30 March 2018

Cloudy Property

'Property and the cloud' by Cesare Bartolini, Cristiana Santos and Carsten Ullrich in (2018) 34(2) Computer Law and Security Review 358-390 comments
Data is a modern form of wealth in the digital world, and massive amounts of data circulate in cloud environments. While this enormously facilitates the sharing of information, both for personal and professional purposes, it also introduces some critical problems concerning the ownership of the information. Data is an intangible good that is stored in large data warehouses, where the hardware architectures and software programs running the cloud services coexist with the data of many users. This context calls for a twofold protection: on one side, the cloud is made up of hardware and software that constitute the business assets of the service provider (property of the cloud); on the other side, there is a definite need to ensure that users retain control over their data (property in the cloud). The law grants protection to both sides under several perspectives, but the result is a complex mix of interwoven regimes, further complicated by the intrinsically international nature of cloud computing that clashes with the typical diversity of national laws. As the business model based on cloud computing grows, public bodies, and in particular the European Union, are striving to find solutions to properly regulate the future economy, either by introducing new laws, or by finding the best ways to apply existing principles.

Flipping the First Year Law classroom

'Blended Learning in the Law Classroom: Design, Implementation and Evaluation of an Intervention in the First Year Curriculum' by Melissa Castan and Ross Hyams in (2017) 27(1) Legal Education Review comments 
When a university-mandated ‘Better Teaching Better Learning’ agenda targeted at unit enhancement coincided with a whole of curriculum review, law lecturers teaching first year law units at Monash University piloted a ‘semi-flipped’ series of short videos, supported by online and in-class activities, in order to incorporate blended learning design in key foundation units. This paper examines the key issues in the design, and implementation and evaluation of the ‘semi-flipped’ experience, highlighting lessons learnt, in terms of technical support, pedagogical issues and assessment considerations. In particular, the utility in seeking to evaluate students’ learning outcomes, engagement with reading materials and in-class activities is critically considered. 
The authors conclude
This article has set out the rationale, implementation and responses to a pilot project in the introductory law unit in a major Australian law school. It has identified the key areas of student feedback to this project, highlighting areas of positive and negative reactions, and made some observations as to the impact of the project. Although this was not an entirely ‘flipped’ unit, it certainly attempted to utilise the most well-known elements of online and face-to-face law teaching, in a blended approach. It began as a pilot project, but is being continued within the law school, and incrementally expanded and enhanced over the following iterations of the unit. We believe there are important lessons to be learnt from our foray into ‘semi-flipped’ teaching of the first year unit.
First, it is important to build in the opportunity to more fully evaluate the changes that we make to teaching methodologies in order to listen to our students’ opinions of how they prefer to learn — while keeping in mind that there is no one teaching style which will satisfy all students.
Second, is also important to create teaching methodologies that have some permanency and can be repeated (albeit with minor necessary changes) from semester to semester and year to year. The original creation of the videos, quizzes and interactive classroom activities were a substantial time investment, but it has paid off in terms of being useable for the future and provides consistency for all students in the foundations unit, across all the teaching streams.
Third, we have learnt that there is no ‘magic bullet’ which will perfect the teaching of first year law students for all time — it is a question of active experimentation and incremental change.
Finally, we remain conscious of the specific need of first year students to have warm and engaging lecturers, who will support the transition from school to university, and guide them in their acculturation into the law school, and the practice of law itself. So, we conclude that a fully ‘flipped’ or even fully online unit for this cohort is not the preferred presentation for our students. Nevertheless, it is apparent that students responded in a largely positive way to the combination of online and in-class teaching of this unit. In that sense, we believe that the advantages of the semi-flipped class lies in the potential enhancement of student motivation, engagement and satisfaction, key indicators of student learning and success in their future studies.
However, we consider that there are limitations in accurately measuring ‘engagement’ and ‘satisfaction’ without adopting a fullscale longitudinal study, and incorporating control groups and other validity measures. For this reason, we remain unable to conclusively prove that, and remain somewhat sceptical of, the assertions that blended learning alone is advantageous to law student learning outcomes. It is our view that trying to measure engagement is a challenging task and to do so properly requires a well-constructed Likert-scale survey that is designed to measure motivation and other intrinsic variables.30 Aside from the issues raised above, there may well be other collateral benefits to students that support the development of innovations in curriculum delivery. Indeed, Hewitt and Stubbs have considered whether there may be benefits to student well-being arising out of these sorts of exercises. Field and Duffy have also explored how first year curriculum design can promote law student psychological wellbeing. Whilst this was not an explicit goal in our unit re-design, we of course, remain conscious of the need to engage, motivate and support our students in order to enhance their learning experience and personal development in these formative years. Where blended learning approaches offer the opportunity for students to scaffold their knowledge and to develop reflective learning practices, and can put these to use in a supportive class environment, it is likely to show enhanced learning outcomes.
'The pedagogy of legal reasoning: democracy, discourse and community' by Chloƫ J. Wallace in (2017) The Law Teacher comments
Learning legal reasoning is a central part of any undergraduate law degree and remains a threshold concept: one which is vital for any law student to grasp, but which is often difficult to explain. It is a form of reasoning which is very distinctive to the discipline. This article explores the applicability of learning theories typically used to ground pedagogy in higher education to the specific task of teaching legal reasoning. Constructivist or experiential theories of learning are widely used in higher education, but they need to be used with a clear focus on the specific nature of legal reasoning, which does not fit neatly within the assumptions about learning which underpin many constructivist approaches. Situated learning theories, which place emphasis on the role of the community in constructing knowledge, can also be of value. However, steps need to be taken to avoid replicating the hierarchy of the legal community within educational communities. Overall, the pedagogy of legal reasoning needs to pay attention to the specific nature of legal reasoning, to enable students to access the discourse of the legal community to use as a model, and to take students seriously as members of that community.
All these approaches have involved reflection on pedagogy and learning theory. However, less attention has been paid to pedagogy and learning theory within the most traditional activity of undergraduate legal education: the teaching of legal reasoning. Given that this remains a central part of what law graduates are expected to be able to do, reflection on its pedagogy is important.
In this article, the pedagogy of legal reasoning will be considered through discussion of theories of learning. An introductory section will focus on the nature of legal reasoning, taking an interpretive approach. Next, a range of learning theories will be analysed with emphasis on their applicability to legal reasoning. Finally, a range of strategies for teaching legal reasoning will be explored. Throughout, it will be argued that the specific nature of legal reasoning requires a discipline-specific approach to pedagogy, informed by a range of learning theories; used alone, the constructivist theories which dominate much writing about learning and teaching are inappropriate to the discipline.

29 March 2018

The Gresham Brief

'The Runaway Judge: John Grisham's Appearance in Judicial Opinions' by Nicholas Mignanelli in (2018) 48(3) University of Memphis Law Review comments
Each year, countless scholars publish articles in law reviews across the country hoping to have some impact on the way courts interpret and apply the law. To have one’s labors approvingly cited or discussed by a court is one of the highest compliments a legal scholar can receive. Thus, it is the height of irony that judicial opinions have discussed or alluded to the works of novelist John Grisham — an attorney who has never authored a law review article — over two dozen times. 
This study begins with an explanation of methodology and an annotated bibliography of the results. Next, the author discusses the various ways that courts have used Grisham’s works, categorizing each case according to its function. The author concludes with further speculation about why judges are drawn to Grisham’s novels.

Pelvic Mesh Inquiry Report

The Senate Community Affairs References Committee report on Number of women in Australia who have had transvaginal mesh implants and related matters notes evidence by Dr Wendy Bonython and myself.

The report features the following recommendations
R 1 Noting the vital role of adverse reporting in post-market surveillance, the committee recommends that the Australian Government, in consultation with the states and territories and the Medical Board of Australia, review the current system of reporting adverse events to the Therapeutic Goods Administration to: 
• implement mandatory reporting of adverse events by medical practitioners; 
• provide guidance on what constitutes an adverse event for use by consumers, medical practitioners and device sponsors; 
• improve awareness of the reporting system;and 
• examine options to simplify the reporting process; 
R 2  The committee recommends that the Therapeutic Goods Administration and the Australian Commission on Safety and Quality in Health Care develop an information sheet to be provided to recipients of patient cards for implantable devices providing guidance on appropriate action to take in the event of an adverse event, including guidance on seeking appropriate treatment and support and on reporting the event. 
R 3 The committee recommends that the Australian Government prioritise consideration of the implementation of Recommendation 22 of the report of the Review of Medicines and Medical Devices Regulation recommending the establishment of a registry for all high-risk implantable devices, together with consideration of the feasibility of establishing such a registry on a cost recovery basis, and provide to the Senate by 29 November 2018 a progress report on work to date. 
R 4  The committee recommends that the Medicare Benefits Schedule Taskforce prioritise release of the report of the Gynaecology Clinical Committee for consultation. 
R 5 The committee recommends that the Australian Government prioritise the establishment of a more comprehensive post-market monitoring scheme and provide to the Senate by 29 November 2018 a progress report on work undertaken to date. 
R 6 The committee recommends that the Australian Commission on Safety and Quality in Health Care prepare guidance material on effective informed consent processes, with a view to ensuring that a dialogue between a medical practitioner and patient should:
• clarify the rationale for the proposed treatment; 
• discuss the range of alternate treatment options available and their attendant risks and benefits; 
• discuss the likely success and potential complications of the recommended treatment as they relate to the individual patient; 
• provide an opportunity for the patient to ask questions; and 
• confirm that the individual patient has understood the information discussed. 
R 7 The committee recommends that treatment guidelines developed by the Australian Commission on Safety and Quality in Health Care should clearly indicate that transvaginal mesh implantation should only be undertaken with fully informed consent and as a last resort when other treatment options have been properly considered and determined unsuitable. 
R 8 The committee recommends that the medical professional specialist colleges and societies ensure that processes are in place to draw their members' attention to the resources released by the Australian Commission on Safety and Quality in Health Care and implement arrangements which require members to consider the resources in their practice. 
R 9  The committee recommends that the Commonwealth, state and territory health Ministers require that guidance developed by the Australian Commission on Safety and Quality in Health Care for the credentialing of medical practitioners who perform transvaginal mesh procedures should underpin credentialing processes in all public hospitals and work with private hospitals to encourage the adoption of a similar requirement. 
R 10  The committee recommends that medical professional colleges and specialist societies implement governance arrangements for transvaginal mesh procedures which require that their members: 
• are trained in the use of the specific device; 
• are adequately skilled to perform the specific procedure, including procedures for partial or full removal of transvaginal mesh devices; 
• work within a multidisciplinary team; 
• monitor and report patient outcomes; and 
• maintain a record of the outcomes of such procedures, including any complications. 
R 11  The committee recommends that Commonwealth, states and territory governments commission the Australian Commission on Safety and Quality in Health Care to undertake an audit of transvaginal mesh procedures undertaken and their outcomes since the introduction of transvaginal mesh devices for use in the Australian market. 
R 12  The committee recommends that the Department of Health work with the Medical Technology Association of Australia and the Medical Board of Australia to review the systems in place within the device manufacturing industry and the medical professions to support consistent, high ethical standards, with specific emphasis on systems in place to prevent the payment of inducements to medical professionals and teaching hospitals. xi 
R 13 The committee recommends that State and Territory governments continue to work with the Australian Commission on Safety and Quality in Health Care to review the provision of services for the use and removal of transvaginal mesh devices. In particular, the committee recommends that consideration be given to the establishment of:
• information and helplines that women who have received transvaginal mesh implants can contact for advice on the availability of treatment and support services, including financial support programs, in their state; 
• specialist counselling programs, to assist women who have sustained injuries following transvaginal mesh procedures; 
• specialist multidisciplinary units for the assessment and management of complications associated with transvaginal mesh procedures, comprising: 
• comprehensive diagnostic procedures, including relevant diagnostic imaging facilities and expertise; 
• specialist pain management expertise; and 
• high level expertise in the partial or full removal of transvaginal mesh; 
• advice and practical assistance for women who are seeking to access their medical records; and 
• the provision of further guidance for medical professionals on recording the use of implantable devices on medical records and reporting adverse events to the Therapeutic Goods Administration.

28 March 2018

Indigenous Incarceration

The Australian Law Reform Commission's Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples report (ALRC Report 133, 2017) is now available.

The ALRC's Terms of Reference state
 It is acknowledged that while laws and legal frameworks are an important factor contributing to over-representation, there are many other social, economic, and historic factors that also contribute. It is also acknowledged that while the rate of imprisonment of Aboriginal and Torres Strait Islander peoples, and their contact with the criminal justice system - both as offenders and as victims - significantly exceeds that of non-Indigenous Australians, the majority of Aboriginal and Torres Strait Islander people never commit criminal offences. 
Scope of the reference 
1. In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to:
a. Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody, specifically in relation to: i. the nature of offences resulting in incarceration, ii. cautioning, iii. protective custody, iv. arrest, v. remand and bail, vi. diversion, vii. sentencing, including mandatory sentencing, and viii. parole, parole conditions and community reintegration.
b. Factors that decision-makers take into account when considering (1)(a)(i-viii), including: i. community safety, ii. availability of alternatives to incarceration, Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines. Differences in the application of laws across states and territories. Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters. iii. the degree of discretion available to decision-makers, iv. incarceration as a last resort, and v. incarceration as a deterrent and as a punishment.
2. In conducting its Inquiry, the ALRC should have regard to existing data and research1 in relation to:
a. best practice laws, legal frameworks that reduce the rate of Aboriginal and Torres Strait Islander incarceration, 
b. pathways of Aboriginal and Torres Strait Islander peoples through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending, 
c. alternatives to custody in reducing Aboriginal and Torres Strait Islander incarceration and/or offending, including rehabilitation, therapeutic alternatives and culturally appropriate community led solutions, 
d. the impacts of incarceration on Aboriginal and Torres Strait Islander peoples, including in relation to employment, housing, health, education and families, and 
e. the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration including: i. the characteristics of the Aboriginal and Torres Strait Islander prison population, ii. the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment, and iii. the availability and effectiveness of culturally appropriate programs that intend to reduce Aboriginal; and Torres Strait Islander offending and incarceration. 
3. In undertaking this Inquiry, the ALRC should identify and consider other reports, inquiries and action plans including but not limited to:
a. the Royal Commission into Aboriginal Deaths in Custody, 
b. the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 1 August 2017), 
c. Senate Standing Committee on Finance and Public Administration’s Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services, 
d. Senate Standing Committee on Community Affairs’ inquiry into Indefinite Detention of People with Cognitive and Psychiatric impairment in Australia, 
e. Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities, 
f. reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 
g. the ALRC’s inquiries into Family violenceand Family violence and Commonwealth laws, and h. the National Plan to Reduce Violence against Women and their Children 2010-2022.
The ALRC should also consider the gaps in available data on Aboriginal and Torres Strait Islander incarceration and consider recommendations that might improve data collection. 
4. In conducting its inquiry the ALRC should also have regard to relevant international human rights standards and instruments. 
5. In undertaking this inquiry, the ALRC should identify and consult with relevant stakeholders including Aboriginal and Torres Strait Islander peoples and their organisations, state and territory governments, relevant policy and research organisations, law enforcement agencies, legal assistance service providers and the broader legal profession, community service providers and the Australian Human Rights Commission.
The ALRC recommendations are
  4. Justice Reinvestment 
R 4–1 Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment. Its functions should include: · providing technical expertise in relation to justice reinvestment; · assisting in developing justice reinvestment plans in local sites; and · maintaining a database of evidence-based justice reinvestment strategies. The justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership. 
R 4–2 Commonwealth, state and territory governments should support justice reinvestment trials initiated in partnership with Aboriginal and Torres Strait Islander communities, including through: · facilitating access to localised data related to criminal justice and other relevant government service provision, and associated costs; · supporting local justice reinvestment initiatives; and · facilitating participation by, and coordination between, relevant government departments and agencies. 
5. Bail 
R 5–1 State and territory bail laws should be amended to include standalone provisions that require bail authorities to consider any issues that arise due to a person’s Aboriginality, including cultural background, ties to family and place, and cultural obligations. These would particularly facilitate release on bail with effective conditions for Aboriginal and Torres Strait Islander people who are accused of low- level offending. The Bail Act 1977 (Vic) incorporates such a provision. As with all other bail considerations, the requirement to consider issues that arise due to a person’s Aboriginality would not supersede considerations of community safety. 
R 5–2 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to: · develop guidelines on the application of bail provisions requiring bail authorities to consider any issues that arise due to a person’s Aboriginality, in collaboration with peak legal bodies; and · identify gaps in the provision of culturally appropriate bail support programs and diversion options, and develop and implement relevant bail support and diversion options. 
6. Sentencing and Aboriginality 
R 6–1 Sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples. 
R 6–2 State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations, should develop and implement schemes that would facilitate the preparation of ‘Indigenous Experience Reports’ for Aboriginal and Torres Strait Islander offenders appearing for sentence in superior courts. 
Recommendation 6–3 State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations and communities, should develop options for the presentation of information about unique systemic and background factors that have an impact on Aboriginal and Torres Strait Islander peoples in the courts of summary jurisdiction, including through Elders, community justice groups, community profiles and other means. 
7. Community-based Sentences 
R 7–1 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to improve access to community-based sentencing options for Aboriginal and Torres Strait Islander offenders, by: · expanding the geographic reach of community-based sentencing options, particularly in regional and remote areas; · providing community-based sentencing options that are culturally appropriate; and · making community-based sentencing options accessible to offenders with complex needs, to reduce reoffending. 
R 7–2 Using the Victorian Community Correction Order regime as an example, state and territory governments should implement community-based sentencing options that allow for the greatest flexibility in sentencing structure and the imposition of conditions to reduce reoffending. 
R 7–3 State and territory governments and agencies should work with relevant Aboriginal and Torres Strait Islander organisations to provide the necessary programs and support to facilitate the successful completion of community- based sentences by Aboriginal and Torres Strait Islander offenders. 
R 7–4 In the absence of the availability of appropriate community- based sentencing options, suspended sentences should not be abolished. 
R 7–5 In the absence of the availability of appropriate community- based sentencing options, short sentences should not be abolished. 
8. Mandatory Sentencing 
R 8–1 Commonwealth, state and territory governments should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples. 
9. Prison Programs and Parole 
R 9–1 State and territory corrective services agencies should develop prison programs with relevant Aboriginal and Torres Strait Islander organisations that address offending behaviours and/or prepare people for release. These programs should be made available to: · prisoners held on remand; · prisoners serving short sentences; and · female Aboriginal and Torres Strait Islander prisoners. 
R 9–2 To maximise the number of eligible Aboriginal and Torres Strait Islander prisoners released on parole, state and territory governments should: · introduce statutory regimes of automatic court-ordered parole for sentences of under three years, supported by the provision of prison programs for prisoners serving short sentences; and · abolish parole revocation schemes that require the time spent on parole to be served again in prison if parole is revoked. 
10. Access to Justice 
R 10–1 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to: · establish interpreter services within the criminal justice system where needed; and · monitor and evaluate their use. 
R 10–2 Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts. These courts should incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate. 
R 10–3 Relevant Aboriginal Torres Strait Islander organisations should play a central role in the design, implementation and evaluation of specialist Aboriginal and Torres Strait Islander sentencing courts. Recommendation 10–4 Where not already in place, state and territory governments should introduce special hearing processes to make qualified determinations regarding guilt after a person is found unfit to stand trial. 
R 10–5 Where not already in place, state and territory governments should implement Recommendation 7–2 of the ALRC Report Equality, Capacity and Disability in Commonwealth Laws to provide for a fixed term when a person is found unfit to stand trial and ensure regular periodic review while that person is in detention. 
11. Aboriginal and Torres Strait Islander Women 
R 11–1 Programs and services delivered to female Aboriginal and Torres Strait Islander offenders within the criminal justice system—leading up to, during and post-incarceration—should take into account their particular needs so as to improve their chances of rehabilitation, reduce their likelihood of reoffending and decrease their involvement with the criminal justice system. Such programs and services, including those provided by NGOs, police, courts and corrections, must be: · developed with and delivered by Aboriginal and Torres Strait Islander women; and · trauma-informed and culturally appropriate. 
R 11–2 Police engaging with Aboriginal and Torres Strait Islander people and communities should receive instruction in best practice for handling allegations and incidents of family violence—including preventative intervention and prompt response—in those communities. 
12. Fines and Driver Licences 
R 12–1 Fine default should not result in the imprisonment of the defaulter. State and territory governments should abolish provisions in fine enforcement statutes that provide for imprisonment in lieu of, or as a result of, unpaid fines. 
R 12–2 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations to develop options that: · reduce the imposition of fines and infringement notices; · limit the penalty amounts of infringement notices;  · avoid suspension of driver licences for fine default; and · provide alternative ways of paying fines and infringement notices. 
R 12–3 State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to identify areas without services relevant to driver licensing and to provide those services, particularly in regional and remote communities. 
R 12–4 State and territory governments should review the effect on Aboriginal and Torres Strait Islander peoples of statutory provisions that criminalise offensive language with a view to: · repealing the provisions; or · narrowing the application of those provisions to language that is abusive or threatening. 
13. Alcohol 
R 13–1 All initiatives to reduce the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities should be developed with, and led by, these communities to meet their particular needs. 
R–2 Commonwealth, state and territory governments should enable and provide support to Aboriginal and Torres Strait Islander communities that wish to address alcohol misuse to: · develop and implement local liquor accords; and/or · develop plans to prevent the sale of full strength alcohol or reduce the availability of particular alcohol ranges or products within their communities. 
14. Police Accountability 
R 14–1 Commonwealth, state and territory governments should review police procedures and practices so that the law is enforced fairly, equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples. 
R 14–2 To provide Aboriginal and Torres Strait Islander people and communities with greater confidence in the integrity of police complaints handling processes, Commonwealth, state and territory governments should review their police complaints handling mechanisms to ensure greater practical independence, accountability and transparency of investigations. 
R 14–3 Commonwealth, state and territory governments should introduce a statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service, or equivalent service, as soon as possible after an Aboriginal and Torres Strait Islander person is detained in custody for any reason—including for protective reasons. A maximum period within which the notification must occur should be prescribed. 
R 14–4 In order to further enhance cultural change within police that will ensure police practices and procedures do not disproportionately contribute to the incarceration of Aboriginal and Torres Strait Islander peoples, the following initiatives should be considered: · increasing Aboriginal and Torres Strait Islander employment within police; · providing specific cultural awareness training for police being deployed to an area with a significant Aboriginal and Torres Strait Islander population; · providing for lessons from successful cooperation between police and Aboriginal and Torres Strait Islander peoples to be recorded and shared; · undertaking careful and timely succession planning for the replacement of key personnel with effective relationships with Aboriginal and Torres Strait Islander communities; · improving public reporting on community engagement initiatives with Aboriginal and Torres Strait Islander peoples; and · entering into Reconciliation Action Plans. 
15. Child Protection and Adult Incarceration 
R 15–1 Acknowledging the high rate of removal of Aboriginal and Torres Strait Islander children into out-of-home care and the recognised links between out-of-home care, juvenile justice and adult incarceration, the Commonwealth Government should establish a national inquiry into child protection laws and processes affecting Aboriginal and Torres Strait Islander children. 
16. Criminal Justice Targets and Aboriginal Justice Agreements 
R 16–1 The Commonwealth Government, in consultation with state and territory governments, should develop national criminal justice targets. These should be developed in partnership with peak Aboriginal and Torres Strait Islander organisations, and should include specified targets by which to reduce the rate of: · incarceration of Aboriginal and Torres Strait Islander people; and · violence against Aboriginal and Torres Strait Islander people. 
R 16–2 Where not currently operating, state and territory governments should renew or develop an Aboriginal Justice Agreement in partnership with relevant Aboriginal and Torres Strait Islander organisations.

26 March 2018

Australian Competition Law Penalties

Today's OECD report on Pecuniary Penalties for Competition Law Infringements in Australia compares
the pecuniary sanctions regime for competition law infringements in Australia to that of a number of other major OECD jurisdictions. It has been prepared based on an analysis of Australia’s pecuniary sanctions regime and its comparison with pecuniary sanctions regimes in the European Union, Germany, Japan, Korea, the United Kingdom and the United States. It builds on previous work on ‘Sanctions in Antitrust Cases’ pursued in the context of the 2016 OECD Global Forum on Competition. 
The authors comment
Despite Australia’s competition law system being in line with international practice, it has characteristics that differentiate it from other regimes. Notable among such differences is the method for applying sanctions. While in most regimes pecuniary penalties are set by reference to a detailed and publically available methodology that focuses largely on the size of the infringing company, in Australia the amount of pecuniary penalties is determined by the Federal Courts following an ‘instinctive synthesis’ of various factors. These differences do not prevent Australia from imposing substantial and deterrent sanctions for breaches of competition law. However, and as described in this Report, the maximum penalties that are imposed in Australia for competition law infringements are lower than in comparable jurisdictions.
In recent years, important cases have been increasingly brought before the Australian courts for decisions about sanctions for competition law infringements. This accumulated experience provides an opportunity for retrospective and comparative review, which is the objective of this report that compares Australia’s framework and experience with competition law sanctions to the frameworks and experiences of other jurisdictions. The OECD jurisdictions selected for comparison are the European Union, Germany, Japan, Korea, the United Kingdom and the United States. These jurisdictions include leading large jurisdictions, such as the European Union and the United States, as well as smaller jurisdictions with advanced competition law regimes, such as Germany, Japan, Korea and the United Kingdom. Together, they provide a good sample of established competition jurisdictions, while also providing a valuable mix of characteristics that reflect the variety of competition law regimes across the world and illustrate the breadth of approaches in different legal systems.
Australia belongs to the set of jurisdictions where the competition authority brings cases for enforcement action before a court, which acts as a decision-maker with respect to the alleged breach of competition law and the applicable penalties. It has a bifurcated system where the adjudicative role in competition law matters is divided between the Australian Competition Tribunal and the Federal Courts. The latter have jurisdictions regarding enforcement proceedings undertaken by the Australian Competition and Consumer Commission (ACCC) for breaches of the competition provisions of the Competition and Consumer Act.
Civil penalties for competition law infringements in Australia have as their primary objective deterrence, both general and specific. Pecuniary penalties are one of a number of civil and criminal sanctions that Australian courts can impose for such infringements. When determining the amount of a pecuniary penalty, Australian courts take into account a number of different criteria and principles – including the course of conduct principle (where appropriate), the totality principle and the parity principle. The judicial assessment of the appropriate penalty is a discretionary judgement synthesising all factors and principles relevant to a particular case in a process of ‘instinctive synthesis’. While the determination of the type and amount of penalties imposed on contraveners for infringements of competition laws is an exclusive prerogative of the courts, the ACCC and respondents may make joint submissions to the court in which they propose an agreed civil penalty (and other relief) for the courts’ consideration. If the court is persuaded that the agreed penalty is an appropriate penalty, it is consistent with principle, and highly desirable in practice, for the court to accept the parties’ proposal and impose the agreed penalty
All the comparator jurisdictions share with Australia the goal of ensuring deterrence of competition law violations through pecuniary penalties. Unlike Australia, however, all comparator jurisdictions deploy structured methods for determining the level of pecuniary sanctions. These methods require the calculation of a base fine, generally based on some measure of the volume of affected sales in the country in question over the time period of the legal violation. This base fine can then be modified to take account of mitigating and aggravating circumstances and, in many jurisdictions, also to reflect other factors deemed of importance. Such methods are reflected in publically available guidelines. The existence of structured methods reflected in public guidelines ensures predictability, the uniform treatment of companies for comparable violations, and that fines reach levels that can enhance deterrence.
This report compares the level of actual fines in Australian competition law sanction cases to the level that would apply in the comparator jurisdictions. The result of this comparison is that the amount of pecuniary penalties imposed for competition law infringements in Australia is significantly lower, in both absolute and relative terms, than the amounts imposed in other OECD jurisdictions, particularly as regards large companies or conduct that lasted for a long period of time. This is despite pecuniary penalties in Australia and all reviewed jurisdictions: (i) ostensibly pursuing the same objective, deterrence; (ii) being set by reference to similar criteria – i.e. the corporation’s turnover or the illicit commercial gains obtained through the anticompetitive conduct; and (iii) relying on a broadly similar list of mitigating and aggravating factors when determining the final amount of a pecuniary penalty. Looking at the amounts of penalties imposed in Australia in a number of cartel cases up to November 2017 – which exclude more recent cases that are still under appeal – and the base fine that would have been applied in the comparator jurisdictions, the average pecuniary penalty in Australia was AUD 25.4 million (Australian dollars), while the average base penalty in the comparator jurisdictions would have been AUD320.4 million. Even considering that these calculations are rough estimates that do not take into account aggravating or mitigating circumstances, this means that the average Australian penalty would have to be increased 12.6 times to reach the level of the average penalty in the comparator jurisdictions. This is despite the fact that Australia’s legal regime seems to allow for the imposition of pecuniary penalties at the same level or even higher than in the comparator jurisdictions. This disparity in the amount of pecuniary penalties imposed in Australia and elsewhere has the potential to limit the effective deterrence of sanctions against competition law infringements in Australia.
Ultimately, the two main differences that this Report finds between Australia and the comparator jurisdictions are that: (i) fines in Australia seem to be lower, at least at the higher end of imposed penalties; (ii) Australia does not follow a structured methodology for the determination of pecuniary penalties. While the Report is unable to conclude that there is a causal relationship between these two phenomena, it is plausible that they are related.
The Report ultimately recommends that Australian authorities consider actions to ensure that pecuniary penalties better deter anticompetitive conduct. Such recommendations include, among others, increasing awareness of and taking into account international practices in the determination of pecuniary penalties; linking the amount of the penalty to the economic impact of the sanctioned company’s conduct and the seriousness and duration of the infringement, and decoupling it from the sanction amounts imposed for similar anticompetitive conduct in the past; and studying whether to develop and adopt a structured method for the calculation of the amount of pecuniary penalties – including, potentially, the identification of a base pecuniary penalty. Public guidance could create a more transparent and predictable penalty framework, which, in turn, could be useful for companies and decision makers, ultimately promoting deterrence.