recommendation to amend the Plant Breeder’s Rights Act 1994 (Cth) to enable essentially derived variety (EDV) declarations to be made in respect of any variety. 
The Government supports this recommendation. The Government agreed in 2011 to the former Advisory Council on Intellectual Property’s 2010 recommendation to enable EDV declarations to be made in respect of any variety. The Government will seek amendments to the Plant Breeder’s Rights Act, including public consultation, to give effect to this recommendation. 
Recommendation 15.1 The Australian Government should repeal s. 51(3) of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) at the same time as giving effect to recommendations of the (Harper) Competition Policy Review on the per se prohibitions. The Australian Competition and Consumer Commission should issue guidance on the application of part IV of the Competition and Consumer Act to intellectual property. 
The Government supports this recommendation. The Government will seek to repeal section 51(3) of the Competition and Consumer Act 2010, noting that the recommendations of the Competition Policy Review relating to per se prohibitions, authorisations and notifications are already being implemented. It is now generally agreed that there is no fundamental conflict between IP rights and competition policy; rather they share the purpose of promoting innovation and enhancing consumer welfare. However, where there is evidence of anti-competitive conduct associated with IP licensing arrangements, it is important that such conduct is appropriately regulated. If anti-competitive conduct in this space is nonetheless in the public interest, authorisation will be available under Part VII of the Competition and Consumer Act. The immediate costs and benefits of removing the exemption under section 51(3) are finely balanced. However, looking ahead, increased cross-licensing may occur in growth industries such as pharmaceuticals and communications, which would considerably increase the benefits associated with removing the exemption. 
Recommendation 16.1 The Australian, and State and Territory governments should implement an open access policy for publicly funded research. The policy should provide free and open access arrangements for all publications funded by governments, directly or through university funding, within 12 months of publication. The policy should minimise exemptions. The Australian Government should seek to establish the same policy for international agencies to which it is a contributory funder, but which still charge for their publications, such as the Organisation for Economic Cooperation and Development. 
The Government supports this recommendation. The recommendation is consistent with current Australian Government policy and emerging international best practice in Europe, the United Kingdom, the United States as well as international organisations such as the Organisation for Economic Co-operation and Development (OECD). Promoting open access to science and research publications and collaborative use of research outputs by researchers and industry is an important element of the Government’s National Innovation and Science Agenda (NISA). The Australian Research Council (ARC) and National Health and Medical Research Council (NHMRC) already require publications arising from government funded grants to be made available in a publicly accessible repository within twelve months of publication. Further implementation arrangements are being developed in consultation with universities and publicly funded research agencies (PFRAs). As part of these arrangements, the Government plans to require all PFRAs to put in place transparent policies that are consistent with this approach, with the flexibility to allow exemptions in specific circumstances, tailored to the needs of individual agencies. The Australian Government also calls on state and territory governments to implement transparent open access policies that are consistent with this policy for publications arising out of the research they fund. 
Recommendation 17.1 The Australian Government should promote a coherent and integrated approach to IP policy by: • establishing and maintaining greater IP policy expertise in the Department of Industry, Innovation and Science • ensuring the allocation of functions to IP Australia has regard to conflicts arising from IP Australia’s role as IP rights administrator and involvement in policy development and advice • establishing a standing (interdepartmental) IP Policy Group and formal working arrangements to ensure agencies work together within the policy framework outlined in this report. The Group would comprise those departments with responsibility for industrial and creative IP rights, the Treasury, and others as needed, including IP Australia. 
The Government supports this recommendation. The Department of Industry, Innovation and Science (DIIS) established a dedicated IP Policy Unit in April 2016. This unit works closely with IP Australia and the Communications and the Arts portfolio in developing policy and providing advice to the government. The unit is also strengthening relationships with other relevant portfolios including the Treasury. The Government agrees with the Commission’s view that rights administrators, such as IP Australia, have an important contribution to make to policy development. The Government will continue to ensure that the allocation of functions to IP Australia has regard to any potential conflicts. IP Australia generally takes the lead on technical policy issues. DIIS takes the lead on broader policy issues that deal with other aspects of innovation policy or relate to the role of IP in Australia’s innovation system. DIIS and IP Australia have measures in place to manage potential conflicts, including the creation of the position of Deputy Director General (Policy and Corporate) at IP Australia; convening regular IP Policy meetings of senior officials of both organisations aimed at actively investigating options regarding their respective responsibilities in the IP policy landscape; and as noted above, building DIIS capacity in IP policy. A standing interdepartmental IP Policy Group (IPPG) has been established as recommended, to support an integrated and coherent approach to developing the Government’s policy agenda for IP issues, with regard to the Commission’s policy framework (recommendation 2.1). It currently comprises senior officials from nine departments and agencies and is chaired by the responsible Deputy Secretary of DIIS. 
Recommendation 17.2 The Australian Government should charge the interdepartmental IP Policy Group (recommendation 17.1) and the Department of Foreign Affairs and Trade with the task of developing guidance for IP provisions in international treaties. This guidance should incorporate the following principles: • avoiding the inclusion of IP provisions in bilateral and regional trade agreements and leaving negotiations on IP standards to multilateral fora • protecting flexibility to achieve policy goals, such as by reserving the right to draft exceptions and limitations • explicitly considering the long term consequences for the public interest and the domestic IP system in cases where IP demands of other countries are accepted in exchange for obtaining other benefits • identifying no go areas that are likely to be seldom or never in Australia’s interests, such as retrospective extensions of IP rights • conducting negotiations, as far as their nature makes it possible, in an open and transparent manner and ensuring that rights holders and industry groups do not enjoy preferential treatment over other stakeholders. 
The Government notes this recommendation. The Government has accepted the Commission's recommendation to establish an IP Policy Group to promote policy coordination. However, the Government does not consider that tasking the IP Policy Group and DFAT to develop guiding principles will provide additional benefit. The IP Policy Group will work to support the robust arrangements the Government has in place for negotiating IP provisions in international treaties. The Government considers improved coordination of Australia's IP policy priorities and interests will, in itself, deliver the benefits the Commission seeks in this recommendation. Engaging with stakeholders and understanding their perspectives and priorities is an integral and valued part of Australia’s treaty negotiation process. The Government welcomes public interest in IP negotiations and will continue to work with all stakeholders to deliver outcomes that benefit Australia. Various means are used to provide transparency and facilitate stakeholder engagement. These include encouraging stakeholders to provide submissions outlining their interests and concerns, convening stakeholder meetings and providing updates and briefing on the progress of negotiations. Before any action is taken that would bind Australia under international law, draft agreements are tabled in Parliament and made publicly available for scrutiny and discussion. In addition to general scrutiny, the Joint Standing Committee on Treaties (JSCOT) considers draft treaties and makes recommendations on whether to proceed with binding action. JSCOT is a public process that includes consideration of submissions from interested parties. JSCOT and general public consideration of draft treaties is enhanced by the release of a National Interest Analysis explaining the outcomes of a treaty and its impact on Australia’s interests. The Government comprehensively considers Australia’s domestic interests in the treaty making process. The negotiation of international IP provisions is informed by domestic policy and best practice approaches. Specialists within the Government agencies responsible for development of IP policy participate actively in formulating and negotiating IP positions in trade agreements and take the lead on broader multilateral IP negotiations. Stakeholder consultations also inform approaches, as do feasibility studies and other assessments. Government agencies, as part of obtaining mandates   for treaty outcomes, also complete a Regulatory Impact Statement that assesses the costs and benefits of proposed actions. While a number of the Commission’s proposed principles already inform Government arrangements, the Government firmly rejects the proposed principle that IP provisions be excluded from Free Trade Agreements (FTAs). Decisions about whether it is in Australia’s best interest to pursue IP provisions within an international negotiation are made on a case-by-case basis. Preventing Australia from negotiating IP provisions in FTAs would impede efforts to advance the interests of Australian exporters in balanced and effective IP protection in overseas markets. It would also preclude Australia from participating in important FTA negotiations such as the Trans-Pacific Partnership and Regional Comprehensive Economic Partnership. With this in mind, the Commission’s proposal would prevent Australia from accessing significant economic and welfare benefits of new trade liberalisation occurring through FTAs. 
Recommendation 18.1 The Australian Government should: • pursue international collaborative efforts to streamline IP administrative and licensing processes separately from efforts to align standards of IP protection. In so doing, it should consider a range of cooperative mechanisms, such as mutual recognition • use multilateral forums when seeking to align standards of protection. 
The Government supports in part this recommendation. The Government agrees with the Commission on the importance of international collaboration on IP. However, the Government does not support the Commission's proposal to separate collaboration on IP administration from collaboration on IP protection, and to limit the forums in which the latter could be pursued. The Government considers that attempts to force a separation between international collaboration on IP protection and international collaboration on IP administration would not deliver better outcomes for Australia. For example, leading multilateral treaties within both the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) contain both IP administration and IP protection provisions, as do bilateral and plurilateral trade agreements. Australia’s international collaboration on IP is broad-ranging and multifaceted. Key areas of activity include: • multilateral cooperation under the auspices of WIPO and the WTO; • bilateral, plurilateral and multilateral international agreements; • bilateral and plurilateral initiatives involving Australia’s domestic IP agencies and their overseas counterparts; and • capacity building activities to strengthen IP systems in developing country partners. 
Recommendation 18.2 The Australian Government should play a more active role in international forums on intellectual property policy — areas to pursue include: • calling for a review of the TRIPS Agreement (under Article 71.1) by the WTO • exploring opportunities to further raise the threshold for inventive step for patents • pursuing the steps needed to explicitly allow the manufacture for export of pharmaceuticals in their patent extension period • working towards a system of eventual publication of clinical trial data for pharmaceuticals in exchange for statutory data protection • identifying and progressing reforms that would strike a better balance in respect of copyright scope and term. 
The Government notes this recommendation. The Government supports active engagement by Australia in international forums on IP policy, and will continue to do so on the basis of achieving balanced and effective outcomes in Australia’s interest. The Government notes the Recommendation that Australia should be even more active.   The Government agrees with the Commission on the importance of Australia taking an active role in international IP forums. Australia is already an active player, and the recommendation takes insufficient account of these efforts. The leading international forum on IP policy is the World Intellectual Property Organization (WIPO). Australia is actively advancing its interests within WIPO. For example: • an Australian official currently Chairs an ambitious normative project in WIPO, the Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (charged with pursuing multilateral IP outcomes that will promote effective protection of traditional knowledge, traditional cultural expressions and genetic resources); • Australia pioneered, with Canada and the UK, the WIPO Centralized Access to Search and Examination system (a powerful tool to help IP agencies around the world increase their efficiency through work sharing initiatives); • Australia is one of a modest number of countries operating a Funds-in-Trust arrangement with WIPO to partner on wide-ranging capacity building projects in our region and to invest in partnerships to improve access to medicines (a total of $5 million committed since 2012); • Director General of IP Australia, Ms Patricia Kelly, currently Chairs Group B+, an influential grouping established to promote and facilitate progress on key issues under consideration at WIPO. Group B+ includes Canada, Japan, the United States, South Korea, European Union member states and the European Commission; and • In 2016, Australia was one of the initial twenty countries to ratify and bring into force the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Australia was involved in the first cross-border transfer of accessible books under the Treaty when books in audio format were provided by the Canadian National Institute for the Blind to Vision Australia on 30 September 2016. Australia is also an active player in IP-related meetings at the World Trade Organization. For example: • in 2015, the Government passed legislation to implement the Protocol to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), enabling Australian medicine producers to manufacture and export patented pharmaceuticals to countries experiencing health crises, under a compulsory license from the Federal Court. The Government, since Protocol negotiations concluded in 2005, has actively encouraged WTO Members to join the agreement to ensure its entry into force. That goal was achieved on 23 January 2017; • Australia actively promotes an IP and innovation agenda in TRIPS meetings, working with other Members to share experiences and promote best practice; and • Australia actively engages with least developing countries on measures to promote technology transfer, including through workshops and whole-of-government reporting on actions in this area. The Government’s international engagement is already focussed on achieving balanced and effective outcomes in Australia’s interest and it will continue to consider new initiatives as appropriate. 23 
Recommendation 19.1 The Australian Government should expand the safe harbour scheme to cover not just carriage service providers, but all providers of online services. 
The Government supports in principle this recommendation. The Government recognises the limitations of the safe harbour scheme being restricted to only carriage service providers. The Government is undertaking additional consultation on the safe harbour scheme before considering whether to introduce amendments to the Parliament. This additional consultation will ensure our safe harbour scheme will encourage growth in Australia’s digital economy and ensure a thriving and vibrant creative sector, whilst respecting the interests of copyright holders. 
Recommendation 19.2 The Australian Government should introduce a specialist IP list in the Federal Circuit Court, encompassing features similar to those of the United Kingdom Intellectual Property Enterprise Court, including limiting trials to two days, caps on costs and damages, and a small claims procedure. The jurisdiction of the Federal Circuit Court should be expanded so it can hear all IP matters. This would complement current reforms by the Federal Court for management of IP cases within the National Court Framework, which are likely to benefit parties involved in high value IP disputes. The Federal Circuit Court should be adequately resourced to ensure that any increase in its workload arising from these reforms does not result in longer resolution times. The Australian Government should assess the costs and benefits of these reforms five years after implementation, also taking into account the progress of the Federal Court’s proposed reforms to IP case management. 
The Government notes this recommendation. The ability to enforce IP rights in a timely and cost-effective manner is an important aspect of the IP system. IP rights provide an incentive to innovate and create. An IP rights system that meets the principles of effectiveness, efficiency, adaptability and accountability must include ways to ensure that benefits accrue to the creators of IP, that disputes are resolved efficiently and that frameworks for enforcement of IP have the flexibility to meet the demonstrated needs of users. The Productivity Commission notes that Australia’s IP enforcement arrangements compare well internationally. However, it found that there is room for improvement in facilitating access to IP enforcement options for innovative and creative SMEs who are particularly affected by the time and cost of entering into legal proceedings. The Government supports strategies to improve access to the full spectrum of enforcement options, from low cost resolution through negotiation or mediation through to litigation when it becomes necessary. The Government notes that the Federal Circuit Court (FCC) has commenced a pilot in its Melbourne Registry to streamline its management of IP matters and to increase the visibility of the FCC as an alternative to the Federal Court of Australia (FCA). A Practice Direction sets out the arrangements for the management of the IP pilot, which can be established by the FCC using its existing powers to resolve matters in a flexible manner that is proportionate to the issue in dispute. In planning this IP Pilot, the FCC has closely considered the practices and procedures adopted by the UK Intellectual Property Enterprise Court. It has also built on its own experience in establishing dedicated lists in other areas of the law. Given that patent matters can be particularly complex, the Government considers that it is essential to ensure that patent matters are dealt with in the appropriate forum by judges with the requisite expertise. 
The Government notes that recent initiatives of the FCA address several of the issues identified by the Productivity Commission. The FCA has implemented an IP National Practice Area and issued a new Practice Note for IP matters. These initiatives aim to increase the efficiency of the conduct of litigation in the Court and reduce the cost of that litigation. Such active case management initiatives are acknowledged as an effective way to streamline the court process, reducing trial duration and costs. 
More broadly, the Government will continue to explore strategies to enable SMEs to understand that alternative methods of dispute resolution are available outside of the courts. IP Australia has recently launched its IP Mediation Referral Service, and is investigating how to improve accessibility to IP insurance. The Government will also review existing information it provides about IP infringement and enforcement. This review will seek to ensure that information provided meets the needs of Australian innovative and creative businesses and enables them to take the most appropriate course of action to resolve IP disputes.


The ACT Legislative Assembly Standing Committee on Health, Ageing and Community Services report on the Employment of People with Disabilities examines
matters related to hospitals, community and public health, mental health, health promotion and disease prevention, disability matters, drug and substance misuse, targeted health programs and community services, including services for older persons and women, families, housing, poverty, and multicultural and indigenous affairs. 
The Committee notes that
a) the employment rate of people with disability in the ACT Public Service is 2.2 per cent as at June 2016; 
b) the Australian Human Rights Commission report, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability found the ACT to be the only jurisdiction with an increase in the employment of people with disability over the 2013-15 period; 
c) the ACT Government’s new Office for Disability and Disability Reference Group has been established to provide strategic policy advice on disability issues. 
The  Committee's terms of reference encompass
• the implementation of the ACT Public Service Disability Employment Strategy; 
• the effectiveness of current attraction and retention programs in the ACT Public Service; 
• the effectiveness of current attraction and retention programs for ACT based private enterprise and community organisations; 
• data collection, monitoring and reporting mechanisms; 
• relevant experiences and learnings from Australian State, Commonwealth and international jurisdictions; 
• the applicability to the ACT Public Service, of recommendations and findings from the report Employing people with disability in the APS published by the University of Canberra; 
• gender related matters that intersect with the employment of people with disabilities; and 
• any other relevant matter. 
The Committee's recommendations are that -
1 the ACT Government adopt a standard definition of disability for use in all training, policies and decisions making processes relating to employment, including reasonable adjustment. 
2 the ACT Government have a standalone disability employment strategy for the ACT Public Service developed in consultation with people with a disability, the Disability Reference Group and other stakeholders. This Strategy should include: a) Consideration of any outstanding action items previous strategies, policies and frameworks relating to disability employment in the ACT Public Service. b) Consideration of the Doing it Differently “ask the person” approach for service interactions with both employees and service users that disclose a disability; c) A timeline for all ACT Government Directorates to develop Disability Employment Action Plans with clear lines of accountability, monitoring and evaluation; d) Recognition and support for people with mental illness and/or psychosocial disabilities in the workplace; e) A timeline for all ACT Government Directorates to appoint a Disability Inclusion Champion and establish a Disability Employee Network; and f) A timeline for the ACT Government to establish a Practitioner’s Network across all Directorates and Agencies. 
3  the ACT Government encourage the Disability Reference Group to consider: a) identifying and addressing barriers to employment as part of their forward work plan, and b) disability employment objectives under the National Disability Insurance Scheme to inform the transition. 
4 the ACT Government review the NSW High Growth Jobs, Talented Candidates project for implementation in the ACT. 
5 the ACT Government consider evaluating the Lead Toolkit from New Zealand for use in a future training program. 
6 the ACT Government consider what place-based disability employment initiatives can be implemented as part of future disability employment strategies. 
7 the ACT Government consider establishing a paid internship program to build professional skills, provided there are links to an employment pathway, for people with a disability, as part of its continuum of disability employment initiatives. 
8 the Office of the Legislative Assembly for the ACT be funded to deliver a paid internship program for people with a disability in the ACT Legislative Assembly, provided that there are links with an employment pathway. 
9 the ACT Government continue successful initiatives at identified entry points, including the graduate and traineeship programs. 
10 the ACT Government ensure all procurement guidelines for ICT products purchased by the ACT Government require accessibility features as a standard. 
11 the ACT Government review the ACT Government’s social procurement guidelines to better support disability employment outcomes. 
12 the ACT Government undertake an evaluation of the payroll tax concession scheme and publish this when finalised. 
13 the ACT Government establishes an access committee, comprising of representatives with disabilities, to provide advice and comment on planning and transport policies. 
14 the ACT Government establishes a register for people with a disability with the purposes of matching people with disabilities with board and committee vacancies. 
15 Healthier Work ACT consider focusing on strategies to improve mental health in ACT workplaces including for people with disabilities. 
16 the ACT Government advocate for better employment supports, and in particular, the identification of employment opportunities with the National Disability Insurance Agency. 
17 the ACT Government work with the Australian Network on Disability to become a disability confident recruiter. 
18 the ACT Government reviews standardised selection criteria to improve flexibility and reduce barriers for people with a disability. 
19 the ACT Government identifies certain positions suitable for people with a disability for selective recruitment and placement in all Directorates and across all levels of employment. 
20 the ACT Government implement the Doing it Differently recommendation of co-designing a developmental performance review system to support public servants with a disability. 
21 the ACT Government supports people with a disability through an emerging leaders program to support career development into future senior leadership roles. 
22 the ACT Government adopt an anonymous reporting process for people employed in the ACT Public Service that is reported on annually in the State of the Service report. The Survey should use terminology consistent with the definition of disability. 
23 the ACT Government consider the Washington Group questions to inform future data collection processes. 
24 the ACT Government and agencies be required to report on disability employment rates and outcomes, as well as progress against disability employment action plans in their annual reports tabled in the ACT Legislative Assembly. 
25 the ACT Government ensure Shared Services ICT, provides timely support for reasonable adjustments in the IT system including hardware and software enhancements. 
26 the Head of Service set short, medium and long term targets for people with a disability in the ACT public service that reflects the broad proportion of people with disabilities in the community. 
27 the ACT Government review performance requirements of senior officers in the ACT Public Service to build in diversity requirements and implementation of disability employment action plans. 
28 the ACT Government ensure all senior executives have detailed targets for the employment of people with disabilities included in their performance agreements. 
29 the ACT Government review options to improve data collection from ACT Government contractors around the levels of disability employment for publication. 
30 the ACT Government considers collecting and publishing data in relation to occasions of bullying and harassment of people with disabilities in the ACTPS. 
31 the ACT Government ensure all staff at the Executive Level 1 or 2 equivalent, and all human resource team members, attend compulsory face-to-face disability awareness training and access to a disability employment toolkit. Training should be co-designed by people with disabilities and include reference to mental illness. 
32 training includes awareness of Web Content Accessibility Guidelines (WCAG) 2.0 requirements in electronic communication and publishing.
In defining 'disability the report states
The Committee understands that there are a number of ways to define and measure disability in Australia. The section below highlights the difference in approaches and discusses how this can have implications for job seekers and employers. 1.6 In relation to the Australian Capital Territory (ACT) specific definitions, the ACT Discrimination Act 1991 defines disability as: a) total or partial loss of a bodily or mental function; or b) total or partial loss of a part of the body; or c) the presence in the body of organisms that cause disease or illness; or d) the presence in the body of organisms that are capable of causing disease or illness; or e) the malfunction, malformation or disfigurement of a part of the body; or f) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or h) any other condition prescribed by regulation. 
The Commonwealth Disability Discrimination Act 1992 defines disability in the same terms as the ACT Discrimination Act 1991
Nationally, there is a breadth of definitions used by Government, within Government and by non-Government organisations. One of the most commonly referenced definitions is that used in the Australian Bureau of Statistics (ABS) 2015 Survey on Disability, Ageing and Carers (the Survey). The Survey defines disability as a limitation, restriction or impairment, which has lasted, or is likely to last, for at least six months and restricts everyday activities. 
The Survey further identifies four levels of core activity limitation based on whether a person needs helps, has difficulty, or uses aids or equipment with core activities. The four levels of limitation are: • Profound – the persons is unable to do, or always needs help with, a core activity task; • Severe – the person sometimes needs help with a core activity and/or has difficulties being understood and communicating without non-spoken forms of communication; • Moderate – the person needs no help, but has difficulty with a core activity task; and • Mild – the person needs no help and has no difficulty with any of the core activity tasks but uses aids or has limitations. 
Defining disability was highlighted as a focus area for improvement in the recent Doing it Differently report. Researchers highlighted that a standard definition was needed, and that any definition had to be cognisant of the following elements: • People with a disability wish to be regarded not as being provided with special advantages but as working differently. This observation should be captured in any new operational definition that emphasises difference rather than incapacity: • The current definition of disability used by the Australian Public Service (APS) needs greater clarity in regard to its treatment of employees with mental or other cognitive barriers; and • The adjustments requirements of assistive technology need to be integrated into the definition, for example, just because someone has a hearing aid doesn’t mean that their disability has been treated. 
Doing it Differently states: [T]he existing definition of disability (which is based on a deficit model) disempowers rather than empowers people with disability, particularly those with mental illness and/or requiring organisational support for assistive technology. Lack of empowerment leads to low levels of employee confidence and organisational trust. Trust remains the key to enhancing disclosure. 
Internationally, article one of the United Nation Convention on the Rights of Persons with Disabilities, defines persons with disabilities as those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. 
The World Health Organisation separates the definition of disability into the medical model and the social model. The medical model views disability as a problem of the person caused by disease, trauma or other health condition that requires medical care provided in the form of individual treatment by professionals. By contrast, the social model views disability as a socially created problem and a matter related to the full integration of individuals into society. That is, disability is seen as a state of existence created and enforced by an inflexible social environment failing to accommodate peoples’ needs. 
Throughout the Committee’s Inquiry, a number of submissions and witnesses highlighted the confusion between the varying definitions of disability. Enabled Employment advised the Committee that they use the ABS definition, highlighting that there is no standard definition within the sector in the ACT. Enabled Employment further noted that legislation also appeared to be lacking standardisation. 
The Committee heard that the current working definition in the ACT Government has recently been reconsidered: We decided to go with the definition as defined by the Australian Network on Disability—an impairment or condition that affects you longer than a six-month period or over a six-month period. 
The Committee heard from witnesses regarding the difficulties faced by employees who have a disability but are unaware due to the varying definitions of disability and perceptions of what qualifies them to seek assistance at work ... 
The Committee heard that the definition of disability does matter and can affect the choice to disclose a medical condition ... 
The Committee recognises that confusion in relation to what qualifies as a disability can place a significant burden on both employers and people with a disability, trying to work within complex systems associated with seeking support for employment. 
The Committee believes that there is scope for the current definition to include people who live with an ailment, or injury rather than a disability. The Committee considers this a significant risk. 
The Committee recognisees the limitations of the current definition used by the ACT Government in the content of employment support as it captures a range of disabilities experienced by people who work in the ACTPS. The Committee considers it essential that the definition be expanded and improved as a priority. The definition should have reference to mild, moderate and profound levels of disability, acknowledge mental illness and not include a length of time element. 

24 August 2017

Aadhaar, the Australia Card and Dignity

My article 'The Hanson Card - Neither Necessary Nor Viable' in (2017) 14(6) Privacy Law Bulletin questions the latest outbreak of enthusiasm for a ubiquitous national identity card, notably a revival of the 'Australia Card'.

It is thus interesting to see the resounding judgment by India's Supreme Court in Justice K S Puttaswamy (Read) and Anor versus Union of India and Ors Writ Petition (Civil) No 494 of 2012, which articulates a strong right to privacy under that nation's constitution.

The judgment is at odds with the union (ie national) government's enthusiasm for the Aadhaar national identity registration regime as a solution to a wide range of perceived ills and with disregard at both the national and state levels of respect for sexual diversity.

The Supreme Court in its 547 page judgment [PDF] states that
i) the decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled; 
ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. 
iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

The Court begins by stating
Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value. The issue reaches out to the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic principles on which our Constitution has been founded and their consequences for a way of life it seeks to protect. This case presents challenges for constitutional interpretation. If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection. 
Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is co nditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non-state entities regulates aspects of social existence which bear upon the freedom of the individual. The preservation of constitutional liberty is, so to speak, work in progress. Challenges have to be addressed to existing problems. Equally, new challenges have to be dealt with in terms of a constitutional understanding of where liberty places an individual in the context of a social order. The emergence of new challenges is exemplified by this case, where the debate on privacy is being analysed in the context of a global information based society. In an age where information techn ology governs virtually every aspect of our lives, the task before the Court is to  impart constitutional meaning to individual liberty in an interconnected world. While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world. 
A Bench of three judges of this Court, while considering the constitutional challenge to the Aadhaar card scheme of the Union government noted in its order dated 11 August 2015 that the norms for and compilation of demographic biometric data by government was questioned on the ground that it violates the right to privacy. The Attorney General for India urged that the existence of a fundamental right of privacy is in doubt in view of two decisions : the first – M P Sharma v Satish Chandra, District Magistrate, Delhi (“M P Sharma”) was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh  (“Kharak Singh”) was rendered by a Bench of six judges. Each of these decisions, in the submission of the Attorney General, contained observations that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the submission of the petitioners was that M P Sharma and Kharak Singh were founded on principles expounded in A K Gopalan v State of Madras  (“Gopalan”) . Gopalan, which construed each provision contained in the Chapter on fundamental rights as embodying a distinct p rotection, was held not to be good law by an eleven - judge  Bench in Rustom Cavasji Cooper v Union of India (“Cooper”). Hence the petitioners submitted that the basis of the two earlier decisions is not valid. Moreover, it was also urged that in the seven-judge Bench decision in Maneka Gandhi v Union of India (“Maneka”), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved of and the decision of the majority was overruled.
While addressing these challenges, the Bench of three judges of this Court took note of several decisions of this Court in which the right to privacy has been held to be a constitutionally protected fundamental right. Those decisions include : Gobind v State of Madhya Pradesh  (“Gobind”), R Rajagopal v State of Tamil Nadu (“Rajagopal”) and People’s Union for Civil Liberties v Union of India (“PUCL”). These subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by Benches of a strength smaller than those in M P Sharma and Kharak Singh. Faced with this predicament and having due regard to the far-reaching questions of importance involving interpretation of the Constitution, it was felt that institutional integrity and judicial discipline would require a reference to a larger Bench. Hence the Bench of three learned judges observed in its order dated 11 August 2015:
“12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court. 
Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”  
On 18 July 2017, a Constitution Bench presided over by the learned Chief Justice considered it appropriate that the issue be resolved by a Bench of nine judges. The order of the Constitution Bench reads thus:
During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. 1950 SCR 1077 by an eight - Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors.  1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position.  ...
... While some state governments have supported the stand of the Union government, others have supported the petitioners. 
The correctness of the decisions in M P Sharma and Kharak Singh, is to be evaluated during the course of the reference. Besides, the jurisprudential correctness of subsequent decisions holding the right to privacy to be a constitutionally protected right is to be determined. The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy. The contents of privacy need to be analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by indicating its broad contours. The Court has been addressed on various aspects of privacy including :
(i) Whether there is a constitutionally protected right to privacy;
(ii) If there is a constitutionally protected right, whether this has the character of an independent fundamental right or whether it arises from within the existing guarantees of protected rights such as life and personal liberty;
(iii) the doctrinal foundations of the claim to privacy;
(iv) the content of privacy; and 
(v) the nature of the regulatory power of the state
Privacy for all

At page 216 the Court comments
The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. This submission betrays a misunderstanding of the constitutional position. Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court. 
Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom. The reason for this is simple. Socio-economic entitlements must yield true benefits to those for whom they are intended. This can be achieved by eliminating rent-seeking behaviour and by preventing the capture of social welfare benefits by persons who are not entitled to them. Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny which sub-serves the purpose of ensuring that socio-economic benefits actually permeate to the under-privileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive. ... 
We need also emphasise the lack of substance in the submission that privacy is a privilege for the few. Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.
As part of its conclusion the Court states
The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary. 
2 Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into person al security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled. 
A basis for flourishing 

The Court comments

3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution; 
(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;
(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III; 
(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;
(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub - serves those e ernal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty; 
(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the int imate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being; 
(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features; 
(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with refer ence to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and 
(I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. 
Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy would be read subject to the above principles. 
Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment