30 December 2019

GINA

'Genetic discrimination: emerging ethical challenges in the context of advancing technology' by Carolyn Riley Chapman, Kripa Sanjay Mehta, Brendan Parent and Arthur L. Caplan in (2019)  Journal of Law and the Biosciences 1–23 comments
Genetic testing is becoming more widespread, and its capabilities and pre- dictive power are growing. In this paper, we evaluate the ethical justifi- cations for and strength of the US legal framework that aims to protect patients, research participants, and consumers from genetic discrimination in employment and health insurance settings in the context of advanc- ing genetic technology. The Genetic Information Nondiscrimination Act (GINA) and other laws prohibit genetic and other health-related discrim ination in the United States, but these laws have significant limitations, and some provisions are under threat. If accuracy and predictive power increase, specific instances of use of genetic information by employers may indeed become ethically justifiable; however, any changes to laws would need to be adopted cautiously, if at all, given that people have consented to genetic testing with the expectation that there would be no genetic discrimination in employment or health insurance settings. However, if our society values access to healthcare for both the healthy and the sick, we should uphold strict and broad prohibitions against genetic and health-related discrimination in the context of health insurance, including employer-based health insurance. This is an extremely important but often overlooked consideration in the current US debate on healthcare.
The authors argue
The international focus on and investment in genetic research will undoubtedly increase the ability to use genetic testing to predict many different individual characteristics and phenotypes, including the propensity for disease. According to the US National Institutes of Health (NIH), precision medicine is ‘an emerging approach for disease treatment and prevention that takes into account individual variability in genes, environment, and lifestyle for each person’. Many rare diseases are caused by a single gene defect. More common diseases such as diabetes and heart disease are polygenic and complex in nature, but scientists are identifying genetic factors that predict the risks of these diseases with greater precision and accuracy. Other genetic research is aimed at strengthening the predictive power of genome-wide polygenic scores for specific measures of intelligence (and/or educational attainment) and athleticism. Although the accuracy and predictive power of polygenic risk scores still need improvement, it’s clear that many scientists are working to address this challenge. Regardless of whether selecting embryos for higher IQ is in the realm of possibility, genetic testing is enabling increasingly accurate predictions about human characteristics. 
The Genetic Information Nondiscrimination Act (GINA) was enacted in 2008. In large part, the law was intended to allow patients to take advantage of genetic testing in clinical and research settings without fearing genetic discrimination. With knowledge about genotype/phenotype associations continuing to grow, it is worth reexamining the ethical justifications for prohibitions against genetic discrimination in employment and health insurance settings. Are our laws and policies sufficient, or will they need to evolve? With increasing accuracy of genetic testing, would it ever be appropriate to use genetic information to discriminate against or classify individuals in employment or health insurance settings? Our analysis must acknowledge that GINA has created an ethical obligation in its own right: Consumers, patients, and research participants have consented to genetic testing with the expectation that the results cannot be used in employment or health insurance settings. 
We divide this paper into three parts. In Part I, we analyze ethical issues related to the use of genetic information by employers and health insurers. We also discuss how these two spheres overlap since many employers provide health insurance for employees. In Part II, we outline the central policies that collectively prohibit discrimination based on genetic information in the United States in employment and insurance settings and discuss the limitations of these protections. We discuss how laws that prohibit employ- ment and health insurance discrimination based on health status are also important in the context of genetic conditions, when and if genetic disease becomes symptomatic. In Part III, we consider current and future challenges to the legal framework that prohibits genetic discrimination in employment and health insurance settings and make recommendations based on our ethical analysis. In the future, employers might justifiably argue that genetic information is relevant in specific employment decisions, and carveouts to GINA may indeed be warranted in narrow circumstances. However, if our society values equal access to healthcare, we must preserve broad and strict prohibitions against genetic and other health status discrimination in health insurance settings. The US health insurance system, which relies on for-profit insurers as well as employers, may become increasingly ethically problematic over time, if our predictive capabilities increase and insurance providers push back against protections in GINA and the Affordable Care Act (ACA).

26 December 2019

Consent

The Queensland Law Reform Commission consultation paper on Review of consent laws and the excuse of mistake of fact notes

The operation of consent laws in rape and sexual assault cases has attracted significant recent attention in Queensland and elsewhere. 
In July 2019, the Government announced that it would refer the matter of consent in rape and sexual assault cases to the Queensland Law Reform Commission (‘the Commission’), noting the importance of evidence-based reform. 
On 2 September 2019, the Attorney-General and Minister for Justice and Leader of the House referred to the Commission for review and investigation ‘the definition of consent in section 348 (Meaning of consent) in Chapter 32 (Rape and sexual assaults) of the Criminal Code and the operation of the excuse of mistake of fact under section 24 as it applies to Chapter 32’. 
The terms of reference require the Commission to examine the operation and practical application of those provisions and to make recommendations on:
(a) whether there is a need for reform of: (i) the definition of consent in section 348; (ii) the excuse of mistake of fact in section 24 as it applies to rape and sexual assaults in Chapter 32 of the Criminal Code; and  
(b) any other matters the Commission considers relevant having regard to the issues relating to the referral.
In making its recommendations, the Commission is to have regard to:
(a) the need to ensure Queensland’s criminal law reflects contemporary community standards; 
(b) existing legal principles in relation to criminal responsibility; 
(c) the need for Queensland’s criminal law to ensure just outcomes by balancing the interests of victims and accused persons; 
(d) the experiences of sexual assault victims and survivors in the criminal justice system; 
(e) the views and research of relevant experts; 
(f) recent developments, legislative reform, and research in other Australian and international jurisdictions; and 
(g) any other matters that the Commission considers relevant having regard to the issues relating to the referral.
The consultation paper characterises the current law thus
The offences in Chapter 32 
Sections 349 and 352 of the Criminal Code deal with the offences of rape and sexual assault respectively. These offences are found in Chapter 32 of the Criminal Code. Section 349 provides:
349 Rape 
(1) Any person who rapes another person is guilty of a crime. Maximum penalty—life imprisonment. 
(2) A person rapes another person if— (a) the person has carnal knowledge with or of the other person without the other person’s consent; or (b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or (c) the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent. 
(3) For this section, a child under the age of 12 years is incapable of giving consent. 
(4) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an offence against this section.   
(5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. (note added) 
In order to establish the offence of rape, the prosecution must prove beyond  reasonable doubt that the defendant:  • had carnal knowledge of or with the complainant; and • did so without the consent of the complainant; or • penetrated the vulva, vagina or anus of the complainant with a thing or part of the defendant’s body that is not a penis; and • did so without the consent of the complainant; or • penetrated the mouth of the complainant with a penis; and • did so without the consent of the complainant. 
Penetration to any extent is sufficient. Both men and women may commit rape or be victims of rape. Penetration for the purposes of a proper medical, hygienic or law enforcement purpose is excluded. 
Section 352 of the Criminal Code deals with the offence of sexual assault. It provides: 
352 Sexual assaults 
(1) Any person who— (a) unlawfully and indecently assaults another person; or (b) procures another person, without the person’s consent— (i) to commit an act of gross indecency; or (ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime. Maximum penalty—10 years imprisonment. 
(2) However, the offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in subsection (1)(a) or (1)(b)(i) if the indecent assault or act of gross indecency includes bringing into contact  any part of the genitalia or the anus of a person with any part of the mouth of a person. 
(3) Further, the offender is liable to a maximum penalty of life imprisonment if— (a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or (b) for an offence defined in subsection (1)(a), the indecent assault includes the person who is assaulted penetrating the offender’s vagina, vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or (c) for an offence defined in subsection (1)(b)(i), the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis. 
(4) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for an offence against this section. 
(5) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer. 
Broadly, in order to establish the offence of sexual assault, the prosecution must prove beyond reasonable doubt that the defendant: • unlawfully assaulted the complainant; and • the assault was indecent; or • procured another person to commit or witness an act of gross indecency; and • did so without that person’s consent. 
The term ‘indecent’ is not defined in the Criminal Code. What constitutes indecency is to be judged by prevailing community standards. 
The term ‘assault’ is defined in the Criminal Code:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without the other person’s consent ... is said to assault that other person. (emphasis added)   
Chapter 32 of the Criminal Code also contains other offences, namely, attempt to commit rape (in section 350) and assault with intent to commit rape (in section 351). 
A key element that must be proved by the prosecution beyond reasonable doubt in order to establish the offences of rape and sexual assault is, therefore, that the conduct took place without consent. 
Consent 
Consent is relevant to a number of offences in the Criminal Code, but is defined only in respect of particular provisions. For the purposes of Chapter 32 of the Criminal Code, ‘consent’ is defined in section 348: 
348 Meaning of consent 
(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. 
(2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained— (a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representations about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner. 
Section 348(1) provides a definition of consent. Section 348(2) sets out a  list of circumstances in which a person does not give consent freely and voluntarily. The definition applies to the use of the word ‘consent’ in every offence contained in Chapter 32 of the Criminal Code, including rape. Strictly, it does not apply to the offence of sexual assault in section 352(1)(a) as that offence provision does not use the word ‘consent’. However, the courts continue to recognise the useful formulation of the list of circumstances in section 348(2) which may be relevant when directing juries in relation to the phrase ‘without the other person’s consent’ for the purposes of the sexual assault offence. 
The excuse of mistake of fact 
Proof beyond reasonable doubt as to absence of consent is central to proof of the offences of rape and sexual assault. There is, however, an excuse which may be available to a defendant at trial. Section 24 of the Criminal Code provides: 
24 Mistake of fact 
(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject. 
In the context of a trial of a charge of rape or sexual assault, a defendant who honestly and reasonably, but mistakenly, believed that the complainant was consenting is not criminally responsible. 
Criminal law practice and procedure 
Upon the making of a complaint to a police officer, a decision to prosecute the alleged offender must be made. In deciding whether or not to prosecute, a police officer must be satisfied that there is sufficient evidence and that the public interest requires a prosecution. In practice, it will rarely be the case that it is not in the public interest to prosecute an allegation of rape or sexual assault, so the primary test for the decision to prosecute is the sufficiency of evidence. A police officer must consider all aspects of the evidence to be presented, including admissibility and reliability of evidence and possible defences or excuses. These same issues will be considered by the Police Prosecution Corps or the Office of the Director of Public Prosecutions before a decision is made to continue a prosecution. 
In Queensland, trials for offences of rape and sexual assault will usually involve a judge and jury.  Relevantly, the role of the judge is to ensure the trial is conducted according to law. The role of the jury is to consider the evidence, apply the directions on the law given by the trial judge and return a verdict of guilty or not guilty. 
The verdict of the jury is to be reached only on the evidence heard during the course of the trial. Evidence consists of the oral testimony from witnesses and any exhibits received during the trial. In relation to the oral testimony of a witness, the jury can accept or reject all or part of a witness’s testimony. Generally, exhibits are documents, photographs, recordings and other materials relevant to the trial. 
The process of a trial commences with the prosecution addressing the jury in relation to the evidence expected to be heard from prosecution witnesses during the trial. Those witnesses are then called to give evidence. This process involves the prosecutor taking evidence-in-chief from the witness followed by defence counsel testing that evidence through cross-examination, for example, by identifying inconsistencies in a witness’s story and raising questions about their credibility. If necessary, the prosecutor is able to re-examine the witness for the purpose of clarifying the witness’s evidence. The same process is followed for each witness. 
Once the prosecution has presented its case, the defendant has the opportunity to give or call evidence. A defendant is under no obligation to give or call evidence. It is central to the criminal justice system that the prosecution must satisfy the jury that a defendant is guilty of a charge and guilt must be proven beyond reasonable doubt. The defendant is presumed to be innocent unless it is proven otherwise, and is therefore under no obligation to produce evidence at any stage of the trial process. If the defendant chooses to give or call evidence, the process will be the same as for prosecution witnesses. 
The term ‘beyond reasonable doubt’ is the standard to which a jury must be satisfied in relation to each element of an offence before they can convict a defendant of that offence. The concept of beyond reasonable doubt is a matter for a jury to determine. The Supreme and District Courts Criminal Directions Benchbook (the ‘Queensland Benchbook’) gives this guidance:  
Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities.” That is, the case must be proved to be more likely than not. 
In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt. 
It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If you are left with a reasonable doubt about guilt, your duty is to acquit: that is, to find the defendant not guilty. If you are not left with any such doubt, your duty is to convict: that is, to find the defendant guilty.
Once all witnesses have been called, the prosecution and defence will  address the jury and present arguments about the evidence given. The judge will then ‘sum up’ to the jury.  This involves explaining to the jury the law they are to apply to their deliberations and the issues that they are to consider.   
The jury is to return a verdict of guilty (convicted) or not guilty (acquitted) in relation to each charge. The jury must try to return a unanimous verdict.
In discussing consent the paper states
Consent plays a significant role in contemporary society across many domains of social life and, as a consequence, in many areas of the law. Relevantly, this includes the criminal law relating to sexual offences. 
Historically, rape offences were ‘aligned with women’s civil and legal status as the property of the dominant male family member’, and the ‘violent appropriation of women belonging to others’. In modern liberal society, rape and sexual assault offences are more often defined by the absence of consent within a broader context of recognition of individual rights of bodily integrity and human dignity.  This recognises that ‘[t]he essence of the wrong done is the violation of sexual autonomy rights’, namely, a person’s freedom from unwanted sexual interferences. 
There is a vast amount of academic literature on the philosophy and theory of consent. There is general consensus about the importance and role of consent, but the nuances and complexities of what consent may require in different situations is the subject of debate. 
Consent acts as ‘a criterion of legitimacy’, transforming an act or practice that might otherwise be impermissible into one that is sanctioned (at least so far as the consent aspect is concerned). 
Consent is also understood as ‘a transaction between two agents’, where one person’s consent releases the other person from a duty either to refrain from or to perform some action. 
Three main views about what constitutes consent are distinguished in the literature:  • Consent as a mental state where consent is a particular mental state or mental action of the consenting person (the mental view). Consent is distinguished from its communication. • Consent as a manifest act, that is, performing a positive act of consent, (the performative action view)—where there is no consent unless it is communicated in some way, whether verbal or non-verbal. • Consent as both a mental state and a manifest act (the hybrid view). 
To be effective, consent must be valid. Three conditions for valid consent are widely recognised:  • The consenting person must be ‘competent’ to do so (that is, they must have the requisite capacity to consent).•The consenting person must be ‘informed’ as to the nature of the matter to which they are consenting. • The consent must be free and voluntary (that is, it must not, for example, be coerced). 
Criminal responsibility where there is a lack of consent 
In the context of sexual offences, the giving of consent has not, for understandable reasons, been reduced to a formula and is often not indicated verbally or overtly, but rather by ‘conduct and implication’.  The complexity surrounding what should and should not be regarded as consent, and the need to ensure greater clarity over time, has been the subject of ongoing discussion. 
An important principle of criminal law is that criminal responsibility for an offence will ordinarily arise only if the defendant has acted in a wrongful or blameworthy way. 
Sexual intercourse without the other person’s consent is widely recognised as a criminal offence across many jurisdictions. However, it does not necessarily follow that a person who has sexual intercourse, honestly believing that the other person is consenting when they are not, should be liable to conviction for an offence. This is recognised in the availability of the excuse of mistake of fact under both the common law and in jurisdictions like Queensland where the criminal law has been codified.
The Commission seeks views on the following questions:
Q-1 What aspects, if any, of the definition of consent in section 348 and the excuse of mistake of fact in section 24 of the Criminal Code, as it applies to rape and sexual assault, give rise to particular concern or cause recurrent problems in practice? What is the basis of these concerns or problems? 
Q-2 What considerations and principles should be taken into account in determining whether the definition of consent in section 348 and the excuse of mistake of fact in section 24 of the Criminal Code, as it applies to rape and sexual assault, should be changed? 
Affirmative consent model 
Q-3 To what extent does the definition of consent in section 348 of the Criminal Code accord with community expectations and standards about the meaning of consent? 
Q-4 Should the definition of consent in section 348 of the Criminal Code be amended, for example, to expressly require affirmative consent? Why or why not? 
Q-5 If yes to Q-4, how should the definition be amended, for example: (a) by expressly including the word ‘agreement’? (b) by expressly providing that a person does not consent if the person does not say or do anything to indicate consent to the sexual act? (c) by expressly providing that a person must take steps or reasonable steps to ascertain that the other person is consenting to the sexual act (and that they must do so in relation to each type of sexual act involved)? (d) in some other way (and if so, how)? 
Q-6 What differences and what advantages or disadvantages might result from such changes?  
Withdrawal of consent 
Q-7 Should section 348 of the Criminal Code be amended to include an express provision that a sexual act that continues, after the withdrawal of consent, takes place without consent? Why or why not? 
Circumstances when consent is not freely and voluntarily given 
Q-8 Should section 348(2) of the Criminal Code be amended to extend the list of circumstances in which ‘a person’s consent to a sexual act is not freely and voluntarily given’? Why or why not? 
Q-9 If yes to Q-8, should the list of circumstances in section 348(2) of the Criminal Code be extended, to include: (a) where: (i) the person is asleep or unconscious when any part of the sexual act occurs; or (ii) the person is so affected by alcohol or another drug as to be incapable of consenting to the sexual act? (b) where the person fails to use a condom as agreed or sabotages the condom? (c) where the person agrees to a sexual act under a mistaken belief (induced by the other person) that the other person does not suffer from a serious disease? (d) where the person consents to a sexual act under a mistaken belief induced by the other person that there will be a monetary exchange in relation to the sexual act? 
Q-10 Should other specific circumstances be included in section 348(2) of the Criminal Code? If so, what should they be? 
Q-11 If yes to Q-8 to Q10, what differences and what advantages or disadvantages might result from any changes? 
The operation of section 24 
Q-12 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code, as it applies to the question of consent in rape and sexual assault? Why or why not? 
Q-13 Where the excuse of mistake of fact as to consent is relied upon in rape or sexual assault, should the onus of proof: (a) remain unchanged, so that it is for the prosecution to disprove the defendant’s mistaken belief; or (b) be changed, so that it is for the defendant to prove the mistaken belief was honest and reasonable? Why or why not? 
Q-14 If the onus of proof were changed, what advantages or disadvantages might result? 
Recklessness 
Q-15 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to introduce the concept of ‘recklessness’ with respect to the question of consent in rape and sexual assault? Why or why not? 
Q-16 If yes to Q-15, how should this be achieved? For example: (a) Should the excuse of mistake of fact be excluded if the defendant was reckless as to whether or not the complainant was consenting? (b) Should ‘recklessness’ be defined in the Criminal Code and, if so, how? 
Q-17 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 
Reasonable steps 
Q-18 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to require a person to take ‘steps’ or ‘reasonable steps’ to ascertain if the other person is consenting to the sexual act? Why or why not? 
Q-19 If yes to Q-18, how should a ‘steps’ or ‘reasonable steps’ requirement be framed? For example: (a) Should the requirement be framed as a threshold test, to the effect that the excuse is not available to a person who did not take positive and reasonable steps, in the circumstances known to them at the time of the offence, to ascertain that the complainant was consenting to the sexual act?   (b) Alternatively, should the requirement be framed as a matter to be taken into account by the trier of fact when assessing whether a person’s mistaken belief as to consent was reasonable? 
Q-20 If a ‘steps’ or ‘reasonable steps’ requirement were introduced, should the Criminal Code specify what steps or reasonable steps should be considered? If yes, what should the specific steps or reasonable steps be? 
Q-21 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? For example: (a) Might a ‘steps’ or ‘reasonable steps’ requirement have the effect of reversing the onus of proof for a defendant? Why or why not?  (i) If a ‘reasonable steps’ requirement is introduced, should the onus fall on the defendant to show that they took steps or reasonable steps? (b) Might a ‘steps’ or ‘reasonable steps’ requirement unfairly exclude the availability of the excuse of mistake of fact to particular categories of defendants? Why or why not? 
Intoxication of the defendant 
Q-22 Is there a need to amend or qualify the operation of the excuse of mistake of fact in section 24 or otherwise amend the Criminal Code to specify in what way a defendant’s intoxication affects the assessment of mistake of fact as to consent? Why or why not? 
Q-23 If yes to Q-22, how should intoxication of a defendant operate in respect of the question of honesty and/or reasonableness of a defendant’s belief as to consent? 
Q-24 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 
Statement of objectives and guiding principles 
Q-25 Is there a need to amend the Criminal Code to introduce a ‘statement of objectives’ and/or ‘guiding principles’ to which courts should have regard  when interpreting provisions relating to rape and the sexual offences in Chapter 32 of the Criminal Code? Why or why not? 
Q-26 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 
Expert evidence 
Q-27 Is there a need for legislation to specifically permit the admission of expert evidence in trials of sexual offences in chapter 32 of the Criminal Code, subject to the discretion of the court? Why or why not? 
Q-28 If such amendment were to be made, what areas of expertise may be relevant? 
Q-29 What difference, if any, would those amendments make to the operation of the current law in Queensland, and what advantages or disadvantages might result from such changes? 
Education and awareness 
Q-30 Should there be public education programs to educate the community about issues of consent and mistake of fact?

25 December 2019

Registration

'The Paradox of National Registration in a Liberal State: The Case of Wartime National Registers in Great Britain, 1915–52' by Christine Bellamy in (2019) 134(570) The English Historical Review comments
This article traces the history of British government policy on wartime national registration from 1915 to 1952. In contrast to accounts that emphasise the significance of registration for the development of an ‘information state’, it explores the implications of the fundamental paradox in national registration in a liberal state. That is, the distinctive value of a register lies in its continuing accuracy and comprehensiveness; but these properties depend on wholesale and continuing compliance with the bureaucratic demands of a tool widely regarded in Whitehall as intrusive, coercive and unpopular. The register used in the First World War never recovered from Whitehall’s unwillingness to enforce it, and preparations for registration in a second major war were frustrated by the reluctance of its principal users — those responsible for military conscription and food rationing — to be closely associated with it or dependent on it. The article explains why a robust register was nevertheless set up in 1939, but suggests, too, that the capabilities it offered to identify and trace people were less warmly welcomed and extensively exploited by other government services than is often assumed. Furthermore, the perceived need to maximise trust in its confidentiality restricted the disclosure of information recorded in the register to other public agencies, especially the police. The overall thrust of the article, then, is to cast doubt on whether the wartime national registers in the Great Britain could have developed into a formative pillar of an emergent information state.
Bellamy argues
The significance of the introduction of a national register in Great Britain during the First World War and its subsequent use during the Second may seem obvious. During two international conflicts, the British government operated a purpose-built register of the population that was separate from pre-existing administrative records systems and capable of supporting multiple administrative functions. Every registered individual was also issued with an identity document. Yet the association drawn by A.J.P. Taylor between the growth of state power and the identification and registration of ‘law-abiding Englishmen’ (and women) was, in practice, complex: the hold of national registration proved less than absolute, with significant consequences for the later capabilities of the state. There are a number of puzzles about national registration in twentieth-century Britain which need explaining. Why was it introduced so late? Why was it quickly discontinued after 1918? Why was it abandoned, almost friendless, seven years after the end of the Second World War? After all, one might have expected the developing welfare state of the 1906–16 Liberal Government and of the post-1945 governments, both Labour and Conservative, to have seen some value in embedding the register into the management of public services. And even if the creation of a register was most strongly associated with the wartime state’s need to conscript troops and ration food, it may seem surprising that the welfare state did not build on these foundations given the many other functions a national register could have served. 
With the exception of Rosemary Elliot’s analysis of the politics of national registration in 1915–18, the necessity of such arrangements during the First World War has usually been taken for granted by historians, and even Elliot regards the flawed register compiled in 1915 as a stepping stone towards the inevitable triumph of national registration in the Second World War. But why, and by whom, a register was considered necessary to the efficient running of the wartime state in the first half of the twentieth century has never been systematically explored. Most discussion of national registers and identity cards has occurred within high-level, broad-brush accounts of the development of the ‘information state’ or of governments’ use of information technologies. In these, registration has been treated primarily as an outcome of struggles between the champions of individual liberty and national efficiency or between different conceptions of national identity, or as an early example of the surveillance of a mass population. It is widely believed that national registration expanded the means by which the British government might know, identify and trace its population, and that it symbolised the increasingly intrusive state bureaucracy necessitated by modern warfare and welfare. But there has been little interest in identifying the limits placed on the uses to which the register could be put, considering how such limits affected the register’s functions and scope, or ascertaining why it was that limits were introduced at all. And, more generally, few studies have systematically explored the ways in which national registration was shaped by policy-makers in Whitehall, and the roles of competing views within government about population registration and the inter-departmental politics of war planning. In other words, little has been written about national registration that grounds it firmly in the history of British government and administration. 
This article examines the history of wartime national registration from 1915 to 1952, with an emphasis on the often fraught inter-departmental relations in Whitehall, especially between those in charge of registration, military conscription and control of food supplies. Using extensive data available in The National Archives, it will show that, throughout this period, there was little consensus in government about whether a stand-alone, multi-purpose national register was necessary, cost-effective or politically acceptable. Far from winning the argument, as Elliot has claimed, Sir Sylvanus Vivian, the Registrar-General from 1921 to 1945, was fretting as late as the summer of 1938 about whether he would be permitted to prepare a satisfactory scheme in time for the outbreak of war. The fact that an effective national register was compiled in September 1939 does not reflect settled agreement in government about its value, purposes or scope. Rather, throughout this whole period, the development of national registration was shaped by contradictory demands. Furthermore, these contradictions do not only reflect the tensions, noted by Elliot, between the register’s twofold function as an instrument both of ‘surveillance’ and of delivering ‘entitlement’ to public services. They also inhered more fundamentally in the proposition that in a liberal society, a mass population could be induced to comply, and to go on complying, with the bureaucratic demands of a national register, the core purpose of which was the more effective enforcement of the burdens imposed on it by the wartime state. ... 
In endeavouring to introduce order into the health insurance records, Vivian formulated doctrines about large-scale administrative registers to which he adhered for the rest of his life. First, no decentralised records system can be reliable unless it runs on uniform lines, imposed from the centre and ‘rigidly adhered to’. Many British names occur frequently (the John Smiths) and are unstable in use (the same John Smith might sign himself J. Smith, J.L. Smith, Jack Smith, Johnny Smith). This means, secondly, that individuals cannot be reliably identified by name and date of birth: unique identifying numbers are also needed. Thirdly, all decentralised schemes need a central index showing the local registers in which individuals’ records are to be found. All changes, especially the issue of new cards and the replacement of lost ones, must be transacted through this central index, to ensure that no person has a live entry in more than one local register. Only thus can ‘inflation’, the besetting sin of all registers, be checked. Fourthly—and critically for the argument here—Vivian believed throughout his professional life in the importance of tempering ‘any restrictive machinery to the character of the population under control’. His early experience in national insurance taught him that the ‘genius of the nation’ was characterised by ‘the freedom of its private life from the incursions of bureaucracy, its unfamiliarity with and distaste for formalities of procedure and “red tape”’. Furthermore, wholesale non-compliance cannot be dealt with by legal sanctions because ‘it is impossible to prosecute a whole population’. The only systematic ways to ensure that everyone registers and keeps their details up to date are to place a statutory duty to register people on a limited number of responsible people (such as employers) on whom it can be enforced, or to link registration with ‘the personal self-interest of the individual or with the action which he would normally take in his own self-interest’. In other words, faced with people who were unused to filling in complicated forms or safeguarding unfamiliar documents, Vivian hoped to use their transactions with services that offered direct and immediate benefits to collect the information needed for the register.
In discussing later years Bellamy states
The comprehensiveness and reliability of the register used between 1939 and 1952, together with the range of information it eventually provided to other government agencies, has led it to be regarded as a potentially significant step in building capacity in British government for keeping its population under surveillance. It certainly provided infrastructure for what Higgs labels an ‘information state’; one characterised by the ‘generalised and structured collection’ of information about the population in ‘standardised form for ease of analysis and retrieval’. But, as Higgs recognises, national registration was a cul de sac. It was terminated in 1952 and, despite several attempts, was never resurrected; and we will see that even its contemporary achievements have been overstated. But it did — temporarily —enlarge the capacity of the British state for processing structured, searchable information about its population. First, this enhanced its capacity for social and demographic analysis. The register supplied timely data about population movements and demographic change, both for wartime manpower and social planning and for post-war reconstruction. Most data were supplied in aggregated, non-identifiable form, but the register also supplied sampling frames containing identifiable data to the Medical Research Council, the Nuffield Foundation and several universities and charities, on the strict condition that the source was not revealed to research participants. Mainly because the central register recorded changes of address between registration areas, the register also provided, at least in principle, the means to identify and trace a very high proportion of the population. Its core work was in support of conscription and rationing, as described above. But by 1949, information was being supplied from up to fourteen government agencies, and presenting an identity card had become necessary to obtain a passport, access labour exchange services and council house waiting lists, make a war damage claim, or withdraw money from the Post Office Savings Bank. The most voluminous services of information were routine ones to other government departments, consisting of dates of birth to verify claims for the new family allowances and for the repayment of post-war credits. After 1948, the register also supplied the addresses of beneficiaries or contributors with whom the Ministry of National Insurance (MNI) had lost touch. By 1951, the CNRO had provided MNI with 750,000 addresses and 1.3 million dates of birth from a register of about 43 million people. Deaths and embarkations were also notified to the NHS so that patient lists could be updated, a process assisted by the adoption of national registration numbers for primary care—although not for hospital—records when the NHS was set up in 1947–8. Information was also supplied to the cancer register, to follow up tuberculosis patients, and to trace absconders from mental health institutions. The register was used to update the Home Office’s statutory aliens register; a special tracing service was provided under the Defence Regulations to Special Branch, M15 and the Bank of England; and information about suspected criminals given to the police. No agency was given direct access to the register. Disclosures generally consisted of specific items of information, usually addresses or dates of birth, provided on standard forms from which agencies updated their own records. 
Almost all disclosures from the register, including those to government departments, were made under section 8(2) of the National Registration Act (1939), which prohibited disclosure on pain of criminal sanction, except by explicit authorisation of the Minister of Health or Registrar-General. These provisions were in line with those governing the decennial census, but they also reflected a general convention about confidentiality then applied in departments responsible for large-scale administrative systems, particularly personal taxation, national insurance and public assistance. It was clearly restated by a Home Office minister in 1949, replying to parliamentary pressure for the register to offer ‘facilities’ to enforce maintenance orders: It was undoubtedly the intention of the House that that information should not be revealed from that source unless it was for the purpose of criminal proceedings or for matters of similar importance ... I think it would be recognised—and this is true of other Departments as well—that the Departments do receive the information that comes into their hands for a quite specific purpose concerning those Departments and this House in many Bills ... where provision has been made for the obtaining of information, has always insisted that the information should be used only for that purpose and not for others. 
This approach was politically defensible, but it was also intended to establish and maintain trust in the register, and thus maximise public compliance with registration, by avoiding disclosures that would ‘impair the efficiency of the National Register machinery in securing its main purpose, by stimulating public hostility and an unwillingness to co-operate in the notification of changes of address’.  This reasoning was explained by George North, Vivian’s successor, to a senior Treasury official who unsuccessfully pressed the GRO to help trace debtors of government departments: So long as the information in the National Register is regarded as confidential the public will freely notify such events as changes of address and tell us the truth about their ages etc. As soon, however, as the citizen knows that the information he gives ... may at any time be used against him we shall begin to lose the confidence of the public, and that is bound to affect the accuracy and up-to-dateness of the Register on which its usefulness depends. 
The confidentiality of personal information was not absolute, however, and the responsible minister had discretion to authorise disclosure as he saw fit. After 1945, the GRO was faced with a growing number of requests for information, often stemming from social dislocation in the aftermath of war, including a moral panic about deserted wives. So officials were forced to judge when disclosure—or more often, a refusal to disclose—was appropriate and defensible. They were also under pressure to maximise goodwill, in the light of growing uncertainty about the register’s future. It is unsurprising, therefore, that they attempted on several occasions to make policy on disclosure more explicit and consistent, and tried to tighten up practices at local level. In the process, some general conventions were confirmed. 
First, disclosures were often permitted when they were clearly in the interest of the individual whose details were sought. For example, addresses of untraced claimants for compensation were supplied to the War Damage Commission: ‘obviously a case where the information is for their advantage’. Information was similarly given to dependents of people killed in air raids, to facilitate an application for financial assistance under successive Emergency Powers Acts, as well as to departments wanting to trace people to whom unpaid wages or pensions were due. Conversely, disclosure was usually refused when it was potentially detrimental to the individual. Addresses were never supplied to commercial debt collectors, to the Inland Revenue, Customs and Excise or to local authorities seeking to recover money (for example, from ‘liable relatives’ in welfare cases), and the GRO normally refused to disclose addresses in cases of matrimonial desertion, unless compelled by a court order. Similarly, the GRO forwarded letters from relatives to missing persons rather than disclose addresses, in case an approach was unwelcome. This practice was also adopted for missing-person inquiries from the British and International Red Cross, the War Office Casualty Branch and the World Jewish Congress, but not from the Salvation Army or Citizens Advice Bureaux who were unable to vouch for inquirers. Addresses were given, however, to local education authorities so that they could trace the parents of deserted evacuees, on condition that no attempts were made to reclaim billeting costs. 
How extensively the register should be used to assist the police was a much tougher question because, much more than the security services or the military, the police interacted with the civilian population on whose co-operation it was thought to depend. As with other government departments, the GRO tried to restrict disclosures to the police to cases of ‘serious’ crime and ‘national security’, but it was difficult to specify, let alone enforce, a threshold: requests required the sole authorisation of a senior police officer, and local registration clerks often lacked the confidence or expertise to resist. The GRO feared that that requests from the police would become administratively burdensome, but, above all, that they would incentivise large numbers of people to evade registration and would bring the register into disrepute. For similar reasons, North became increasingly nervous about the continued use after the war of section 6(4) of the National Registration Act, which permitted police officers to require individuals to produce their identity cards (the visible token of national registration and thus the focus of much of the antipathy to it). Indeed, his Minister of Health, Aneurin Bevan, tried unsuccessfully to have this power abolished on the grounds that it was inappropriate in peacetime. North particularly disliked a Statutory Order of May 1941 which permitted its use for minor traffic violations, including parking offences. This order was used most frequently by the Metropolitan Police, who kept a special register of traffic offences and claimed that the unique numbers provided by identity cards guaranteed its accuracy. The Home Office consistently argued that, so long as the register continued, police forces should be allowed to make full use of it, so the GRO could only plead with Chief Constables to limit the use of section 6(4) powers to exceptional cases. In the event, it was Clarence Henry Willcock’s refusal to obey Constable Muckle’s instruction to produce his identity card when he was stopped in London for speeding that led on 26 June 1951 to notoriously damning remarks by Lord Chief Justice Goddard, which finally undermined the legitimacy (though not the legality) of peacetime national registration. On 27 June, the 1941 Order was withdrawn, and, after meeting the Home Secretary, the Acting Metropolitan Police Commissioner instructed that section 6(4) powers be used only in cases of serious crime or desertion, because ‘public opinion will not support in time of peace the free use of what was originally a war time measure’. But the damage had been done. Despite increasing international tension associated with the Korean War, which led many civil servants to expect a reprieve, the Conservative Government elected in October 1951 immediately took the decision to terminate the register, and it ceased to operate on 21 February 1952. 
It is impossible to know how scrupulously conventions about disclosure laid down in London were followed in local offices. We have seen that there was anxiety during the First World War about the susceptibility of local registration officers to pressure from recruiting officers to provide information outside agreed procedures, and that there were similar worries about their ability to withstand pressure from police forces and the security services, especially after 1945. However, a post-war Organisation and Methods (O&M) report by the Treasury complained that few local registers were actually marked up, as required, to enable people of special interest—including aliens, deserters and suspected criminals—to be traced if their addresses changed. That, is, although local registration staff may well have released information informally to other local agencies, local registers were not systematically maintained such that individuals could reliably be traced. This neglect may have reflected squeamishness among local officers about the disciplinary functions of the register, or it might, more probably, indicate indifference born of more urgent demands. For the fact is that the provision of identification and tracing services to other agencies formed only a small part of the register’s work, especially at local level. Most effort went into maintaining the register itself. According to the O&M report, the register absorbed 15,420 staff weeks in the first six months of 1947, but, while 63 per cent (9,868) were devoted to the maintenance of the register, only 3 per cent (485) went to supporting (post-war) national service and less than 1 per cent (83 and 96 respectively) to providing addresses and dates of birth for all purposes. To make the point another way: routine administrative notifications relating to national insurance and conscription aside, only 100,000 addresses were supplied by both local and central offices throughout the register’s lifetime to ‘other government departments and agencies’, including the police and security services.
 'Surveillance in Weak States: The Problem of Population Information in Afghanistan' by Ali Karimi in (2019) 13 International Journal of Communication comments
Surveillance scholarship has long been focused on surveillance technologies in strong states. This article explores the technological challenges of governing Afghanistan, a weak state, where reliable population data do not exist. In assessing the ways governance is practiced in a country of “ghosts,” I show that the failure of the state in Afghanistan is linked to a chronic poverty of reliable information on the country’s population and geography. A weak state with limited access to reliable population data must use force instead of knowledge to govern the country. I also argue that the digital technologies of surveillance practiced by the Afghan state and the U.S. military to substitute for the lack of traditional forms of government data are not effective and cannot strengthen the state’s capacity to deliver services. In contributing to debates on surveillance and security, this article provides a technological critique of state failure in Afghanistan by highlighting the costs of poor population information.

24 December 2019

Strip searches

In an article earlier this year I discussed NSW Police practice regarding strip searches - subsequently in the news regarding searches of minors at entertainment events - and the judgment in Attalla v State of NSW [2018] NSWDC 190   The later searches suggest that the thin blue line still has not got the message regarding dignity and privacy.

The article included the following
In Attalla  the NSW District Court has noted egregious disregard by NSW Police personnel of requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [aka LEPRA], awarding the plaintiff $112,387 for an unjustified and incorrectly conducted strip search alongside unlawful detention. The Act specifically referred to regard for privacy in the conduct of searches. 
Steven Attalla was arrested in a public place during March 2015 for hindering police in the execution of their duty. At that time he was 53 years old, with no relevant criminal record. Senior Constable Courtney Cruickshank told Attalla that she reasonably suspected him of being in possession of prohibited drugs. His ‘hindrance’ took the form of rejecting her proposition that he be searched. Attalla was then wrist locked, handcuffed, taken in the rear cage of a police wagon to Kings Cross Police Station and strip searched. That involved him removing his pants and underpants, lifting his genitalia to allow inspection and squatting while naked. Proceedings after a Court Attendance Notice for hindering police were ultimately dismissed. Attalla sued the State for wrongful arrest, and assault and battery by the police officers. 
The State conceded that both the strip search and his continued detention after that search were unlawful. The Act provides for warrantless stop, search and detention of persons whom NSW police officers suspect on reasonable grounds of having control/possession of anything stolen, prohibited plants or prohibited drugs. Section 32 of the Act specifically refers to privacy, mandating protocols regarding searches by a police officer or other person. The search must be conducted “in a way that provides reasonable privacy for the person searched”, “as quickly as is reasonably practicable” and as least invasive as practicable in the circumstances. Further, conduct of the search must not encompass the person’s genital area unless the police officer or person suspects on reasonable grounds that it is necessary to do so for the purposes of the search. 
Attalla referred to insulting language. More saliently, he characterised the search as an invasion of privacy, with hurt, humiliation, disgust and embarrassment. “It was outrageous. It was something that I thought I'd never ever be in a position to be treated in such a humiliating fashion". The State, in contrast to Officer Cruickshank, conceded the search was unlawful, "humiliating" and "difficult". 
Is there a systemic problem? The Court noted
Officer Cruickshank admitted a lack of familiarity with the requirements of s 31. The pre-requisites in s 32(2), (3), (4), (5), (6), and (7) were not established on the evidence. Yet the State, to the conclusion of submissions, maintained that the strip search was only a technical breach. Neither of the two male police officers who conducted the strip search gave evidence of a suspicion on reasonable grounds that it was necessary to search the genital area of Mr Attalla for the purposes of the search, as s 32(6) requires.
In considering damages the Court indicates that by the time of the strip search Officer Cruickshank no longer suspected that Attalla possessed prohibited drugs. Damages were aggravated by the absence of any evidence explaining the purpose and need for the strip search. Although it might be possible that a strip search could reveal drugs that might not have been identifiable by an ordinary search, that was not explained and there was no evidence as to whether alternatives to the invasive procedure were considered. 
The Court thus commented
The State's concession in relation to the strip search illustrates that the police officers have used a most invasive power without the slightest justification. None of the several requirements in ss 31 and 32 of LEPRA were the subject of evidence or submissions. The grievous nature of the offensive conduct might be mitigated in circumstances of urgency or turmoil, but here the admitted worst offence, the strip search, was done in the relative peace of the police station, where there was no resistance from Mr Attalla. Even this did not produce any consideration of the requirements of the law governing strip searches by any officer, apparently because Officer Cruikshank had some time ago determined to proceed with the strip search. I am not persuaded that she retained a bona fide belief in the need for the strip search to locate the once suspected drugs.
The Court noted New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 and Adams v Kennedy (2000) 49 NSWLR 7 regarding the award of exemplary damages, with Ibbett characterising that award as ‘a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government’. The State's schedule of damages referred to the humiliation of Mr Attalla from its unlawful conduct, but, in the Court’s view, grossly understated the appropriate level of damages. 
What can we make of the judgment? It is not a crime to be busy texting while sitting on a fence in one of the busier streets of Darlinghurst at 3:30 am but police might well have suspicions. Those suspicions need to be reasonable. More importantly, law enforcement agencies need to ensure that their personnel are acquainted with and abide by law regarding detention and searches. The unlawful detention in Attalla is regrettably not isolated - see for example New South Wales v Quirk [2012] NSWCA 216, Majindi v Northern Territory of Australia (2012) 260 FLR 459, Randall v New South Wales [2013] NSWDC 277, Hamilton v State of New South Wales (No 3) [2016] NSWSC 1311, Raad v State of New South Wales [2017] NSWDC 63, Costello v New South Wales [2017] NSWDC 152, Hemelaar v Walsh [2017] QDC 151, Lule v State of New South Wales [2018] NSWCA 125, Gibb-Smith v State of New South Wales [2018] NSWDC 204 and Johnson v State of South Australia [2019] SADC 35 - and arguably has attracted inadequate remedies, with damages rarely more than $30,000. ... 
[T]he salient conclusion is that disregard of the personal sphere, extending beyond strip searches to cavity searches and coerced provision of DNA is permissible in Australian law if agents of the state act lawfully. In Attalla they did not and it disquieting that the casualty in this instance was required to hold the state to account.
The 2019 Rethinking Strip Searches by NSW Police report by Michael Grewcock and Vicki Sentas notes
There are some common characteristics but also important variations in police powers and practices relating to strip searches in Australian jurisdictions. In most Australian jurisdictions, police powers are embedded in several pieces of legislation rather than a consolidating Act like LEPRA, supplemented by guidance in the form of Statutory Regulations and Codes of Practice, Standard Operating Procedures, Manuals and other internal police guidelines. Typically, it is these less-accessible non-statutory documents that provide important detail as to how police ought to interpret the statutory thresholds for – and restrictions on – the conduct of strip searches. The lack of standard statutory frameworks and the opaque nature of internal guidance, combined with the general difficulties in regulating police discretion prior to charges reaching a court, makes identifying systemic patterns regarding strip search practices across Australia more difficult. However, it is important to compare key features of the different Australian strip search regimes as a first step to considering possible reforms in New South Wales. 
4.2 LEGAL THRESHOLDS 
In all jurisdictions, with some narrow exceptions, reasonable suspicion operates in common law and statute as the initial threshold for conducting a personal search in the field without a warrant and before arrest. However, the suspected offences for which personal searches can be conducted vary.
Table 13: Personal search power before arrest if officer has reasonable suspicion of the following offences 
NSW - Possession of stolen or unlawfully obtained goods, indictable offences, relevant offences (dangerous substances, weapons, firearms, explosives), and prohibited drugs (s21 LEPRA). 
VIC - Prohibited drugs, volatile substances, weapons and graffiti implements.  NB: if a search is conducted in a designated area under ss10D and 10E Control of Weapons Act, no reasonable suspicion is required. 
SA - Possession of a controlled substance;  possession of stolen goods; possession of an object that constitutes an offence, or evidence of the commission of an indictable offence. 
QLD - Possession of unlawful dangerous drugs, knives and weapons, commission of a summary offence and consorting. 
TAS - Hawking, stolen goods, anything intended for use in committing an indictable offence, poisons or liquor, controlled substances, firearms and objects related to family violence. 
ACT - Drug offences, if police have consent of the person or if taken into lawful custody, or under a warrant or in circumstances of seriousness and urgency or under a court order;  Possession of anything relevant to a serious offence or something stolen or otherwise unlawfully obtained, and the personal search is necessary to prevent the thing from being concealed lost or destroyed and it is necessary to exercise the search without a search warrant because the circumstances are serious and urgent.  NB: this later provision of the Crimes Act only authorises frisk or ordinary searches. 
WA - Possession or control of anything relevant to any offence. 
NT - Carrying anything connected with an offence or possession/conveyance of a dangerous drug.
The Australian Capital Territory is the only jurisdiction which sets out additional conditions for the exercise of search powers, as well as requiring reasonable suspicion of a specified offence.  
Differences in the definition of a strip search  
In most Australian jurisdictions, there are distinctions between (variously defined) basic, ordinary, frisk or pat-down searches, which are limited to touching or seeking the removal of outer clothing, and full, intimate or strip searches involving the removal of some or all of a person’s under-clothing. Across all jurisdictions, the person’s cooperation should also be sought, but in the event of it being declined, police can use “reasonable force” to conduct the search. Intrusive intimate or cavity searches, which require either a warrant or the authorisation of a senior police officer, and typically involve some closer inspection and/or touching of the anus or vagina, can also be conducted if carried out by a registered medical professional. 
• In Queensland, while searches are defined to include a frisk search, there is no specific definition of a strip search. Rather, a police officer conducting a lawful search under the relevant Act “may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body”. 
• Likewise, in the Northern Territory, the statutory power regarding personal searches is structured around the right of the police to search someone’s ‘person’ and his/her clothing without distinguishing the types of searches. A category of ‘non-intimate procedure’ includes, “examining a part of the body other than genitals, anal area, buttocks or breasts” on approval of a superintendent or higher, and does not prohibit touching. “Intimate procedures” requiring a court order include “examining the body either internally or externally”. 
• South Australia defines an “intimate” (strip) search more expansively than New South Wales to include touching: “... a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts” and falls short of an intrusive search requiring a medical practitioner. As discussed below, police may only perform an intimate search when a person is in lawful custody on a charge. 
Victoria, the Australian Capital Territory, Western Australia and Tasmania all have standalone, similiar definitions limited to visual inspection: 
• Victoria and the Australian Capital Territory define strip searches in an identical manner to New South Wales. 
• Western Australia and Tasmania use a similar definition to that of New South Wales. Albeit framed in different language (for example, in Western Australia, “search the person’s external parts, including his or her private parts”) like New South Wales, these are only visual searches, and exclude visual inspection of body cavities. 
Notwithstanding definitional distinctions, there is a common principle across all states that personal searches should be no more intrusive than is necessary for the purpose of investigating evidence on or in the control of the person in relation to the suspected offence. Moreover, strip searches should be conducted as a last resort and, in most (but not all) jurisdictions, only when required by the seriousness and urgency of the circumstances.  
Thresholds for strips searches  
Nationally, the two key differences in strip searching laws are the circumstances required to justify a strip search, and whether they are authorised to be used in the field and in police stations, or only post-arrest in police stations. In the field: expansive approaches In New South Wales, as discussed at 2.3 above, strip searches that are not conducted in police stations or places of detention should only occur when “the seriousness and urgency of the circumstances make the strip search necessary” (s31(b) LEPRA). However, as discussed at 3.1 above, it is clear that strip searches are increasingly being conducted at music festivals and other sites such as railway stations, often in relation to lower-level drug offences (such as possession of a small quantity of drugs for personal use), and in circumstances where there is no immediate, serious threat to personal safety. In effect, the combination of a drug detection dog’s reaction and the ‘positive’ outcome of a strip search are being used routinely to constitute the reasonable suspicion required as an initial threshold for an arrest under s99 LEPRA for offences that may also be dealt with by way of a caution or on-the-spot fine. 
Strip searches in the field are also enabled for drug and other offences by the legislation in Queensland, the Northern Territory, Western Australia and Tasmania. In each of these jurisdictions, the power is broadly defined and vested largely in the exercise of police discretion. Moreover, there is no consistent threshold across these states for when a strip search may be conducted. 
In Queensland, a strip search can be conducted where “necessary” in relation to a “prescribed circumstance” such as the possession of “an unlawful dangerous drug”.   
In the Northern Territory, police can conduct personal searches of a person or their clothing if there is reasonable suspicion that the person is carrying anything connected with an offence or  possesses a dangerous drug, and the seriousness and urgency of the circumstances warrants the search.  In addition, a “non-intimate” procedure (an examination of the body except for genitals or breasts) can be authorised by a Superintendent who reasonably suspects the person has committed a crime, or if they are in custody charged with an offence punishable by imprisonment. 
In Western Australia, a strip search can be conducted if there is reasonable suspicion a person possesses anything in relation to an offence.  No other thresholds are set out in the legislation.  
Offence based/post arrest strip searches: Victoria, South Australia and the Australian Capital Territory  
In diverse ways and to varying degrees, the legislation in Tasmania, Victoria, South Australia and the Australian Capital Territory takes a less expansive approach to strip searches in the field. 
In Tasmania, either a “basic” (ordinary search) or a strip search can be conducted if a police officer has a “reasonable belief” the person possesses a prohibited drug.  Notably, if the officer has a reasonable suspicion the person has drugs concealed in their body cavities, the strip search power is not to be used. Instead, police must bring the person before a magistrate to determine if a medical practitioner will be authorised to examine the person.  The other circumstance where strip search may be used is on execution of a search warrant of a place, after a person has been arrested for an offence. 
Victoria - In Victorian legislation, “full” (strip) searches in a police vehicle or other private area are limited to situations where a person is reasonably suspected of possessing a weapon and if, after a personal search, there are reasonable grounds for believing the person is concealing the weapon on their person, and there are reasonable grounds for believing that the seriousness and urgency of the circumstances requires a strip search to be carried out. 
It is noteworthy that both the Victorian and Tasmanian thresholds for strip searches (reasonable grounds to believe) are higher than the reasonable suspicion required in New South Wales.  According to the Victoria Police Manual (VPM), “full” (strip) searches should “only be considered and approved when authorised by legislation or where there are reasonable grounds to believe that a pat- down search may not reveal all available evidence or other things” (emphasis added).  In relation to a “large number of persons at an entertainment or similar venue”, approval from a Superintendent to conduct a strip search is required. The considerations to be taken into account by a Superintendent outlined in the manual are: the degree to which the person should be searched; the nature of the offence and the circumstances of the arrest; the demeanour, recent behaviour and prior history of the person being searched; whether there are reasonable grounds for conducting the search; and whether the overarching principles (see below) have been considered. 
The VPM states that all personal searches are subject to an overarching principle that when “considering whether to search a person [police officers] must balance: the possible infringement of the individual’s rights against any perceived security risk; and the necessity of the search against the degree of forced used, the difficulty of the search, the inconvenience caused by the search, and the advisability of continuing the search in these circumstances”.  This overarching principle must be taken into account with the factors outlined above before a full (strip) search can be authorised but does not appear to be stipulated in any legislation. 
While the Control of Weapons Act outlined above provides the only explicit authorisation in law for the use of strip searches in Victoria, the extent to which police exercise their discretion to conduct strip searches and apply the strip search policy principles is unclear. As in New South Wales, the scope of personal searches for drugs has expanded considerably through the use of sniffer dogs (Passive Action Detection Dogs) “in street areas where (the police believe) there are high levels of open-air drug trafficking”,  in high profile policing exercises such as Operation Safelight, launched in April 2017, and at large events such as music festivals. Anyone seeking to enter events covered by s90 Major Events Act 2009 can also have their bags searched and be required to turn out their pockets without a requirement of reasonable suspicion. Reported amendments to the legislation extending this power to music festivals have failed to eventuate thus far. 
 Two jurisdictions largely limit strip searches to after a person has been arrested and taken into police custody. 
In South Australia, intimate (strip) searches by a police officer and intimate intrusive searches by a medical practitioner can only be conducted on a person taken under arrest into police custody. 
Similarly, in the Australian Capital Territory, strip searches are limited to those persons under arrest and brought to a police station. The one exception to this is an “emergency” situation where it is considered reasonably necessary to conduct a personal search to prevent the concealment, loss or destruction of anything connected with a drug-related offence and in circumstances of such seriousness and urgency to require the power to be exercised without a warrant. Such a search may include the removal of any clothing that the person is wearing.   
Once an arrested person is brought to a police station, a strip search may be conducted if there are reasonable grounds for suspecting a person possesses evidence of an offence or a seizable item, that inspection of a person’s body will provide evidence of a person’s involvement in an offence, and that it is reasonably necessary for the purposes of recovering the thing or discovering the evidence. 
In general, once a person is taken into police custody, there are few restrictions of the type of offence for which a strip search can be conducted. However, the norm across Australian jurisdictions is that reasonable suspicion is still required and that some clear evidentiary or personal safety purpose needs to be served for a strip search to be lawful. It cannot be conducted as a matter of routine.

Interpretation

'A Purposive Approach to Interpreting Australia's Complementary Protection Regime' by Alice Lloyd in (2019) 43(2) Melbourne University Law Review comments
Under international human rights law, states have an obligation to protect individuals who would otherwise be returned to a place where they would suffer significant harm. This obligation sits alongside, and is ‘complementary’ to, a state’s obligations to refugees under the Refugee Convention. By virtue of legislation enacted in 2011, the international obligation to provide ‘complementary protection’ has been codified to form part of Australian domestic law. While designed to align Australia’s protection visa system with international standards, the drafting of s 36(2)(aa) of the Migration Act 1958 (Cth) has left open a degree of uncertainty as to its application. This article examines how the addition of a single word, ‘intend’, has left a gap in the system, through which many applicants — entitled to protection under Australia’s international non-refoulement obligations — may slip. This raises a unique interpretative dilemma: how should the judiciary interpret legislative provisions that are professed to comply with international law, yet stray from the terminology of their corresponding international provisions? This article advocates for the use of the modern purposive approach to interpretation, which requires selection of the interpretation that best aligns with the purpose and context of the statute. It is argued that the High Court case of SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 failed to properly apply the purposive approach in interpreting the intention requirement of Australia’s complementary protection regime.
Lloyd argues
Consider the facts of Kalashnikov v Russia, a case that came before the European Court of Human Rights (‘ECtHR’). A man is charged with a crime and placed in detention pending a hearing before the city court. For the duration of his incarceration, he is kept in a small cell with no ventilation. There are eight beds in the cell, but it usually holds 24 prisoners. The inmates take turns to sleep, but sleeping is difficult because the lights are always on, and the television always playing. A single toilet is located in the corner of the cell, with no screen to offer privacy to the inmates. Meals are eaten at a dining table a metre away. The cell is overrun with cockroaches and ants. The man endures these conditions for four years and 10 months. 
There is no doubt that the government and local authorities are well aware  of the substandard conditions of the facility. Can it be said that they intend to subject the man to these conditions? The answer is not immediately clear. Domestic complementary protection legislation was enacted in 2011 to enhance Australia’s compliance with its international non-refoulement obligations. Specifically, the legislation sought to widen the scope of protection visa legislation to cover applicants who would be subjected to torture or cruel, inhuman or degrading treatment or punishment (‘CIDTP’) in the country that receives them. Buried within the new provisions was, however, a definitional requirement at odds with the understanding of CIDTP in international law. In this article, I examine the domestic requirement that, for the purpose of meeting protection visa criteria, the CIDTP an applicant would face upon return to another state be intentionally inflicted. I do not seek to mount a challenge to the CIDTP definitions in the enacted complementary protection legislation. Rather, I take the law as it stands, focusing upon the role of the judiciary in its interpretation. 
In three parts, I make the argument that the meaning of the intention requirement in the complementary protection regime cannot be given a textual interpretation isolated from the context and purpose of the statute. Recourse to the statute’s purpose — compliance with Australia’s international non-refoulement obligations — is required to inform the correct interpretation of intention. I argue that an understanding of intention that sees known consequences of an act as intended should be adopted. This is on the basis that it best aligns the domestic complementary protection regime with the international complementary protection obligations that Australia has sought to implement. 
In Part II of this article, I discuss the 2017 case of SZTAL v Minister for Immigration and Border Protection (‘SZTAL’), in which the High Court of Australia upheld the rejection of two protection visa applications by the Refugee Review Tribunal (‘RRT’) on the basis of the intention requirement. The applicants were two Sri Lankan men who credibly claimed that upon return to Sri Lanka they would be imprisoned in ‘shocking conditions’. The Court confirmed the RRT’s finding that the Sri Lankan authorities did not intend — in the actual, subjective sense of the word — to subject the applicants to these conditions. Following an analysis of the case I argue that appropriate meaning of intention cannot be ascertained in the abstract, because intention is capable of multiple meanings. One possible meaning of intention encompasses knowledge of practically certain consequences, which can be described as ‘oblique intention’. The correct interpretation of the intention requirement in the complementary protection regime is dependent on the statute’s context and purpose. 
On this basis, I then proceed in Part III to advocate for a ‘purposive approach’ to interpreting the intention requirement. I use the term ‘purposive approach’ to refer to purposive theory, which calls for judicial consideration of a statute’s purpose and context in interpretation, as compared to a strictly literalist approach. dissenting judgment of Gageler J in SZTAL, who interpreted the intention requirement in light of the expressed purpose of the Australian complementary protection regime: alignment with Australia’s international non-refoulement obligations. In contrast, the majority paid only lip-service to the international context marked the end of its relevance. As distinct from existing academic discussion, I focus specifically on the implications of the purposive approach for judicial engagement with international human rights law. I argue that the proposed approach ensures that the judiciary has regard to international law when interpreting the complementary protection regime — a statute that purports to implement international obligations but deviates in its terms from those obligations. My argument is reinforced by a second proposition, founded in the normative understanding of the principle of legality and the presumption of legislative consistency with international law. I propose that the judiciary should only accept legislative interference with the right to non-refoulement where clear statutory language to this effect is discernible. 
Finally, in Part IV of this article, I apply the purposive approach to ascertain the correct meaning of the intention requirement, informed by the international human rights law context of the complementary protection regime. Firstly, I argue that regardless of whether a settled meaning of intention exists under international law, the international context of Australia’s complementary protection regime is central to its interpretation, and necessitates a broad understanding of intention. Secondly, I argue that the Australian judiciary should seek to uphold the international ‘autonomous’ meaning of the CIDTP prohibition at the core of Australia’s complementary protection obligations. I unpack the nature of this autonomous meaning, before proposing a reading of intention that does not detract from it. A normative facet to this argument is developed by drawing upon Jeremy Waldron’s theory that the international CIDTP prohibition is ‘archetypal’ of the international human rights law regime,  providing strong reason not to diminish its integrity in domestic law. I conclude that a broad interpretation of intention, which better facilitates the purpose of the complementary protection regime, is available on the text. This interpretation should be preferred to a narrow one that causes the legislation to depart significantly from the international human rights obligations it is designed to implement.

Counselling

'Role and practice evolution for genetic counseling in the genomic era: The experience of Australian and UK genetics practitioners' by Tanya Dwarte, Kristine Barlow‐Stewart, Rosie O’Shea, Marcel E. Dinger and Bronwyn Terrill in (2019) Journal of Genetic Counselling comments
Facilitating informed decision‐making regarding genetic testing is a core component of genetic counseling practice. Internationally, genetic testing is shifting toward gene panels and genomic testing, including whole exome and whole genome sequencing to improve diagnostic yield and cost‐effectiveness. This study explored genetics practitioners’ current experience with panels and genomic tests and the associated evolution of genetic counseling practice. Genetics practitioners with genomic testing experience, were purposively invited to participate in a semi‐structured telephone interview and to snowball the invitation to colleagues. Interviews conducted with participants residing in Australia (n = 9) and the UK (n = 5) were transcribed and analyzed using an inductive thematic approach. Three themes emerged: (a) Role delineation: current roles, future roles, and the influence of increasing complexity; (b) The evolving spectrum of practice: blurred boundaries between research and clinical services; impact on facilitation of informed consent; and return of results strategies; and (c) Policy and governance needs: equality of access; achieving consistent variant interpretation, reporting, and responsibility for review; managing incidental findings; and professional regulation for Australian genetic counselors. These exploratory data highlight that genetic counseling practice and the essential role of facilitating informed consent are evolving but remain patient‐centered, with core skills underpinning practitioners’ capacity to adapt.

Connection

'A Legal Duty of Genetic Recontact in Canada' by Adrian Thorogood, Alexander Bernier, Ma'n H. Zawati and Bartha Maria Knoppers (Health Law in Canada, 2019) comments
 Our understanding of the clinical significance of genomic data is rapidly evolving. The meaning of a patient’s test results can therefore change over time. Reanalysis of genomic data over time and patient recontact offer an opportunity to improve patient health. But are physicians legally responsible to do so? Professional associations worldwide are outlining best practices for genetic recontact. To inform Canadian guidelines and courts faced with this issue, we review Canadian case law to determine if there is a likely doctrinal basis for judicial recognition of a duty to recontact in genetics. Foreign guidelines or malpractice case law may not adequately reflect the peculiarities of Canada’s diverse legal and public health systems. A threshold consideration is the duration of the physician-patient relationship, seeing as physicians do not generally owe legal duties to former patients. This legal relationship endures according to the need for continued care as well as the subjective perspectives of both physician and patient. Satisfying these criteria in genetics can be difficult because of interpretative uncertainty or the absence of definitive intervention. Moreover, coordination of genetic analysis, communication, and follow-up care between healthcare professionals is complex, leading to problems of incomplete hand-off between laboratories, specialists, and primary care providers. The key challenge for plaintiffs will be to establish fault, that is, breach of a duty. Physicians in Canada traditionally have duties to diagnose, inform, follow-up and of confidentiality. We conclude that a legal duty of genetic recontact is only likely in specific circumstances where physicians acquire updated genetic information of clear health significance. This remains unlikely unless health systems or laboratories commit to systemic and adaptive reanalysis. This may change with the confluence of whole genome testing and advanced health information technologies (HIT). Whole genome sequences include millions of individual genetic variants and in turn, millions of opportunities for adaptive reinterpretation. HIT enables data sharing between laboratories, automated reanalysis of genomic test results, and new lines of communication with physicians and patients. Fundamentally, it is only health systems or institutions that can provide the infrastructure needed to adapt patient care in step with an evolving genetic knowledgebase.
'The Responsibility to Recontact Research Participants after Reinterpretation of Genetic and Genomic Research Results' (ASHG Position Statement) by Yvonne Bombard, Kyle B. Brothers, ara Fitzgerald-Butt, Nanibaa’ A. Garrison, Leila Jamal, Cynthia A. James, Gail P. Jarvik, Jennifer B. McCormick, Tanya N. Nelson, Kelly E. Ormond, Heidi L. Rehm, Julie Richer, Emmanuelle Souzeau, Jason L. Vassy, Jennifer K. Wagner, and Howard P. Levy in (2019) 104(4) The American Journal of Human Genetics 578-595 comments
The evidence base supporting genetic and genomic sequence-variant interpretations is continuously evolving. An inherent consequence is that a variant’s clinical significance might be reinterpreted over time as new evidence emerges regarding its pathogenicity or lack thereof. This raises ethical, legal, and financial issues as to whether there is a responsibility to recontact research participants to provideupdates on reinterpretations of variants after the initial analysis. There has been discussion concerning the extent of this obligation inthe context of both research and clinical care. Although clinical recommendations have begun to emerge, guidance is lacking on the responsibilities of researchers to inform participants of reinterpreted results. To respond, an American Society of Human Genetics (ASHG) workgroup developed this position statement, which was approved by the ASHG Board in November 2018. The workgroup included representatives from the National Society of Genetic Counselors, the Canadian College of Medical Genetics, and the Canadian Association of Genetic Counsellors. The final statement includes twelve position statements that were endorsed or supported by the following organizations: Genetic Alliance, European Society of Human Genetics, Canadian Association of Genetic Counsellors, American Association of Anthropological Genetics, Executive Committee of the American Association of Physical Anthropologists, CanadianCollege of Medical Genetics, Human Genetics Society of Australasia, and National Society of Genetic Counselors.
‘The law of genetic privacy: applications, implications, and limitations’ by Ellen Wright Clayton, Barbara J. Evans, James W. Hazel and Mark A. Rothstein in (2019) 6(1) Journal of Law and the Biosciences 1 comments
 Recent advances in technology have significantly improved the accuracy of genetic testing and analysis, and substantially reduced its cost, resulting in a dramatic increase in the amount of genetic information generated, analysed, shared, and stored by diverse individuals and entities. Given the diversity of actors and their interests, coupled with the wide variety of ways genetic data are held, it has been difficult to develop broadly applicable legal principles for genetic privacy. This article examines the current landscape of genetic privacy to identify the roles that the law does or should play, with a focus on federal statutes and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) and the Genetic Information Nondiscrimination Act (GINA). After considering the many contexts in which issues of genetic privacy arise, the article concludes that few, if any, applicable legal doctrines or enactments provide adequate protection or meaningful control to individuals over disclosures that may affect them. The article describes why it may be time to shift attention from attempting to control access to genetic information to considering the more challenging question of how these data can be used and under what conditions, explicitly addressing trade-offs between individual and social goods in numerous applications.
 The authors argue
People often view genetic information about themselves as private. Each person’s genome, or full complement of DNA, is unique, but the specific variants within an individual’s genome may be widely shared with biological relatives or even across the entire human population. This mixed character of the genome—as a uniquely individual assemblage of widely shared common elements—imbues it with a dual private and public significance that confounds any discussion of policy addressing genetic privacy. On one hand, DNA has been conceptualized as a unique identifier and a person’s book of life, which provides insights into many aspects of the person’s future, although perhaps not as much as many people might think. This conceptualization leads many people to want to control who has access to genetic information about them and drives calls for strong privacy protection or even personal genetic data ownership. On the other hand, genetic data are not limited to one individual, with information about one person revealing information about the person’s close and distant biological relatives. Only by studying genetic information from many people can the significance of the individual’s variants be discerned. The importance of understanding the causes of health and disease has led some to argue that people have some obligation to share data about themselves for low-risk research. 
At the same time, the very concept of ‘privacy’ has evolved in recent decades and a new model of privacy has gained ground. The traditional view of privacy as secrecy or concealment—as a ‘right to be let alone’—has grown increasingly strained in the Information Age. The Internet and ubiquitous communication technologies facilitate broad sharing of information, including highly personal information, often without the individual’s knowledge or consent. This public nature and value of the genome makes it difficult to decide what level of control individuals should have and how to provide appropriate privacy protections. A new theorization of privacy has emerged, in which concealing one’s secrets ‘is less relevant than being in control of the distribution and use by others’ of the data people generate in the course of seeking healthcare, conducting consumer transactions, and going about their lives. ‘The leading paradigm on the Internet and in the “real,”’ or off-line world, conceives of privacy as a personal right to control the use of one’s data’, including enjoying access and using it by oneself. 
Deciding how much control people should have over access to and use of genetic data about themselves has taken on increased urgency in recent years. Until recently, there simply was less genetic information to worry about, because a person’s genetic makeup could be inferred only by studying his or her phenotypic characteristics and family history. It was possible, for example, to tell something about people’s eye color genes by looking at their eyes, but not whether they had a gene variant that modestly elevated their cholesterol level or whether they were at increased risk of developing a common complex disorder. 
Dramatic advances in technology has now made it possible to examine DNA directly with increasing accuracy and decreasing cost, thereby contributing to the dramatic growth in genome-based approaches, such as exome- or genome-based sequencing, which can provide dramatically more information than single-gene tests. These genomic tests have already proven valuable in diagnosing disorders whose etiology is unknown, as can be the case for some children with developmental disability or critical illness as neonates. There is also growing interest in using genome-scale tests to answer narrower clinical questions on the ground that these approaches are more efficient than testing a more limited number of genes. But moving to genome-based technologies has consequences for an individual’s privacy because having genomic data makes it possible to examine all the genetic variants regardless of the original reason for testing. 
As this technology and our understanding of genomics have improved, a growing number of individuals and entities seek access to individual genetic information. For example, millions of people have pursued testing to learn about their ancestry and to identify previously unknown relatives, endeavors that require access to the information of others as well as their own. In addition, clinicians might seek the data to refine a patient’s diagnosis or care. Biomedical researchers might want to examine genetic information to understand the ways that genetic variation contributes to health and disease. Life insurers might want to use this information for underwriting. Parties in toxic tort cases might try to use this information to establish or rebut causation. Law enforcement might want to use the information to identify victims of mass attacks or criminal suspects. 
Numerous studies show that many people are more comfortable sharing their genetic data with physicians and researchers in the institution where they seek care than with the government or commercial entities. People also vary widely in how much they are concerned about genetic privacy and privacy in general. 
Given the diversity of actors and their interests, the increasing power of genetic technologies, and the wide variety of ways these data are held, it is difficult to develop broadly applicable legal principles for genetic privacy. As has been true since the earliest debates about genetic privacy, which began decades ago, public policy often involves balancing the rights of individuals to maintain the privacy of their genetic information with the rights of other individuals and the public to access the information. The trade-offs often implicate both personal and societal interests, which vary depending on the context. Whether the state can conduct newborn screening for genetic disorders raises different questions from whether an insurer can use genetic information for underwriting health, life, disability, or long-term care insurance, each of which presents its own challenges. In addition, the wide variety of actors and locations are subject to different regulatory schemes. 
This article examines the landscape of genetic privacy to identify the roles the law does or should play. Because of the complexity of genetic privacy law, it is infeasible to address all of the issues in a single article. Consequently, the article does not address in detail genetic privacy in reproductive genetic testing, human subjects research involving genetics, state statutes and regulations pertaining to genetic privacy, and common law actions for invasion of privacy. The article’s primary focus is on federal statutes and regulations. After considering the many contexts in which issues of genetic privacy arise, the article concludes that few, if any, applicable legal doctrines or enactments provide adequate protection. For simplicity, and to acknowledge the deep roots of these debates, the article refers to ‘genetic’ privacy, but it clearly contemplates and gives special attention to the implications of the expanding role of genomics and associated technologies.