07 December 2018

Education Sector Regulation

The spirited dissenting report by ALP senators in the Senate Red Tape Committee report on Effect of red tape on private education states
Privatisation and deregulation in the vocational education and training (VET) sector has been a dismal failure. 
Experience has repeatedly shown that rent-seeking, and access to government funding in VET with limited regulation, has led to extreme outbreaks of malfeasance by unscrupulous private, profit seeking providers. 
VET FEE-HELP is the most recent, but not the only, example of the runaway rorting by unscrupulous for-profit training providers putting profit before the national interest. 
As a consequence of rorting in the VET sector the reputation of the sector has been marred by: dismal completion rates; increased course costs; burgeoning and unfair student debt; insolvency of major private colleges; and predatory behaviour by unscrupulous registered training organisations to enrol students and access government funding. 
VET FEE-HELP was introduced by the Coalition in 2008 and opened up in 2012. In the five years under Labor, loans totalled $1.4 billion. Under three years of the Coalition loans skyrocketed by a further $5.8 billion. 
The Australian National Audit Office has reported that the Government Actuary assessed that $1.2 billion of loans were wrongly issued under VET FEE-HELP. The number of people misled and subjected to unfair debts is yet to be determined. 
It is estimated that close to 75 per cent of all VET FEE-HELP funding went to private providers. This included $600 million to just one provider, Careers Australia, which subsequently went into receivership leaving 18 000 students stranded without qualifications and holding unfair debts, 1000 employees robbed of their entitlements, and money owing to suppliers. 
In addition to the scandalous provider behaviour exhibited in the VET sector, there is evidence that privatisation in VET has led to widespread and persistent concerns relating to quality, and in particular the development of low quality training markets driven by low-cost, high-profit provision. For example the prevalence of low cost, short courses was reported in a series of strategic reviews by Australian Skills Quality Authority of the aged and community care, early childhood education and care, and the construction and security industries. 
It is clear that sound and fit-for-purpose regulatory standards are fundamental to ensuring quality delivery and for ensuring consumer protection in vocational education and training. 
If public money is to flow to educational organisations then those organisations must be of the highest standards and the bar for entry must be appropriately high. 
Labor recognises that the current design of the VET system is flawed. The reliance on a market to deliver quality vocational education and valued training qualifications is one of many factors that require close examination and review. 
As such, no amount of regulatory oversight and intervention will adequately correct the current problems in the vocational education system. Importantly, regulation reduction will simply promote reduced oversight and increased exploitation of students. 
In government Labor will establish an independent and comprehensive inquiry into the post-secondary education system, ensuring that public TAFEs and universities sit at the centre of the system as anchoring and publicly accountable institutions. 
That inquiry will make recommendations about regulation and consumer protection, in light of the review of the whole post-secondary education system. 
There's a less splenetic account in the Braithwaite report earlier this year noted here.

The dissenting report - no surprises with an election coming up - goes on to state -
Higher Education 
Australia has a well-established higher education system with a strong public university sector and a number of quality private providers. Unlike VET, public universities have not been subject to the same level of private competition and they have benefited significantly from reforms put in place by a number of Labor governments. 
Labor's policy in 2009 to uncap university places (through the demand-driven system) has been one of the greatest changes seen to higher education in this country in a generation. 
This reform, in conjunction with greater funding for access and equity opened the door of university to more than 200 000 more Australians. Our reforms also saw increased participation from traditionally underrepresented groups. Between 2008 and 2016, we've seen: • Low SES undergraduate student enrolments increase by 55 per cent; • Indigenous undergraduate student enrolments grow by 89 per cent; • Enrolments of regional and remote students increase by 48 per cent; and • Enrolments of undergraduate students with a disability more than double. 
Not only did we boost participation, the demand-driven system drove innovation in modes of delivery and industry collaboration. This was noted by the Liberals' 2014 review of the demand-driven system. 
In 2011, Labor introduced a national system of regulation with the creation of the Tertiary Education Quality and Standards Agency – fundamentally streamlining regulation of the sector, reducing the number of jurisdictions from nine to one. The regulatory system was also designed to be proportionate and risk-based. 
Labor believes the national regulatory system in higher education needs more time to mature. In order to ensure the settings continue to be fit-for-purpose, we will examine regulation as part of our once-in-a-generation national inquiry into post-secondary education in Australia.
The overall report features the following recommendations -
Recommendation 1 
The committee recommends that the Australian Government, through the Council of Australian Governments, initiate a review of Commonwealth and state-based regulation affecting the private education sector, to identify opportunities for regulation and red tape reductions. 
Recommendation 2 
In conjunction with Recommendation 1, the committee recommends that the Department of Education and Training review the findings and recommendations of the 2013 Review of Higher Education Regulation Report, to assist in the identification of deregulation opportunities for the higher education sector. 
Recommendation 3 
In conjunction with Recommendation 1, the committee recommends that Australian governments consider the effectiveness of a 'one-size-fits-all' approach to regulation and explore options to implement better risk-based regulation. 
Recommendation 4 
The committee recommends that the Department of Education and Training, in conjunction with the Office of Best Practice Regulation, review its Regulatory Impact Statement processes, to improve identification and quantification of regulatory compliance costs in the private education sector. 
Recommendation 5 
The committee recommends that the Department of Education and Training schedule a two-year review of the Nationally Consistent Collection of Data on School Students with Disability, including audit options to ensure the consistency of quality data collection. 
Recommendation 6 
The committee recommends that the Australian Government initiate a five-year review of the Regulator Performance Framework, to identify opportunities to improve Commonwealth regulators' performance. 
Recommendation 7 
The committee recommends that the Australian Government review the assumptions underpinning the 25 per cent loan fee and if they are not substantiated with statistical information, take action to abolish this fee.

05 December 2018

Labelling and Fish-oil Burp-back

A "a salutary warning against the perils" of misleading labelling?

In Nature's Care Manufacture Pty Ltd v Australian Made Campaign Limited [2018] FCA 1936 Perram J comments
When is it permissible to claim that goods manufactured in Australia from ingredients sourced from overseas are ‘Made in Australia’? That is the question in this case. The Applicant is a manufacturer of complementary medicines. One of its product lines is a soft-gel capsule marketed as ‘Fish Oil + Vitamin D’ which is marketed to the public by the Applicant under its ‘Healthy Care Australia’ brand ... 
For present purposes three aspects of the label should be noted. First, it bears the well-known ‘Australian made and owned’ kangaroo logo (‘Logo’) on the bottom right. Secondly, it indicates that each capsule contains 1g of fish oil and 5µg of vitamin D. Thirdly, it is consistent with a label which suggests that what is inside the jar is fish oil and vitamin D. 
The issues in this case concern the Applicant’s claim by its use of the Logo that the capsules are made in Australia. The Logo is a registered certification trade mark owned by the Respondent who is responsible for regulating its use including by the issue of 12-month renewable licences which allow businesses to use the Logo. The Applicant has been licensed to use the mark in relation to a number of its products since 2012 including in respect of its Healthy Care Fish Oil and Vitamin D capsules. For reasons to which I will briefly return at the end of these reasons, the Respondent does not accept that the Applicant’s Fish Oil and Vitamin D capsules are manufactured in Australia and has indicated that it does not propose to licence the Applicant to use the Logo on the relevant products after 31 December 2018. 
The Applicant does not agree with the Respondent’s position and now seeks declaratory relief which would vindicate its view that its capsules are made in Australia. The Respondent’s position is, to a large extent, driven by views published by the Australian Competition and Consumer Commission (‘ACCC’) about when a claim that a product is manufactured in Australia may be made. As a result, the ACCC intervened to make substantive submissions and the Respondent filed a submitting notice. 
The central issue in this case is, therefore, whether it is accurate to say that the capsules are made in Australia. It arises this way. The fish oil is imported into Australia by the Applicant from Chile in 200kg drums. Fish oil is a pale yellow oil with a vague but distasteful odour of fish. The vitamin D (more precisely, vitamin D3 or ‘Coleralciferol’) is imported from China in 25kg or 1kg drums. It is a white crystalline powder with no odour according to the parties’ witnesses. Having smelt Exhibit MX-4 (Vitamin D3 Sample) I am not sure I agree but this is of no moment. 
The soft-gel capsules (into which the fish oil and vitamin D would be eventually inserted) were made from gelatine sheets which were themselves manufactured from gelatine powder, purified water and glycerol. The glycerol is imported from Indonesia in 220kg drums but the water and the gelatine powder were sourced in Australia. 
It will be seen that the Applicant’s product is quite cosmopolitan in terms of the sources of its constituent elements. However, those elements are put together in Australia by the Applicant.
The Court goes on to state
The Australian Consumer Law (‘ACL’) is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACL includes a number of prohibitions on engaging in misleading and deceptive conduct. Amongst these is the central prohibition in s 18 (‘A person shall not, in trade or commerce, engage in conduct which is misleading or deceptive or likely to mislead or deceive’). There are other prohibitions of a more specific nature but these may be disregarded for present purposes. 
The ACL contains a number of rules about specific conduct which is taken not to be a breach of s 18 (and the other related prohibitions). One of these rules insulates claims that particular goods were manufactured in a particular country. Provided its requirements are satisfied such a claim is taken not have been a breach of s 18 et al. Because of its operation in rescuing conduct from being subject to s 18 et al, provisions of this kind are frequently referred to as safe harbour provisions. The relevant safe harbour provision is s 255. ... 
one can only represent that one’s goods are made in Australia if the goods ‘were last substantially transformed’ in Australia and the effect of s 255(2)(b) is that goods will only be ‘substantially transformed’ in Australia if it can be said – and these are the critical words in the case – that: 
"...as a result of one or more processes undertaken in [Australia], the goods are fundamentally different in identity, nature or essential character from all of their ingredients or components that were imported into [Australia]." 
This requires a comparison between the ‘ingredients’ which were imported and the goods which were produced as a result of the ‘processes undertaken’. The comparison requires one to ask whether the manufactured goods differ ‘fundamentally’ from the imported ingredients ‘in identity, nature or essential character’.
Perram J states
I do not accept that there is any change in any of the qualities of the fish oil as a result of its mixing with the vitamin D3. It is still, when all is said and done, fish oil and there is no chemical change to its molecular structure or fundamental change to its chemical qualities. I also do not accept that there is any change to the vitamin D3. There was a hint at the start of the case than an argument might have been pursued that the solution of vitamin D3 into the fish oil improved the bioavailability of the vitamin D3. However, Professor Barrow gave evidence to the contrary and the point was not thereafter pursued. I therefore accept that the vitamin D3 which is imported into Australia is the same as the vitamin D3 which is found in the fish oil within the capsules. ...
The Court notes
I find that the fish oil imported from Chile smells unpleasant. I was provided with a sample of this fish oil as Exhibit MX-3 and have smelt it. It is smells like a cross between stale fish and vinyl. My associate thinks it smells like semi-fermented grass cuttings revealing his more sophisticated nose. I have not tasted it but I am prepared to infer that it would be very unpleasant to consume even in small doses. I also accept that placing the fish oil in the soft-gel capsules has the effect of making palatable and flavourless a product which is essentially very unpleasant. It has another benefit too. By sealing the fish oil in the capsules the speed of oxidation is reduced and, along with that, the rate of deterioration in the fish oil caused by exposure to light. This is not the case with the liquid fish oil imported from Chile. ... 
In one of those paragraphs that delight law students Perram J then states
There is a related issue. Professor Barrow properly drew my attention to the phenomenon of ‘burp-back’. ‘Burp-back’ occurs when a soft-gel capsule containing something malodorous such as fish oil is consumed. Once the capsule descends into the digestive depths of the stomach the soft-gel dissolves releasing its noxious payload the odour of which, thus liberated, rises up the gullet to the mouth where, unsought and unwelcome, it presents itself as a salutary warning against the perils of belching. Professor Barrow succinctly described it as ‘unpleasant fishy burping’. Just because the soft-gel fails in the inhospitable regions of the upper reaches of the alimentary canal does not mean that for many people the capsule is not effective to protect them from the smell of the fish oil. It does mean, however, that it cannot be entirely correct to say that encapsulation has changed the nature of the fish oil so that its odour is no longer present. It can be present when the fish oil is extracted from the capsules and it may emerge if a consumer should burp. 
Onwards!
So the question is whether in light of those findings one can say that the capsules ‘are fundamentally different in identity, nature or essential character’ from the fish oil, vitamin D3 and glycerol which were imported in Australia. This is a question of statutory interpretation. I take the position to be that one starts, as a beginning point, with the ordinary meaning of the words on the page and asks whether some other meaning is required by the statutory context where that concept includes, if they throw any light on the issue, the text and architecture of the surrounding statute, the legislative history and other extrinsic materials such as second reading speeches and explanatory memoranda: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at 940-941 [14], citing CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408.
Perram J concludes -
The application of s 255(2)(b) to the facts  
What s 255(2)(b) requires is a fundamental change in the essential characteristics of the imported ingredients collectively when compared to the manufactured goods. In a sense this makes no strict sense because it is impossible to compare the essential characteristics of a combined good with the essential characteristics of each of its constituent elements in the same way that it is idle to ask whether a car is a tyre. In this case, for example, it is nonsensical to ask whether the capsules differed in their essential characteristics from the glycerol. Plainly a capsule containing fish oil and vitamin D is fundamentally different to a barrel of glycerol. However, what is required by s 255(2)(b) is an overall assessment: the manufactured goods must be compared to the imported ingredients collectively and an overall opinion formed as to whether they are fundamentally different in nature, identity or essential character. 
In this case, the answer to that question is clear. The fish oil and vitamin D3 in the capsules is identical to the fish oil imported from Chile and the vitamin D3 imported from China. The only differences between the capsules and the fish oil and vitamin D3 are: (a) the fish oil and vitamin D3 are mixed together with no chemical change to either; (b) the capsules generally conceal the bad flavour of the fish oil (although not invariably as in some circumstances the capsule is deliberately pierced and there remains the ever-present threat of burp-back); (c) the capsules provide an easy means of delivering a 5µg dose of vitamin D3 which could not practically be achieved using the substance in its raw crystalline form; (d) the capsule retards the oxidation and degradation of the fish oil; and (e) the capsule is made from gelatine sheets. 
However, those matters do not establish that the capsules are fundamentally different to the fish oil or vitamin D3 which were imported in their nature, identity or essential character. Far from it. What was imported from Chile and China was fish oil and vitamin D3. What is being sold is as is what is being marketed, that is capsules containing ‘Fish Oil and Vitamin D’. 
That leaves the question of the glycerol. I accept that the glycerol is fundamentally different in nature in the capsules to the form it was in when imported from Indonesia as a liquid in a drum. It is now part of a gel. However, when viewed overall I do not regard the role of the glycerol as being significant. Granted that the glycerol has been substantially altered, I do not accept that, overall, the capsules are fundamentally different in their nature identity or essential character from the fish oil, vitamin D3 and glycerol imported into Australia. 
8. Result 
The safe harbour is therefore not available and the claims made by the Applicant are not protected by s 255 of the ACL. That conclusion is sufficient to dispose of the proceeding which should be dismissed. 
Had I been satisfied that s 255 did protect the Applicant’s claim to be made in Australia I would have been satisfied of its entitlement to declaratory relief. Very briefly the reasons for this are that the Respondent has indicated it will not continue to licence the Applicant to use the Logo if to do so would be contrary to the views of the ACCC. The ACCC publicly indicated in March 2018 that it does not accept that the encapsulation of imported substances fell within the safe harbour provisions even with the addition of bulking oils. It gave the particular example of a capsule of imported krill oil as a good which would not satisfy the test and also rejected the view that it would make any difference if the gelatine casing were itself made from imported gelatine. The consequence of that stance was that the Respondent will not licence the Applicant beyond 31 December 2018 to use the Logo unless the Applicant is able to reverse the ACCC’s position. For that reason, I would have granted the relief sought had I reached the opposite view about the operation of s 255(2)(b). h

04 December 2018

Traffic Offender Sentencing

The NSW Sentencing Council has released a discussion paper on the sentencing of repeat traffic offenders.

The paper reflects terms of reference made in April this year -
The Sentencing Council is to review the sentencing of recidivist traffic offenders who may pose an ongoing risk to the community and make recommendations for reform to promote road safety. In conducting the review, the Council should:
1. Provide sentencing statistics on such offenders and analyse them in terms of relevant offender characteristics; 
2. Consider the principles the courts should apply when sentencing such offenders; 
3. Have regard to the availability of, and relevant findings on, driver intervention programs and other initiatives in NSW and other comparable jurisdictions; 
4. Consult with road safety and other experts, and consider international best practice, on how best to deter recidivist traffic offenders from reoffending and encourage safe driving practices; and 
5. Have regard to any other matter the Council considers relevant. 
The paper features the following questions
1. Introduction 
1.1 Identifying repeat offending (1) Is the current list of offences that make up repeat offending for the purposes of the Road Transport Act 2013 (NSW) appropriate? (2) If not, what changes should be made to this list of offences? (3) What other ways are there to identify repeat traffic offending that gives rise to an ongoing risk of harm to the community? 
1.2 Dealing with repeat driving offenders Considering the existing and possible sentencing and other available responses to repeat driving offenders (outlined in chapters 4-6): (1) What options are appropriate for sentencing repeat driving offenders who may pose an ongoing risk to the community? (2) What sorts of offenders should they target? (3) What changes could be made to the law to make it more effective in dealing with repeat driving offenders who may pose an ongoing risk to the community? 
2. Driving offences involving harm or a high risk of harm 
2.1 Driving offences resulting in death (1) Are the maximum penalties for driving offences resulting in death appropriate? If not, what should they be? (2) Are the sentencing outcomes for driving offences resulting in death appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
2.2 Driving offences resulting in injury (1) Are the maximum penalties for driving offences causing injury appropriate? If not, what should they be? (2) Are the sentencing outcomes for driving offences causing injury appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
2.3 Identifying other offences that carry a high risk of harm (1) What other driving offences should be considered in the group of offences carrying a high risk of harm? (2) Are the maximum penalties for these other offences appropriate? If not, what should they be? (3) Are the sentencing outcomes for these other offences appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved?   
2.4 Speeding offences (1) Are the maximum penalties for high range speeding offences appropriate? If not, what should they be? (2) Are the sentencing outcomes for high range speeding offences appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
2.5 Alcohol and drug-related driving offences (1) Are the maximum penalties for alcohol and drug related driving offences appropriate? If not, what should they be? (2) Are the sentencing outcomes for alcohol and drug related driving offences appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
2.6 Fatigue related driving offences (1) Are the maximum penalties for fatigue related driving offences appropriate? If not, what should they be? (2) Are the sentencing outcomes for fatigue related driving offences appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
2.7 Driving offences carrying a high risk of harm (1) Are the maximum penalties for driving offences carrying a high risk of harm appropriate? If not, what should they be? (2) Are the sentencing outcomes for driving offences carrying a high risk of harm appropriate? Bearing in mind the availability of new sentencing orders, what should the sentencing outcomes be, and how could they be achieved? 
3. Sentencing principles 
3.1 Guideline judgments (1) Do the guideline judgments on dangerous driving and high range prescribed concentration of alcohol continue to be appropriate? (2) If not, how should they be changed? (3) What other driving offences could be subject to guideline judgments? (4) What should those guidelines contain? 
3.2 Objective circumstances (1) Are the sentencing principles that relate to objective circumstances appropriate for dealing with repeat driving offenders? (2) If not, what changes should be made and how could they be achieved? xii NSW Sentencing Council 
3.3 Subjective circumstances (1) Are the sentencing principles that relate to subjective circumstances appropriate for dealing with repeat driving offenders? (2) If not, what changes should be made and how could they be achieved? 
3.4 Other considerations (1) Are the other considerations listed in paragraphs [3.52] – [3.61] appropriate for dealing with repeat driving offenders? (2) If not, what changes should be made and how could they be achieved? 
3.5 Repeat offending (1) Are the sentencing principles relating to repeat offending appropriate for dealing with repeat driving offenders? (2) If not, what changes should be made and how could they be achieved? 
4. Fines and penalty notices 
4.1 Fines and penalty notices (1) How effective are fines in dealing with repeat traffic offenders? (2) How effective are penalty notices in dealing with repeat traffic offenders? 
5. Suspension, disqualification and unauthorised driving 
5.1 Licence suspension (1) Does the system of licence suspension for driving offences adequately deal with repeat traffic offenders? (2) How could the current system be adjusted to deal with repeat traffic offenders more effectively? 
5.2 Licence suspension (1) Does the system of licence suspension for driving offences adequately deal with repeat traffic offenders? (2) How could the current system be adjusted to deal with repeat traffic offenders more effectively? 
5.3 Penalties for unauthorised driving (1) Does the current system of penalties for unauthorised driving help prevent repeat driving offences? (2) What changes could be made to help the system prevent repeat driving offences more effectively? 
6. Special penalties and interventions for driving offences 
6.1 Ignition interlock programs (1) Is the NSW mandatory alcohol interlock program effective in dealing with repeat traffic offending? If so, why? If not, why not? (2) What changes could be made to the NSW mandatory alcohol interlock program to reduce repeat traffic offending? 
6.2 Vehicle sanctions (1) Is the system of vehicle sanctions in NSW effective in dealing with repeat offending? If so, why? If not, why not? (2) What changes could be made to the system of vehicle sanctions to reduce repeat offending? 
6.3 Intelligent speed adaptation systems (1) Would a system of intelligent speed assistance technology be effective in dealing with repeat traffic offending? If so, why? If not, why not? (2) What system of intelligent speed assistance technology could be introduced in NSW to deal with repeat traffic offending? 
6.4 Specialist traffic courts or lists (1) Would a specialist traffic court or list be effective in dealing with repeat traffic offending? If so, why? If not, why not? (2) What type of specialist traffic court or list could be introduced in NSW to deal with repeat traffic offending? 
6.5 Prevention courses (1) How effective are the various prevention courses for traffic offenders in NSW? (2) What could be done to make existing courses more effective in reducing recidivist traffic offending? (3) What further courses could be introduced to help reduce recidivist traffic offending? In what circumstances could they be most effectively deployed? 
6.6 Stricter penalties (1) Should stricter penalties be introduced for repeat traffic offenders? (2) If so, what offences should be subject to these stricter penalties? 
6.7 Intensive supervision programs How could the intensive supervision of repeat traffic offenders be improved? 
7. Communities requiring special attention 
7.1 Communities requiring special attention What communities, in addition to those listed in Chapter 7, might require special attention when dealing with driving offences? 
7.2 Remote and regional communities What changes should be made so that traffic law operates effectively for people in remote and regional communities? 
7.3 Young people What changes should be made so that traffic law operates effectively for young people? 
7.4 Aboriginal people What changes should be made so that traffic law operates effectively for Aboriginal people?

CAG Defamation Inquiry

The national Council of Attorneys-General (CAG) has agreed on terms of reference for an inquiry into the Australian defamation regime. The NSW AttorneyGeneral today announced that CAG has appointed a Defamation Working Party (DWP) to 'examine defamation law in Australia and identify areas for reform'.
 Responsibility for defamation law falls to individual states and territories, but in the digital age where publications cross state and territory boundaries, a national approach to reform is essential. NSW is delighted to be leading the process to review our national model defamation laws. A representative of the NSW Department of Justice will chair the DWP, which will also include the state’s Solicitor General Michael Sexton SC. 
Australian defamation laws need updating to take into account online platforms that were only beginning to emerge at the time that the CAG’s predecessor (Standing Committee of Attorneys-General) approved model defamation provisions in 2005. It follows that the impact of technological change will be a significant focus of the DWP’s work. 
To drive that process, CAG has announced that it has asked the DWP to issue a discussion paper in early 2019. The CAG has agreed to develop by the end of this year an expeditious and realistic timetable for the DWP to deliver its recommendations for defamation reform. 
The purpose of defamation law is to balance freedom of speech with the right of individuals to protect their reputations. Media companies, internet service providers, social media platforms and plaintiffs’ advisors will each have different views of where that balance should lie. A robust public process will ensure that all views are considered.
The Terms of Reference are
The Defamation Working Party (DWP) is comprised of one nominated representative from each Australian state and territory jurisdiction and established under the auspices of the Council of Attorneys General (CAG). 
The DWP is to be chaired by a representative from the New South Wales (NSW) Department of Justice. NSW will also be represented by its Solicitor General. All other jurisdictions will have one nominated representative. 
The DWP will consider whether the policy objectives of the Model Defamation Provisions (MDPs) remain valid and whether the MDPs remain appropriate to achieve these objectives. 
The objectives of the MDPs are stipulated in section 3 and are as follows
(a) to enact provisions to promote uniform laws of defamation in Australia; 
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; 
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and 
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 
In considering the above, the DWP will have reference to the following:
(a) the recommendations and findings of the June 2018 statutory review of the Defamation Act 2005 (NSW); 
(b) any proposals for reform tabled by individual members of the DWP; 
(c) relevant developments in case law in Australian jurisdictions and internationally; 
(d) relevant developments in technology since the commencement of the MDPs; and 
(e) any other relevant matters.
The DWP will make recommendations to CAG for any reforms to the MDPs it considers necessary and report on progress to each CAG meeting.
Cautions are noted here.

Identifiers and the Interoperability Hub

My doctoral dissertation highlighted the significance of age as a key constituent of legal identity, featured on identity documents such as driver licences and passports and formal eligibilities such as 'voting age', 'drinking age', 'pension age' or 'driving age' (the latter being liminal for most Australians).

In the Netherlands there has been much attention to to litigation by Emile Ratelband, a sprightly 69 year old 'positivity guru' who is unhappy about age discrimination. The latest report from Associated Press claims that Ratelband unsuccessfully argued that his age was 'causing him to struggle to find work and love', something that could be remedied by striking 20 years off his registered age.

Last month Ratelband asked a court in Arnhem to formally change his birthdate  to make him 49, arguing that his registered (and thus official) age did not reflect his emotional state and was causing him to struggle to find work and love. Ratelband claimed he did not feel 69. (I on the other hand sometimes feel 89.)  He argued that his request was consistent with other forms of personal transformation that have legal acceptance, notably the right to change name or gender.

The court responded negatively, according to AP,  noting that law in the Netherlands assigned rights and obligations on the basis of registered age, including  the right to vote and the duty to attend school. Acceptance of  Ratelband’s request would vitiate  those age requirements.  Ratelband did not demonstrate that he suffered from age discrimination, with the court commenting “there are other alternatives available for challenging age discrimination, rather than amending a person’s date of birth”. In Australia people often tweak their online persona - shed a few pounds and years, add a few centimetres - on online dating services used by individuals seeking love.

A media statement by the court reportedly indicated
Mr Ratelband is at liberty to feel 20 years younger than his real age and to act accordingly. But amending his date of birth would cause 20 years of records to vanish from the register of births, deaths, marriages and registered partnerships. This would have a variety of undesirable legal and societal implications.
The court reportedly acknowledged “a trend in society for people to feel fit and healthy for longer, but did not regard that as a valid argument for amending a person’s date of birth”.

In NSW the report by the Legislative Council's Standing Committee on Law and Justice regarding the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018 (NSW) notes 'issues raised by inquiry participants' in relation to that Bill and the Identity-matching Services Bill 2018 (Cth), concerned with the biometrics 'Interoperability Hub'.

Chapter Two of the report states
Evidence from stakeholders focused on both the Road Transport Amendment (National Facial Biometric Matching Capability) Bill and the Commonwealth's Identity-matching Services Bill 2018 [noted here]. This is because the Commonwealth legislation provides the overarching framework for the new biometric face-matching services. It is therefore important to consider the Commonwealth bill when discussing the Road Transport Bill. The NSW Council for Civil Liberties, Australian Lawyers for Human Rights and the Law Society of New South Wales all raised concerns with the legislation, including that:
  • facilitates the ability to provide information to local government and non-government bodies and is inconsistent with the Intergovernmental Agreement on Identity Matching Services 
  • contains ineffective privacy safeguards 
  • could be seen as creating a virtual identity card and may facilitate profiling. 
These issues will be considered in turn in the following section. 
Access for non-government and local government bodies 
While the NSW Council for Civil Liberties agreed that the power to rapidly check the identity of an unidentified person of interest in a terrorist or public safety context is justified and proportionate, it argued that the current proposal goes well beyond these circumstances, with access 'provided to a broad range of government, local government and non-government entities for a wide range of non-urgent purposes'.
It indicated that the Commonwealth bill is open-ended regarding local government and non- government use of the service. The bill states that these bodies can use all identity matching services, if 'verification of the individual’s identity is reasonably necessary for one or more of the functions or activities of the local government authority or non-government entity'. This broadens access to the Face Verification Service from what was agreed to in the Intergovernmental Agreement. The Agreement stated that a private sector organisation must have a legislative basis or authority to access the Facial Verification Service. 
The council therefore concluded that the Road Transport Bill should not proceed until 'major anomalies' between the Commonwealth bill and Intergovernmental Agreement have been resolved.  It noted that Victoria and the ACT have not put forward corresponding legislation, reportedly because of privacy concerns regarding the sharing of information with non- government bodies. 
The Law Society also stated its strong opposition to information being made available for commercial purposes. 
Response to concerns 
Mr Andrew Rice, Acting First Assistant Secretary, Identity and Biometrics Division, Department of Home Affairs explained that a non-government organisation, such as a bank, could never access the Facial Identification Service as this is for law enforcement purposes as prescribed by law. However a non-government organisation could gain access to the Facial Verification Service. 
Access would however be limited to a query and response. An organisation would be able to query whether the information it had in relation to a person is the same as the information in the system. The organisation would only receive a yes/no response and would not be privy to further data on the individual.  Mr Rice elaborated: ... they have the ability to pose a query. They have already captured the sensitive personal information and they have the ability to query the system and receive a yes or no answer. They do not receive that my mum's maiden name was X, they just get a yes or no answer. 
Mr Rice confirmed that there were arrangements in place that allowed in some instances for private agents to be granted direct access to the interoperability hub as brokers. These private agents would then field queries from other private entities such as banks and provide an answer to them whether or not the Capability identified the person as the person asserted. 
Mr Patrick Seedsman, Senior Legal Counsel, Roads and Maritime Services stated that 'each agency has ultimate control over what other agency accesses its data in the hub'. So a bank would need to make an application to Roads and Maritime Services to access its data. It is not a foregone conclusion that the bank would have access to the information. 
The Information and Privacy Commission NSW advised that the Intergovernmental Agreement details the terms applicable for access by non-government organisation to the Facial Verification Service, including:
  • searching or matching of facial image records on a ‘one to one’ basis to help verify an individual’s identity 
  • a ‘match’ or ‘no match’ response to queries as to whether an individual’s facial image and purported identity match a relevant government record 
  • use must be compliant with the Privacy Act 1988 (Cth), relevant state and territory privacy legislation and/or other applicable legislation 
  • an organisation must comply with the requirements of the participation agreement, including the Facial Verification Service Access Policy developed by the Coordination Group.
Mr Rice noted that the Victorian Government provided a submission to the Parliamentary Joint Committee on Intelligence and Security which raised some concerns with private sector access. He noted that the department responded that the 'bill was about futureproofing ... and it is still a decision for all the governments of Australia as to whether the private sector gets access to driver licences'.  He noted that he is in close contact with Victorian Premier's department officials 'who have been at pains to say they are still with us and, indeed, are very close to being brought into our technical program for integration of their images'. 
Privacy safeguards 
The Australian Lawyers for Human Rights agreed with the aim of allowing identity-matching services to be used by government where there is a question of wrongdoing, while noting that such services must be surrounded by safeguards. It considered that insufficient safeguards have been adopted at the Commonwealth level, and no safeguards have been included in the Road Transport Bill.  It argued that legislation which impinges upon human rights must be 'narrowly framed and proportionate to the relevant harm it addresses'. The Australian Lawyers for Human Rights indicated that in their view the Commonwealth bill does not strike the correct balance, and New South Wales should not provide information 'to be used for unspecified possibly commercial purposes through the hub or the Capability’. 
Further, the Australian Lawyers for Human Rights argued that the Road Transport Bill should not be passed as it opens New South Wales citizens up to government surveillance: The Federal Bills exempt the Federal Government from the normal operations of the Australian privacy principles and allow individuals’ personal and sensitive information,  including biometric data to be used for any purpose the Federal Government may wish. The Federal Bills do not respect privacy but enable surveillance and exploitation. NSW residents should not be made part of these arrangements. Australian Lawyers for Human Rights was also concerned that under both the State and Commonwealth bills data can be obtained for one purpose, but used for other purposes: It is a fundamental aspect of the Australian Privacy Principles that individuals should know the reason for collection of their personal information and that the information should be used only for that particular purpose or purposes. This fundamental concept is not honoured by the Identity-Matching Services Bill, which indeed specifically provides that data obtained for one purpose can be used for other purposes, with section 3 providing that: ‘The Department may use or disclose for any of those purposes information so collected (regardless of the purpose for which it was collected)’ (emphasis added). The information may also be shared with other countries, amounting to a substantial breach of personal privacy. 
The Law Society was also concerned about the scope and reach of the Capability and the associated risks of unnecessary encroachment on the privacy of citizens. It stated that the Road Transport Bill does not include any assurances as to what controls or safeguards will operate to protect the personal information shared to the Capability.  It recommended that the Road Transport Bill not proceed until a thorough public Privacy Impact Assessment is undertaken by the NSW Privacy Commissioner. 
During evidence, Dr Lesley Lynch, the Vice President of the NSW Council for Civil Liberties noted that while she was assured the Capability will not be used for 'general mass surveillance' at this stage, it does provide the building blocks for close to real-time mass surveillance by government which could have very negative effects for our democracy: The transformational element in the overall surveillance agenda is then enhanced capacity for close to real-time matching of unidentified facial images against a growing and eventually pretty large national database. The sources for these images, as we know, are many. CCTV is almost everywhere we go now; almost everybody has their own phone in their hands most of the time, their iPhone and so on and so on. This delivers a technical capacity for real-time mass surveillance of public gatherings as well as the terrorist and other public safety incidents. ... If we are putting into place a capability which gives government the capacity for real-time surveillance, it is big stakes. And it is big stakes not just in terms of people's privacy; it is big stakes in terms of the nature of our democracy. I think it is a pretty incontrovertible historical fact that if you have that kind of surveillance you have a profound chilling effect on people's willingness to go to a demonstration if you know you could be picked up. 
Dr Lynch stated that all aspects of the national database and the identity-matching and identification capabilities should be very tightly controlled to give maximum protection to the privacy of individuals who are not police suspects.  The NSW Council for Civil Liberties asserted that there are no robust privacy safeguards in the Commonwealth bill and that there are weaknesses in the New South Wales privacy framework.  It recommended that the Road Transport Bill not proceed until the Commonwealth bill is amended to include robust privacy safeguards.65 The council also considered that the Road Transport Bill should be subject to independent review every three years.  The NSW Council for Civil Liberties also noted the substantial rule making power in the Commonwealth bill provided to the Minister for Home Affairs. The council argued that rules which have a significant impact on individual rights and liberties should be included in primary legislation. By deferring important decisions to delegated legislation, the level of scrutiny is reduced because there is little parliamentary oversight. The NSW Council for Civil Liberties recommended that the Road Transport Bill should not proceed until the Commonwealth Act is amended to ensure that rules which will have adverse effects on individual liberties or rights cannot be made by the Minister for Home Affairs.  Stakeholders also expressed concerns about the timing of the Road Transport Bill. 
The NSW Council for Civil Liberties argued that it seemed 'premature to pass cognate legislation at a State level when the precise parameters of the Face Matching Service and much other detail, have not been settled within the main legislation'.  The Law Society also expressed concern that the Road Transport Bill is being advanced ahead of the passage of the Commonwealth enabling legislation.  It noted that the bill is proposed to commence on assent, potentially ahead of the commencement of the Commonwealth bill and associated privacy and security safeguards foreshadowed in the Intergovernmental Agreement.  The NSW Council for Civil Liberties and The Law Society both considered that the Road Transport Bill should not proceed until the Commonwealth bill has been enacted. 
Virtual identity card 
Some inquiry stakeholders likened the Capability to a virtual identity card. The NSW Council for Civil Liberties informed the committee that this proposal has quietly evolved over the last decade following failed attempts by governments to introduce identity cards in Australia: This proposal is not a sudden development. It is the latest iteration in the development of a national facial recognition identity framework and system which have quietly evolved over the last decade or so. In 1987 and in 2006 the Federal Government attempted to implement national identity schemes – most memorably, the Australia Card and then the Access Card. These aimed to provide administrative efficiency but the perceived threat of increased government monitoring and surveillance and loss of privacy and the right to anonymity generated solid resistance from civil society. Neither was implemented and it was reasonable to assume that, given the strength of community opposition, future Governments would be wary of trying again. 
The NSW Council for Civil Liberties argued that the 'combined scope and capacity of this national identity matching framework will provide a far more powerful identification and surveillance tool than would have been delivered by the Australia Card'. 
Legal practitioner Ms Valerie Heath noted that in 1987 the Australian people rejected the proposed introduction of an Australia Card identity document. She stated that the introduction of a 'national virtual identity card system' is significant, and there should be a wider public policy debate to discuss the ramifications. 
The Australian Lawyers for Human Rights also indicated that the arrangements in these bills are being advanced 'with no real public consultation, despite the well-known opposition of a majority of Australians to any national identity card system'.   
Profiling 
Some inquiry participants noted their unease that the incidental collection of certain biometric data may lead to the Capability being used for racial profiling. 
Ms Valerie Heath observed that the experience of existing systems shows that it is likely such a facility will emphasise identifying, monitoring and detaining persons profiled as ‘risky’ and will include persons considered by law enforcement as demographically more likely to offend, leading to 'disproportionate targeting of indigenous Australians and other minorities selected by law enforcement for particular scrutiny'. 
The NSW Council for Civil Liberties indicated that the Commonwealth bill specifically permits the collection of sensitive information. While this excludes the collection of information regarding racial or ethnic origin, health information and genetic information, the incidental collection, use or disclosure of this information is in fact permitted. The council explained that 'biometric information, by its nature, captures information about a person’s health, ethnicity and race and for that reason has been linked to inappropriate profiling'. 
The NSW Council for Civil Liberties recommended that the bill not proceed until the Commonwealth bill has been amended to include a robust compliance framework, including  transparency, independent vulnerability tests and mechanisms for responding to public complaints. 
Response to concerns with the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018 
The Attorney General, Mr Mark Speakman SC, MP, addressed privacy concerns with the Road Transport Bill in his second reading speech. Mr Speakman stated that the Capability includes robust privacy safeguards, a compliance framework and independent oversight: I reiterate previous statements from the New South Wales and Commonwealth governments that the Capability has been designed and built with robust privacy safeguards in mind, has been subject to detailed privacy impact assessments and data security assessments, will only be accessible by authorised agencies and by individuals within those agencies who are also appropriately authorised and have undertaken required training, and will be subject to a robust compliance framework and independent oversight at both the New South Wales and national level.   
The NSW Government indicated that the Capability has been designed with robust privacy safeguards:
  • each agency authorised to use the identity matching services will be bound by strict conditions about their use of the Capability 
  • the Privacy and Personal Information Protection Act 1998 continues to apply, with the exclusion of ss 9 and 10 
  • the Capability has strict authorisation, audit and training requirements; an established compliance framework to identify and manage misuse; and clear conditions on the parameters of permissible use of the different services within the Capability 
  • data would not be available to the private sector without the prior approval of the NSW Government.  
The Information and Privacy Commission supported the government's views that the Capability was designed to include robust privacy safeguards. The commission indicated that it had been consulted by the Commonwealth and NSW Governments about the development of the Capability, the National Driver Licence Facial Recognition Solution, and the legislation.  The commission noted its in-principle support for the bill's objectives, subject to appropriate privacy and security controls, and considered 'that the bill operates within the framework of relevant legislation and the State's privacy regime, including the requirement for legislative authority to collect, use and disclose facial images and other personal information'. 
The commission supported the exemptions to the Privacy and Personal Information Protection Act 1998 proposed by the bill in order to facilitate New South Wales' participation in the Capability. 
The Information and Privacy Commission also argued that under the Government Information (Public Access) Act 2009 (GIPA Act) there is a general public interest in favour of the disclosure of government information  and submitted that the policy objectives in the bill are consistent with the object of the GIPA Act and the public interest.86 Response to concerns with the Identity-matching Services Bill 2018 (Cth) 
Stakeholders also addressed concerns with the Commonwealth legislation. The Commonwealth Department of Home Affairs explained that the identity-matching services outlined in the Identity-matching Services Bill 2018 (Cth) have been informed by a ‘Privacy by Design’ approach, with a range of privacy safeguards built-in throughout the bill, as well as policy and administrative arrangements that will support the services. The department advised that all jurisdictions have been involved in developing these safeguards and will be expected to implement the policy and administrative measures. 
Ms Samantha Gavel, the NSW Privacy Commissioner, outlined the extensive consultation that has taken place on the Commonwealth legislation:
It has gone on over a number of years ... The most recent one that I was involved in was in about March this year, a roundtable of privacy commissioners with the Department of Home Affairs to look more closely at some of the compliance documentation that underpins the scheme and also to have input into the latest privacy impact assessment that has been done. There have already been two done, as I understand it. 
The Commonwealth Department of Home Affairs submitted that the Commonwealth bill has a range of privacy, accountability and transparency measures to ensure appropriate safeguards exist in relation to the use of identification information in the delivery of identity-matching services, including:
  • restricting the kinds of identification information that can be collected, used or disclosed 
  • defining and limiting the scope of the identity-matching services that can be provided by Home Affairs 
  • limiting the purposes for which Home Affairs may collect, use or disclose identification information to prescribed identity and community protection activities 
  • establishing an offence for unauthorised recording and disclosure of information by entrusted persons   
  • requiring the Minister to submit a report to Parliament on the use of the services each year.
According to the department, the Facial Identification Service is subject to particular privacy safeguards in the Commonwealth bill, including:
  • limiting its use to a specific list of Commonwealth, State and Territory national security, law enforcement and anti-corruption agencies 
  • providing that it can only be used for the purposes of preventing and detecting identity fraud, law enforcement, national security, protective security and community safety.  
The participation agreements (outlined in Chapter 1) also provides a framework within which agencies will negotiate details of data sharing arrangements, so that these arrangements meet minimum privacy and security safeguards in order to support information sharing across jurisdictions. The Commonwealth Department of Home Affairs explained that it will not have the ability to access driver licence or other identity information provided by states and territories, other than through the agreed data sharing arrangements.   
The department informed the committee that, together with the Intergovernmental Agreement, these agreements include additional privacy protections that participating agencies need to comply with before obtaining access to the services, including:
  • providing a statement of the legislative authority or basis on which an agency may obtain identity information through the face-matching services 
  • conducting a privacy impact assessment which includes consideration of the entity’s use of the identity-matching services 
  • entering into arrangements for the sharing of identity information with each data-holding agency it wishes to receive information from 
  • providing appropriate training to personnel involved 
  • conducting annual compliance audits.
 In addition to the privacy safeguards, the Commonwealth Department of Home Affairs will remain subject to the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to personal information that it collects, uses or discloses. This includes being subject to the Notifiable Data Breaches scheme under the Privacy Act, as administered by the Office of the Australian Information Commissioner.  In responding to questions concerning 'bundled consent', Mr Rice committed to the Department of Home Affairs working with Federal and State colleagues to put in place appropriate consent arrangements, through the participation agreements. 
In answering the committee about what purposes will Roads and Maritime Services be using the information obtained from the capability, Mr Seedsman responded that it was his understanding that Roads and Maritime Services does not have any present proposal to use information from the Capability. 
Committee comment 
Stakeholders were united in the view that the facial matching capability for the purposes of law enforcement, such as in the event of a terrorist attack or a siege situation, is a sensible and important measure. 
However, the committee acknowledges stakeholder concerns raised during this inquiry. This process has provided an important opportunity for these matters to be aired and for government representatives to respond. 
The committee notes that the Commonwealth bill potentially allows non-government organsations such as banks to access the Facial Verification Service. However, we note that this access would be limited to a query and response process and would not allow the organisation to access personal information it was not already privy to. 
The committee acknowledges that the Commonwealth legislation has not yet passed and there is some uncertainty about what, if any, amendments may be made to it. 
Many concerns were also raised that the bills provide inadequate privacy safeguards. On this issue, the committee notes that the participation agreement and policy framework surrounding the New South Wales and Commonwealth legislation form a major part of the privacy safeguards. In addition, extensive dialogue has been undertaken at all levels of government in developing this framework. Further the interoperability hub provides many of the same services as the current Document Verification Service. However it is much faster, more accountable and allows for the cross-checking of images. 
Therefore the committee notes that the Legislative Council will proceed to debate the Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018, but that the government should use this opportunity to address key concerns raised by stakeholders. 
We therefore recommend that when the Legislative Council proceeds to consider the bill that stakeholder concerns raised in this inquiry be addressed by the government during debate on the bill, primarily:
  • the reasons why the Road Transport Bill is being considered before the Commonwealth legislation passes 
  • whether specific privacy safeguards should be included in the Road Transport Bill 
  • whether New South Wales will allow its agencies to enter into participation agreements with local government and non-government bodies.

03 December 2018

Dignity and Big Data

'Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age' by Julia M. Puaschunder comments
Today enormous data storage capacities and computational power in the e-big data era have created unforeseen opportunities for big data hoarding corporations to reap hidden benefits from individual’s information sharing, which occurs bit by bit in small tranches over time. This paper presents underlying dignity and utility considerations when individual decision makers face the privacy versus information sharing predicament. Thereby the article unravels the legal foundations of dignity in privacy but also the behavioral economics of utility in communication and information sharing. For Human Resources managers the question arises whether to uphold human dignity in privacy or derive benefit from utility of information sharing. From legal and governance perspectives, the outlined ideas may stimulate the e-privacy discourse in the age of digitalization but also serving the greater goals of democratisation of information and upheld humane dignity in the realm of e-ethics in the big data era.

Criminal Law and howling stupidity

'High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia' by Luke McNamara and Julia Quilter in (2018) 41(4) UNSW Law Journal argues
 Scholars of criminal law and criminalisation have paid insufficient attention to the use of constitutional challenges in the courts as a strategy for influencing the nature and scope of criminal laws in Australia. This article makes a contribution to filling this gap by analysing 59 High Court of Australia decisions handed down between 1996 and 2016. Our analysis highlights the sorts of criminal laws that have been the subject of constitutional scrutiny, the types of constitutional arguments that have been advanced, and the outcomes achieved. We show that outright ‘wins’ are rare and that, even then, the concept of ‘success’ is complex. We highlight the need to consider the wider and longer-term effects of constitutional adjudication, including how legislatures respond to court decisions. We conclude that challenges to constitutional validity in the High Court represent a limited strategy for constraining how governments choose to legislate on criminal responsibility, procedure and punishment.
The authors comment
The research on which this article reports is motivated by three coinciding phenomena associated with 21st century criminal lawmaking in Australia. First, there has been a noticeable growth in, and diversification of, the modalities of ‘criminalisation’employed by legislators in response to identified harms and risks (and uncertainties).
A number of these developments involve extensions of the punitive and other coercive authority of the state beyond the traditional parameters of criminal responsibility, and in ways that challenge traditional liberal democratic accounts of when the state is entitled to impose deprivations on a person’s liberty. Examples include: the creation of ‘control order’ regimes directed primarily at terrorism and bikie gangs; the introduction of post-sentence preventive detention regimes for ‘high-risk’ offenders; and the expansion of police powers in relation to the management of protest activities.
Second, in Australia and elsewhere, scholars in criminal law and criminology have responded to disquiet about these and other forms of perceived ‘overcriminalisation’. By ‘over-criminalisation’ we mean the normative judgment that a law is unnecessarily or unfairly punitive, pushing the criminal law – whether its substantive offences, or procedures, or both – and, therefore, the coercive powers of the state, beyond legitimate limits. Scholars have produced a significant body of literature which critiques such developments in resorting to criminal law ‘solutions’, and which attempts to theorise the legitimate normative limits of criminalisation as a public policy mechanism.
Third, in Australia, individuals and organisations concerned about instances of perceived over-criminalisation, and their lawyers, have pursued constitutional challenges in the High Court as a prominent strategic mechanism for attempting to stop or restrict perceived over-criminalisation. To some extent, the rise in popularity of this strategy may be seen as an attempt to enliven the ‘constitutional court’ role of the High Court akin to the role played by constitutional courts in other countries – such as the Supreme Court of Canada, courtesy of the Canadian Charter of Rights and Freedoms, or the United States Supreme Court, by virtue of the United States Bill of Rights. Of course, compared to those two constitutional courts, the ‘hooks’ on which invalidity arguments can be hung in the High Court are very few.
The aim of this article is to make a contribution towards understanding High Court constitutional challenges as a method of influencing the parameters of criminal lawmaking in Australia. In what circumstances has this strategy been successful? What have been its effects on lawmaking practices, both in the immediate aftermath of specific decisions and over time?
The context in which we approach these questions is a wider project which examines the drivers of resorting to new forms of criminalisation as a public policy tool, and which evaluates strategies for attempting to influence the parameters of criminalisation. We recognise that constitutional law scholars have previously examined a number of the cases that form part of the present study, most notably in relation to the most widely used constitutional invalidity argument in the criminal law context: the ‘institutional integrity’ principle based on Chapter III of the Australian Constitution, with its origins in the High Court’s 1996 decision in Kable v Director of Public Prosecutions (NSW).
Our aim in writing this article is not to duplicate or challenge the insights yielded by this important body of work. Rather, this article is motivated by our own recognition that scholars of criminal law and criminalisation have tended to ignore this important dimension of the story of contemporary criminal lawmaking in Australia. It represents the first attempt by criminal law and criminalisation scholars to approach High Court constitutional challenges as one of the techniques for attempting to interrupt and influence governments’ uses of criminal law mechanisms that warrants scholarly attention and scrutiny. 
Our analysis addresses not only ‘Kable challenges’, but also challenges to criminal law statutes brought on other constitutional grounds, including the implied freedom of political communication, the guarantee of trial by jury for Commonwealth indictable offences in section 80 of the Constitution, and the supremacy of Commonwealth laws in cases of inconsistency between state and Commonwealth laws, by virtue of section 109 of the Constitution. Nonetheless, we recognise the significance of the High Court’s decision in Kable and therefore adopt the year it was handed down (1996) as the starting point for the review period in the present study. Kable was critical to ‘[t]he move to centre stage of Ch III of the Constitution’, which has been described as ‘one of the defining features of … Australian constitutional law’ during the 1990s. Kable is widely and rightly seen as a pivotal event in the emergence of the public interest strategy of pursuing constitutional validity to statutes which are alleged to effect overcriminalisation in one way or another.
Part II of this article explains the project’s research design, including research questions and methodology. Part III presents a brief quantitative snapshot of the dataset. Part IV discusses the project’s major findings regarding the use of High Court constitutional challenges as a strategy for influencing the parameters of criminal law and procedure legislation in Australia.
Meanwhile the Victorian Premier, in one of those moments that will power a generation of law tutorials, has followed up AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58 by announcing a royal commission into the state's use of a senior barrister as a 'super grass' in high profile crime litigation.
The Andrews Labor Government has today announced that it will establish a Royal Commission to independently inquire into Victoria Police’s recruitment and management of one of its informants. 
The informant was a criminal defence barrister for several people who were convicted of criminal offences over the past two decades. At the same time, this barrister acted as an informant to Victoria Police about some of these people. 
The decision of the High Court released today calls into question whether some convictions have occurred fairly and in accordance with law. 
The integrity of the criminal justice system is paramount and all people charged with crimes are entitled to a fair trial, no matter who they are. 
The Victorian Government has received assurances from Victoria Police that its practices have changed since the barrister’s recruitment as an informant, and an IBAC report in 2015, which inquired into Victoria Police’s management of informants, did not find that any unlawful conduct had occurred. 
The Victorian community, however, has a right to further independent assurance that these past practices have been stamped out, as well as an understanding of what happened in this instance. The Royal Commission will provide that assurance. 
The terms of reference will be finalised once Commissioners are appointed, but the inquiry will consider matters including:
  • The number of, and extent to which, cases were affected by the conduct of informant 3838 as a human source, and the recruitment, handling and management of 3838 as a human source by Victoria Police 
  • The adequacy of current management processes for human sources with legal obligations of confidentiality or privilege, including continued compliance with the recommendations of the 2015 IBAC report 
  • The use in the criminal justice system of information from human sources who are subject to legal obligations of confidentiality or privilege. including whether there are adequate safeguards in the way in which cases are assessed and recommended for prosecution, and prosecuted by Victoria Police and the Office of Public Prosecutions 
  • Recommended measures that may be taken to address any systemic or other failures in Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader criminal justice system, including how those failures may be avoided in future.
The inquiry will provide an interim report by 1 July 2019 and provide a final report by 1 December 2019.
The Premier might be wise to doubt future 'assurances from Victoria Police'.

The HCA judgment states
Early in February 2015, the Victorian Independent Broad-based Anti-corruption Commission provided to the Chief Commissioner of Victoria Police ("AB"), and AB in turn provided to the Victorian Director of Public Prosecutions ("CD"), a copy of a report ("the IBAC Report") concerning the way in which Victoria Police had deployed EF, a police informer, in obtaining criminal convictions against Antonios ("Tony") Mokbel and six of his criminal associates ("the Convicted Persons"). The Report concluded among other things that EF, while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons' defences to criminal charges of which they were later convicted and that EF also provided information to Victoria Police about other persons for whom EF had acted as counsel and who later made statements against Mokbel and various of the other Convicted Persons. Following a review of the prosecutions of the Convicted Persons, CD concluded that he was under a duty as Director of Public Prosecutions to disclose some of the information from the IBAC Report ("the information") to the Convicted Persons. 
In the months which followed, Victoria Police undertook an assessment of the risk to EF if CD were to disclose the information to the Convicted Persons. The conclusion reached was that, if the information were disclosed, the risk of death to EF would become "almost certain". On 10 June 2016, AB instituted proceedings in the Supreme Court of Victoria seeking declarations that the information that CD proposed to disclose and other information in the IBAC Report was subject to public interest immunity and thus that CD is not permitted by law to make the proposed disclosures. On 11 November 2016, EF was added as a plaintiff to the proceeding. On 15 November 2016, EF instituted a separate proceeding in the Supreme Court of Victoria seeking similar relief on the basis of an equitable obligation of confidence. 
Both proceedings were heard together in camera without notice to the Convicted Persons and with publication of the proceedings being suppressed. The Convicted Persons' interests were, however, amply represented throughout the proceedings and subsequently on appeal to the Court of Appeal of the Supreme Court of Victoria, and before this Court, by amici curiae. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding instituted by AB and the Commonwealth Director of Public Prosecutions was granted leave in the Court of Appeal to intervene in support of disclosure. 
On 19 June 2017, Ginnane J gave judgment in each proceeding dismissing AB's and EF's claims for relief. Relevantly, his Honour dismissed the claim for public interest immunity on the basis that, although there was a clear public interest in preserving the anonymity of EF as a police informer, and thus in keeping her and her children safe from the harm likely to result from disclosure of the information, there was a competing and more powerful public interest in favour of disclosure because of the assistance that the information might afford the Convicted Persons in having their convictions overturned and, more fundamentally, in order to maintain public confidence in the integrity of the criminal justice system. 
On 21 November 2017, the Court of Appeal of the Supreme Court of Victoria (Ferguson CJ, Osborn and McLeish JJA) dismissed AB's and EF's appeals from the orders of Ginnane J. Like Ginnane J, the Court of Appeal held that, despite the risk to EF and her children, the very great importance of ensuring that the court's processes are used fairly and of preserving public confidence in the court meant that the public interest in disclosure outweighed the public interest in immunity. 
On 9 May 2018, AB was granted special leave to appeal to this Court on grounds to the effect that the Court of Appeal erred in failing to appreciate that there is a discrete public interest in the State of Victoria adhering to the responsibility which it assumed by reason of the assurances given by Victoria Police to EF that her identity as a police informer would not be disclosed. At the same time, EF was granted special leave to appeal on grounds to the effect that the Court of Appeal erred by assuming, contrary to the evidence, that EF might choose to enter into the witness protection program once it was determined that the information would be disclosed, by finding and taking into account that EF's refusal to enter witness protection may become unreasonable, and by not concluding that the public interest favoured non-disclosure given the gravity of the consequences of disclosure to EF and her children. 
The full written arguments thereafter presented by all parties and interveners made it apparent, as it was not apparent at the time of granting special leave to appeal, that the only arguable issue underpinning the various grounds of appeal was whether it was no longer possible adequately to protect the safety of EF and her children in the event of disclosure. Accordingly, in order to clarify the relevant facts that had been the foundation of the grant of special leave, the Court sought from AB, and was provided with, further detailed evidence as to what can be done to secure the safety of EF and her children in the event of disclosure. The effect of that evidence is that the safety of EF and her children may adequately be protected if EF agrees to enter into the witness protection program. 
Given that conclusion, the parties were invited to present oral argument as to why special leave to appeal should not now be revoked, and, today, their oral arguments were heard in camera. Having now considered those arguments, the Court is unanimously of the view that special leave to appeal should be revoked. 
As Ginnane J and the Court of Appeal held, there is a clear public interest in maintaining the anonymity of a police informer, and so, where a question of disclosure of a police informer's identity arises before the trial of an accused, and the Crown is not prepared to disclose the identity of the informer, as is sometimes the case, the Crown may choose not to proceed with the prosecution or the trial may be stayed. 
Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person's conviction be re-examined in light of the information. The public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system. 
To say so is not to overlook that, on the evidence before the courts below and now before this Court, EF and her children will be at grave risk of harm unless EF agrees to enter into the witness protection program. Nor is it to ignore that, thus far, EF has declined to do so, taking the view that Victoria Police cannot be trusted to maintain confidentiality and apparently that she would prefer to wear the risk than subject herself and her children to the limitations and burdens that witness protection would surely entail. It is further not without significance that Victoria Police may bear a large measure of responsibility for putting EF in the position in which she now finds herself by encouraging her to inform against her clients as she did. But large though those considerations may be, they do not detract from the conclusion that it is essential in the public interest for the information to be disclosed. 
Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to EF are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity. But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. If EF chooses to expose herself to consequent risk by declining to enter into the witness protection program, she will be bound by the consequences. If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm. 
Either way, however, it is appropriate that special leave to appeal be revoked in these two proceedings and the decision of the Court of Appeal be allowed to take effect.

02 December 2018

Guest Workers

Cultural Exchange or Cheap Housekeeper? Findings of a National Survey of Au Pairs in Australia by   Laurie Berg and Gabrielle Meagher reports that the majority of au pairs in Australia are paid as babysitters but work like housekeepers.

The report draws on responses from 1,479 participants who had au paired in Australia households in every Australian state and territory.

 Key findings include:
  •  Most participants came to Australia looking for a traditional ‘cultural exchange’,
  • almost 60% however found themselves working for around 36 hours a week, doing not only childcare but daily cooking, cleaning and other household tasks. 
  •  Average working hours were 34 hours per week; nearly a third (30%) worked 40 hours per week or more. 
  •  Taking into account a generous value of room and board, a majority of participants (58%) were paid less than the national minimum wage. 
  •  A third of participants worked in families who lived in the most advantaged 10% of suburbs in Australia. 
  •  Cultural agencies promote au pairing as a cultural experience. However, participants who used an agency to arrange their placement fared no better than others in relation to working hours, rates of pay or inclusion in family activities. 
  •  Most participants did not understand how Australian visa rules relate to au pairing and the consequences of breaching visa conditions.
The authors note
This report presents the first comprehensive study of living and working conditions of au pairs in Australia. It draws on responses from 1,479 au pairs across 34 nationalities to an online survey in 2017. The study seeks to provide an evidence base to indicate the contours and variety of au pair experiences across this country. 
The concept of au pairing has arisen informally in Australia as a version of a European tradition where young women spent a year-long cultural exchange with a host family in a different European country, learning a foreign language and earning ‘pocket money’ while undertaking light childcare duties. It seems likely that the use of au pairs by Australian families has increased in recent years. Media reports have revealed both the growing dependence of families on au pairs as a source of flexible and affordable childcare, and the risk of au pairs’ exposure to exploitative working conditions. However, there is no official au pair program, dedicated visa, or even any official guidelines for families or au pairs, and so we lack even an agreed definition about what an au pair is. 
The cornerstone of au pairing, in popular culture around the world, and as it is promoted by Australian au pair agencies which facilitate placements, is that it is a ‘cultural exchange’ where au pairs are hosted as part of a family. Accordingly, Australian agencies, industry associations and matching websites carefully distinguish au pairs from live-in nannies or housekeepers in ongoing employment. They often use the term ‘pocket money’ or ‘stipend’ to describe their pay and most stipulate that au pairs undertake mainly childcare-focused tasks, including cooking for, cleaning up after and driving children, rather than regular domestic work for the whole household. However, the distinction between cultural exchange and work (if it was ever observed in practice) appears to be breaking down. Courts in Ireland and New Zealand have ruled that au pairing constitutes employment. In Australia, select agencies have explicitly pegged au pairs’ remuneration to legal minimum wage rates in Australia. 
Critically, because au pairing is an informal arrangement, very little is known about the day-to-day experiences of au pairs in this country, or how prevalent this practice is. One government agency adopted an estimate of 10,000 au pairs in Australia in 2013. Despite press interest in the apparent upsurge of au pairs in this country, almost no empirical research has investigated the living and working conditions of au pairs in Australia, how they arrange their placement or which visas they hold during their stay. Still less is known about how experiences vary between different cohorts, such as nationality groups, host families’ locations, and au pairs who use agencies to arrange their placements as compared with other means. 
This study begins to fill these gaps. It reveals participants’ demographic profile (including nationality and visa used while au pairing in Australia), the characteristics of their first au pair placement (including tasks they performed in the home, rates of pay and hours), problems they encountered in Australia and how they sought assistance to resolve these, and their motivations for au pairing, benefits gained and overall appraisal of their experience, including whether they considered the experience to be closer to a cultural exchange or to work. The survey was conducted online between November 2016 and April 2017, in four languages in addition to English. The survey was anonymous and open to any individual who had been an au pair in Australia.
Further
The vast majority of participants were young European women. Classic Au Pairs had the greatest proportions of nationals from Western and Northern Europe. Nanny Housekeepers comprised larger proportions of participants from native English-speaking countries.
• Almost all participants (97%) were women. 
• Women were more likely than men to be Nanny Housekeepers (focussing on childcare and housework). Men were more likely to either be Classic Au Pairs (only carrying out child-related tasks) or to also routinely undertake gardening and pet care. 
• Two thirds of participants (67%) were 23 years old or younger at the time of the survey. More than a quarter (27%) were 18 or 19 years old. 
• Four in five participants (81%) were from Europe, with over a third (35%) from Germany, followed by France (14%) and the United Kingdom (11%). 
Participants’ first placement was more likely to be with a larger than average two-parent family, in a major city, and in a suburb of relative social advantage.
• The proportion of participants in each state or territory corresponds roughly with the distribution of families with children under 15 years in Australia, as recorded in the 2016 Census. 
• Four in five of participants’ first placements (80%) were in a major city. 
• Families in outer regional areas hosted greater proportions of Nanny Housekeepers. 
• A third of first placements (32%) were with families who lived in the most advantaged 10% of suburbs and localities in Australia. 
Participants overwhelmingly held Working Holiday visas while au pairing in Australia, and frequently used matching websites to arrange their first placement. A majority did not sign a written agreement prior to starting that placement.
• Visa held during first placement. The overwhelming majority of participants reported holding a Working Holiday visa while au pairing in Australia (94%). Only 2% reported holding a tourist visa while au pairing, which would have constituted a breach of the visa condition prohibiting work in Australia. 
• A majority of participants did not accurately understand how Australian visa rules relate to au pairing, and the implications of breaching work-related visa conditions. 
• Use of an agency. A third of participants (31%) used a cultural exchange agency to arrange their first au pair placement. Over two thirds (69%) arranged their first placement without an agency. The greatest proportion of participants used a matching website like AuPairWorld to arrange their first placement (40%). 
• Written contract. Only two in five participants (39%) reported having signed a written agreement with their host family. 
• For the majority of these, the family presented the participants with a final written contract rather than them negotiating the terms together. 
• A much greater proportion of participants who paid an agency to arrange their first placement signed a written contract with their family beforehand (81%). Among these, an even greater proportion was presented with a final contract by the family. 
• Just under half (44%) of participants indicated they had obtained either a Working With Children Check or police check or both. This proportion increased to 88% for participants who paid an agency to arrange their first placement. 
On average, participants worked full time in their first placement for less than the national minimum wage ($17.70 per hour) at the time of the survey. Most had a weekly schedule that was honoured in the breach. Early termination, notice and prior agreements as to notice each revealed asymmetries in the power relations between families and au pairs.
• Average weekly hours. Survey participants worked an average of 34 hours per week in their first placement. 
• Just under a third (30%) worked 40 hours per week or longer. Nearly one in twelve (8%) worked 50 or more hours per week. 
• The few male participants worked shorter average hours than females. 
• Long hours were more frequently reported by Nanny Housekeepers than Classic Au Pairs. 
• The average notional hourly wage2 for all participants was around $17.10 including the inferred value of in-kind board and lodging, while the median was $15.31. 
• The average notional hourly wage was 25% higher for male than female participants. 
• The average notional hourly wage was a little higher for Classic Au Pairs, and a little lower for Nanny Housekeepers. 
• The distribution of notional hourly wage rates did not differ substantially between participants who used an agency to which they paid a fee, an agency to which they did not pay a fee, or did not use an agency. 
Participants in major cities earned the highest average notional hourly wage. The few participants in very remote locations earned the lowest. 
• Signing a contract before starting the first placement raised the floor of notional hourly wages for the bottom quartile of earnings for all participants, but did not result in higher notional hourly wage rates in higher quartiles. 
• The notional hourly wage rate fell below the national minimum wage for 58% of participants and below the lowest rate in the Children’s Services Award for 77% of participants. 
• Four fifths of participants (79%) reported having weekly schedules setting out expected hours in advance. 
• However, a similar proportion (82%) was asked to work extra hours. Over half (53%) of these were not given 2 days’ notice of these extra hours, and less than half (47%) were paid for them. Half (52%) of those who were paid extra received $10 per hour or less. 
• Larger proportions of Nanny Housekeepers were asked to do extra hours, compared with Classic Au Pairs, with smaller proportions paid for these extra hours. 
• Early termination, notice and prior agreements as to notice each revealed asymmetries in the power relations between families and au pairs. 
• Over half of participants (56%) reported having agreed that the au pair would give notice if they decided to end the placement. By contrast, only 46% of participants had an agreement that the family would give notice if they decided to terminate the placement. 
• A third of participants’ first placements ended early, which suggests that au pairing is an extraordinarily insecure form of childcare. 
• More than a third (36%) of participants who were asked to leave early were given one day or less to leave. Just over a half (53%) were given four days or less. By contrast, among the participants who chose to leave their first placement early, only one in five (20%) gave their family four days’ notice or less. 
• A smaller proportion of participants who used an agency were asked to leave early, although they did not get more notice. Families appeared to benefit from their au pair using an agency in that a smaller proportion of these participants gave their family 4 days’ notice or less. 
A substantial minority of participants experienced serious problems while au pairing in Australia, including coercive and exploitative working conditions and non-inclusion in family activities. Few who experienced serious problems sought assistance.
• More than two in five participants experienced one or more serious problems, including feeling compelled to work more than they expected (26%), feeling compelled to work different tasks than they expected (21%), non-payment of money promised (10%), verbal abuse (8%) and sexual harm (1%) ). 
• Nanny Housekeepers were more likely to be subjected to psychological harm (including verbal abuse, and other disrespectful or predatory behaviour) than Classic Au Pairs. 
• A third of participants reported exploitative working conditions. 
• Nanny Housekeepers + were much more likely to report exploitative conditions (46%), than Classic Au Pairs (26%). 
• Proportions of participants reporting exploitative conditions did not vary among those who had a written contract or used an agency (whether or not they paid a fee) 
• One in five participants reported non-inclusion in family activities in their first placement. 
• While agencies promote au pairing as an immersive cultural experience, they do not appear to be able to guarantee this. Use of an agency did not coincide with greater inclusion in family activities. 
• One in six participants reported that they felt forced to stay in their placement even in the face of problems, most frequently because they lacked alternative accommodation. 
• Few who experienced serious problems sought assistance from someone in Australia (27%), and were more likely to do so where they paid an agency to arrange the placement. 
Participants’ attitudes towards their au pair experience in Australia were, overall, extremely positive.
• A clear majority of participants reported that their expectations for their au pair experience were met or exceeded. 
• More than three quarters would recommend au pairing in Australia with almost half stating they would definitely recommend the experience. 
• More than a third characterised the experience as more like work than a cultural exchange (37%). One in five (21%) characterised it as midway between work and cultural exchange. 
• Participants who paid an agency to arrange their first placement reported the same positive averages as all other participants in relation to whether the experience exceeded their expectations and to recommending au pairing to their peers. They reported on average that the experience was slightly more like work than a cultural exchange, as compared with other participants. 
• Participants who experienced non-inclusion in family activities reported, on average, lower degrees to which au pairing met or exceeded expectations than those who experienced exploitative working conditions, and were more likely to consider the placement to be closer to work than a cultural exchange. 
• The top five benefits of au pairing reported by participants all related to classical constructions of au pairing as a cultural exchange.
The authors provide the following  recommendations
1. The government must resource flexible and affordable childcare alternatives to the precarious private employment of au pairs. 
2. The Fair Work Ombudsman and other relevant government agencies, including occupational health and safety authorities, should provide clear guidance that childcare and housekeeping duties routinely undertaken by an au pair under a family’s supervision meet the legal threshold for employment in the vast majority of cases. 
3. In light of the specific nature of the au pair role, and other live-in care work, the government should provide families and au pairs with guidance on acceptable minimum standards for au pair placements and information about applicable immigration restrictions. 
4. The Australian Taxation Office should provide clear, detailed guidance on the superannuation liabilities and taxation obligations of au pairs and employing families. In the context of current arrangements, this should include information about applicable tax rates for Working Holiday Makers, the process for withholding tax and lodging a tax return and the requirement for employers of Working Holiday Makers to register with the ATO. 
5. A government-funded service, whether within or adjacent to the Fair Work Ombudsman, should provide assistance and advice to au pairs and families. This should include mediation services for disputes and referrals of unresolved disputes to the Fair Work Ombudsman or other legal service providers. 
6. A dedicated au pair visa scheme should not be adopted if validity of the visa would be subject to agency sponsorship, host family sponsorship, or continued stay in an au pair placement.