02 February 2019

SA report on Surrogacy Law Reform

The South Australian Law Reform Institute's   Surrogacy: A Legislative Framework A review of Part 2B of the Family Relationships Act 1975 (SA) report states that the Institute was asked on 26 December 2017 to inquire into and report on certain aspects of the present law regulating surrogacy in South Australia, contained in Part 2B of the Family Relationships Act 1975 (SA), and to suggest a suitable regulatory framework for surrogacy for South Australia.

The terms of reference were
 1. To review Part 2B of the Family Relationships Act 1975 (SA), in particular the changes brought about by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) (the ‘2015 Act’) and proposed by the Family Relationships (Surrogacy) Amendment Bill 2017 (SA) (the ‘2017 Bill’). 
2. To consult with relevant experts, and other interested parties as considered suitable by the Institute, and to consider best practice from other jurisdictions in relation to the regulation of surrogacy arrangements. 
3. To make recommendations on best practice and legislative changes as a result of the investigations. 
4. To be guided by the principle that surrogacy arrangements are private arrangements between individuals with the State setting the parameters of what must and must not be agreed to, rather than taking a direct and ongoing role in the establishment and maintenance of individual arrangements. 
5. To consider the impact of the decision of 1 September 2017 of the Full Court of the Family Court of Australia in Bernieres v Dhopal (2017) 324 FLR 21; and make recommendations in respect of the issues identified in the decision if so necessary.
The report states
The option of a regulated system of commercial surrogacy favoured by some parties in consultation was not within SALRI’s terms of reference. Equally the option of banning or precluding any form of surrogacy favoured by some parties in consultation was not within SALRI’s terms of reference. The rationale of the present law throughout Australia is to allow or facilitate lawful surrogacy within Australia and deter or discourage recourse to unlawful surrogacy within both Australia and overseas, especially offshore commercial surrogacy (though how effective the present law has proved in this regard is open to debate). SALRI notes and adopts the explanation of the Hon John Dawkins MLC in introducing the 2015 Act to the South Australian Parliament as an accurate rationale of the current law: the [aim of the] current law in South Australia is to secure the welfare of children born through surrogacy, to try to make accessibility of surrogacy arrangements in this jurisdiction wider, to limit overseas use of the commercial surrogacy process, and to ensure that commercial surrogacy remains banned in South Australia. ... 
. Surrogacy is a complex and sensitive subject that raises many ethical, legal and other issues and implications. It is a topic that attracts strong and often conflicting views. Much of the research into the effects of surrogacy is both incomplete and conflicting and the long-term effects of surrogacy on the parties are still not fully known. SALRI acknowledges the sincerity of the many and often conflicting views that it has received in this reference. SALRI has had careful regard to all the views it received in consultation, but it is ultimately impossible to reconcile these views. SALRI reiterates that both options of a commercial system of regulated surrogacy and banning or precluding any form of surrogacy in South Australia are not within its terms of reference. SALRI also notes that the result of both its consultation and research supports an intermediate approach within these two polarised views as the most appropriate way forward. SALRI does not support either a system of regulated commercial surrogacy in South Australia in light of the well-documented concerns that commercial surrogacy gives rise to. Nor does SALRI support seeking to preclude or ban surrogacy in South Australia. Any such option is both inappropriate and unrealistic. SALRI notes that the complexities and national and international implications of surrogacy are such that the preferable solution to this issue is a national and uniform scheme co-ordinated between the States and Territories and the Commonwealth and the referral of State power to the Commonwealth. This option has been supported by the Chief Magistrate, Judge Eldridge of the Youth Court of South Australia and Chief Justice Pascoe of Family Court (speaking in a personal capacity). However, this is likely to prove a long-term process and in the interim it is crucial that the State regulatory framework for surrogacy is as effective as possible. 
SALRI supports a suitable regulatory framework for South Australia that maintains the (admittedly often tenuous) distinction between commercial and noncommercial surrogacy and clarifies and improves the current system to most appropriately allow and facilitate lawful domestic surrogacy within Australia for South Australians but discourages and deters recourse to unlawful surrogacy, especially offshore commercial surrogacy. It is unrealistic, in light of the diversity of modern families and the dramatic advances in reproductive technology, to expect that the law can cover every conceivable surrogacy situation that might arise. Nevertheless, SALRI considers that the framework which it has recommended is the most effective and appropriate to recognise and respect the interests of all parties, but crucially to protect the best interests of a child born as a result of surrogacy. This must always be the primary or paramount factor of any scheme.
 SALRI’s findings include:
1. The value of a uniform national framework for surrogacy and the potential future referral as part of such a scheme of the State’s role with respect to surrogacy to the Commonwealth. 
2. The Family Court is the preferable court to deal with surrogacy (both domestic and international) given its specialised role, expertise and processes. 
3. The need for South Australia to have the most appropriate framework possible for a noncommercial system of surrogacy, whilst working towards national consistency (given that any national surrogacy framework will be a long-term process). 
4. The benefit, for clarity and accessibility, of a standalone Surrogacy Act. 
5. The current distinction between commercial and non-commercial surrogacy be retained and commercial surrogacy should remain prohibited in South Australia. 
6. Any surrogacy framework must recognise the human rights and interests of all parties, namely the child, surrogate mother and the intending parents, but the best interests of the child (including the child’s right to know their full history and family) is the primary or paramount factor. This should apply throughout the process at both the pre-birth and post-birth stages. 
7. Any court order to transfer the parentage of a surrogate child to the intending parents should be based on the child’s best interests. 
8. Given the complexities in this area and emerging research and international developments, there should be a statutory review of the operation of any new Surrogacy Act five years after commencement. 
9. The Surrogate Register, the State Framework and the Attorney-General’s role with respect to surrogacy set out in the 2015 Act are well-intentioned but impractical and should be removed. 
10. The existing offences against commercial surrogacy should be clarified to focus on commercial introduction or brokerage or commercial adverting but allow social online advertising and discussion so as not to impede the potential parties to a surrogacy arrangement getting in touch. 
11. A specific extraterritorial application in respect of commercial surrogacy offences as exists in New South Wales, the Australian Capital Territory and Queensland is ineffective and inappropriate and should not be adopted. 
12. The benefit of a website from the Commonwealth and/or State to provide comprehensive, reliable and impartial advice to the parties about surrogacy and its various implications. 
13. Any new Surrogacy Act should contain various general principles to apply throughout the process at both the pre-birth and post-births stages. These general principles are designed to protect the interests of all parties but, above all, protect the best interests of the child. These general principles include protecting all parties from exploitation, the need for an early focus under any regulatory framework at the outset of the process and before any fertility treatment and certainly before the child is born and the entitlement of the surrogate mother to manage and maintain her own medical autonomy and that, as far as practicable, surrogacy arrangements should be a private matter between the parties without State involvement. 
14. All parties to a lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) should have access to appropriate, high quality, specialist and independent counselling services prior to a lawful surrogacy arrangement (and the option to seek counselling during and after any arrangement). The role of this counsellor, an ‘Accredited Independent Counsellor’, includes assessing or screening the suitability of the parties (the surrogate mother, her partner and the intending parents) to enter into a lawful surrogacy arrangement and the counsellor must certify they have covered certain important areas with the party(s) as part of their role. This counsellor cannot be employed by a fertility provider. 
15. Any surrogacy framework should be governed by public health principles of best practice and linked to the NHMRC ART Guidelines. 
16. The surrogate mother and the intending parties must obtain appropriate, high quality and independent legal advice prior to entering into a lawful surrogacy arrangement and the lawyer, as part of such advice, must certify they have covered certain important areas with their client. 
17. The surrogacy agreement must be signed and in writing and the part relating to costs should be legally enforceable. 
18. Mediation is to be strongly encouraged for the parties to resolve any dispute, but it is not mandatory. 
19. The threshold criteria to proceed with a lawful surrogacy agreement are that the intending parents are ordinarily resident in South Australia, the surrogate mother and the intending parents are 25 years or over, the intending parents are effectively infertile, and the surrogate mother is an Australian citizen or permanent resident. 
20. There should be the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and with the Accredited Independent Counsellor(s), prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child. As part of this process, each party should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (though SALRI notes there may well be difficulties at this stage with such a requirement) or a national criminal history check. 
21. The present restriction on single persons accessing lawful surrogacy is unsound and should be removed. 
22. The concept of a ‘team baby’ (where there is no genetic link between the intending parents and the child) raises sensitivities (especially where the surrogate mother proposes to provide her own ovum) but the present approach in South Australia should be retained to permit such arrangements if the intending parent(s) are effectively infertile and the arrangement is approved by the Accredited Independent Counsellor. 
23. A flexible and realistic approach to jurisdiction within Australia is necessary to recognise the interstate aspects of surrogacy whilst discouraging forum shopping. Part of this is a mutual recognition scheme to comparable surrogacy processes to South Australia within Australia. 
24. The child’s right to know his or her full family and birth history is, consistent with ART and donor conception, vital and changes to law and practice are appropriate so that a child is entitled to access such information at age 16 and that a neutral indication on the birth certificate will alert the holder that there is private material behind the public record to which they are entitled. 
25. In relation to the allowable costs of a surrogate mother, greater clarity and content to the present law is necessary. The guiding principles should be that no valuable consideration should be provided for the act of becoming (or trying to become) pregnant and carrying a child for another person, a surrogate mother should not be financially disadvantaged as a result of taking part in a surrogacy arrangement and should be able to recover any costs actually incurred as a direct result. 
26. The surrogate mother should remain the legal parent of the child unless, and until, legal parentage is transferred by an order from a court of competent jurisdiction to the intending parents. 
27. Two incidental aspects in relation to paternity should be referred to the Commonwealth or recognised at a State level to diminish needless complexity and duplication. 
28. It is inappropriate for reasons of both policy and practice for a State to seek to resolve the ‘gap’ to recognise parentage from international surrogacy arising from Full Court of the Family  Court of Australia’s decision in Bernieres v Dhopal (2017) 324 FLR 21. This is an issue to be resolved at a national level. 29. SALRI proposes to complete a short spin off report into various consequential civil law issues and implications raised in a surrogacy context. Such a Report need not delay any new Surrogacy Act as any recommendations will relate to other Acts. ...
The specific recommendations are -
PART 3 - TERMINOLOGY 
Recommendation 1 SALRI recommends that any legislative reform to accompany a new surrogacy framework should use the opportunity to move towards national consistency and, as part of this process, that problematic terms such as ‘commissioning parent’ (to be replaced with ‘intending parent’) and, as far as practicable, the term ‘altruistic’, should be replaced or avoided. 
PART 4 – STATE VS NATIONAL 
Recommendation 2 SALRI recommends that, in light of the likely delay of uniform (or at least consistent) national laws being developed, South Australia should, as far as practicable, revise its laws in relation to surrogacy until national laws are formulated, to ensure the State’s laws are as effective as possible. 
Recommendation 3 SALRI recommends that South Australia, along with other States and Territories, resume efforts towards a national consensus on this issue and to formulate a national uniform scheme as a matter of the highest priority. 
Recommendation 4 SALRI recommends that, where necessary to give effect to Recommendation 3 above, South Australia should refer the jurisdiction of its powers in respect of surrogacy to the Commonwealth and allow the Family Court to exercise jurisdiction in respect of all aspects of surrogacy at its earliest opportunity. 
PART 5 – THE NEED FOR A STANDALONE SURROGACY ACT 
Recommendation 5 SALRI recommends that, for ease of reference and application and accessibility, the current scheme for surrogacy contained in Part 2B of the Family Relationships Act 1975 (SA) be excised and replaced with a standalone Surrogacy Act for South Australia. 
Recommendation 6 SALRI recommends that any new Surrogacy Act should draw on Part 2B of the Family Relationships Act 1975 (SA) and the Family Relationships (Surrogacy) Amendment Bill 2017, notably as to the provisions set out in Part 5 of this Report. To this end, SALRI suggests that any new Surrogacy Act should be subject to the further recommendations set out below, namely recommendations 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 39, 40, 41, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 56, 57, 59, 60, 61, 62, 63, 64, 65, 66 and 69. 
PART 6 – COMMERCIAL SURROGACY AND ITS IMPLICATIONS 
Recommendation 7 SALRI recommends that the practice of commercial surrogacy should remain illegal in South Australia, but that domestic, non-commercial surrogacy agreements should be permissible in certain specified circumstances. 
PART 7 – HUMAN RIGHTS IMPLICATIONS 
Recommendation 8 SALRI recommends that, under any Surrogacy Act and surrogacy framework, the interests and human rights of all parties, namely the child born as a result of surrogacy, the surrogate mother and her partner and the intending parents must be recognised and respected, but confirms that the primary or paramount consideration, both before and after birth, should be the best interests of the child. 
Recommendation 9 SALRI recommends that any Surrogacy Act should provide that the court must be satisfied that the making of any parentage order in respect of a child born as a result of surrogacy is in the best interests of the child and this should be a necessary precondition to the making of a parentage order. 
Recommendation 10 SALRI recommends that there is a review of the operation and effectiveness of any new Surrogacy Act five years after its commencement, given the complexities and rapid advances in the area of surrogacy (both research wise and internationally). 
PART 9 – SPECIFIC LAW REFORM ISSUES 
Recommendation 11 SALRI recommends that any new Surrogacy Act should contain the following statutory guiding principles to apply in any decision in relation to surrogacy, at both a pre-birth and post-birth stage: 1. That the best interests of the child are paramount and should be protected (including the child’s safety and well-being and the child’s right to know about their family and origins). 2. That the surrogate mother is able to make a free and informed decision about whether to act as a surrogate. 3. That sufficient regulatory protections are in place to protect the surrogate mother and the intending parents from exploitation. 4. That there is legal clarity about the parent-child relationships that result from the arrangement. 5. The intervention of the law and the State in people’s private lives, with regards to surrogacy, should be kept to a minimum. 6. Any model should ensure that, at the outset, all parties are fully aware of their rights and responsibilities (particularly in relation to the child) and such a model should seek to avoid and resolve any legal dispute (if arising) between the parties. 8 7. That the surrogate mother has the same rights to manage her pregnancy and birth as any other pregnant woman. 
PART 10 – HOW ACTIVE SHOULD THE STATE BE? 
Recommendation 12 SALRI recommends that the current role of the State Attorney-General introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy (including both the Framework and to approve individual surrogacy agreements (including international surrogacy agreements)) is inappropriate and should be removed. 
Recommendation 13 SALRI recommends that the Framework introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) with respect to surrogacy be removed. 
Recommendation 14 SALRI recommends that the State Register of potential surrogate mothers introduced by the Family Relationships (Surrogacy) Amendment Act 2015 (SA) be removed. 
PART 11 – CONNECTING SURROGATES AND INTENDING PARENTS 
Recommendation 15 SALRI recommends that the present law should be clarified to provide that any offence covering the act of commercial surrogacy itself should include offering, encouraging, inducing or assisting such an act. This would capture commercial introduction and brokerage and commercial advertising, but not frustrate communication and negotiation between the parties in a non-commercial aspect, which is essential. 
Recommendation 16 SALRI recommends that the Surrogacy Act (or relevant Act) should include an offence that ‘a person must not publish any advertisement, statement, notice or other material that seeks to introduce people for a reward or other inducement with the intention that those people might enter into a surrogacy arrangement (whether non-commercial or commercial)’. 
PART 12 – EXTRATERRITORIAL OFFENCE 
Recommendation 17 SALRI recommends that, in light of their ineffectual nature, the extraterritorial offences relating to commercial surrogacy as exist in the Australian Capital Territory, New South Wales and Queensland should not be introduced in South Australia. 
PART 13 – AVAILABILITY OF SURROGACY-RELATED RESOURCES AND INFORMATION 
Recommendation 18 SALRI recommends that a website should be developed which provides advice and information for Australians considering domestic surrogacy and should include: 1. Clear advice on the role of Commonwealth Government support and service provision for intending parents, surrogates and children including Medicare, social security and welfare payments, child support and paid parental leave; 2. Clear advice on the surrogacy legislation in each Australian State and Territory; 3. Clear advice on the support and services funded and provided for by each Australian State and Territory including relevant health, counselling and legal services available; and 4. Best practice guidelines and other information for health care providers including hospitals, obstetricians, paediatric care, employers and others dealing with surrogates. In this context, SALRI encourages the Commonwealth to implement Recommendation 6 of the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (2016) for the Commonwealth Government to develop such a website. 
Recommendation 19 In the event that the Commonwealth does not set up such a website, in the alternative, or in addition to Recommendation 18 above, SALRI recommends that an appropriate agency or agencies in South Australia such as SA Health or the Legal Services Commission prepares a suitable page on their own site to provide reliable and impartial information. 
PART 14 – THRESHOLD ISSUES 
Recommendation 20 SALRI recommends that any Surrogacy Act should confirm that a surrogacy arrangement should not proceed or be undertaken in South Australia unless, and until, the parties have in place a legal agreement that satisfies the relevant legislative requirements such as legal and counselling advice. 
Recommendation 21 SALRI recommends that the current concept of infertility to access lawful surrogacy in South Australia should be retained but that, to clarify and update the relevant terminology, the present definition of infertility in s 10HA(2a)(e) of the Family Relationships Act 1975 (SA) should be removed and replaced in the new Surrogacy Act or other relevant Act with the following definition of medical or social need to access lawful surrogacy based on s 30(2) the Surrogacy Act 2010 (NSW): ‘(2) There is a medical or social need for a surrogacy arrangement if: (a) there is only one intended parent under the surrogacy arrangement and the intended parent is a man or an eligible woman, or (b) there are 2 intended parents under the surrogacy arrangement and the intended parents are: (i) a man and an eligible woman, or 10 (ii) 2 men, or (iii) 2 eligible women. (3) An eligible woman is a woman who: (a) is unable to conceive a child on medical grounds, or (b) is likely to be unable, on medical grounds, to carry a pregnancy or to give birth, or (c) is unlikely to survive a pregnancy or birth, or is likely to have her health significantly affected by a pregnancy or birth, or (d) if she were to conceive a child: (i) is likely to conceive a child affected by a genetic condition or disorder, the cause of which is attributable to the woman, or (ii) is likely to conceive a child who is unlikely to survive the pregnancy or birth, or whose health would be significantly affected by the pregnancy or birth.’ 
Recommendation 22 SALRI recommends that all references to ‘husband’ and their accompanying definitions in Part 2B of the Family Relationships Act 1975 (SA) should be removed and replaced in any new Surrogacy Act with ‘spouse’ to be more inclusive of surrogate mothers and intending parents in same-sex relationships. 
Recommendation 23 SALRI recommends that any Surrogacy Act should provide that a surrogate mother must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a woman under the age of 25 years acting as a surrogate mother. 
Recommendation 24 SALRI recommends that any Surrogacy Act should provide that the intending parents must be at least 25 years of age in order to be a party to a lawful surrogacy agreement in South Australia, unless the Accredited Independent Counsellor, as part of the counselling (and screening) process, is satisfied that there are exceptional circumstances to support a person under the age of 25 years acting as an intending parent. 
Recommendation 25 SALRI recommends that there should be no legislative requirement for a surrogate mother to have previously carried a pregnancy and given birth to a live child in order to access a lawful surrogacy agreement in South Australia, on the basis that this consideration should be addressed as part of the counselling (and screening) process. 
PART 15 – SINGLES ACCESS TO SURROGACY 
Recommendation 26 SALRI recommends that the current prohibition in South Australia on single people accessing surrogacy is discriminatory and inappropriate and should be repealed. 
PART 16 – TEAM BABY 
Recommendation 27 SALRI recommends that any Surrogacy Act should clarify the present law regarding surrogacy arrangements involving a child with no genetic link to either of the intending parents, namely that the intending parents can enter into a lawful surrogacy agreement in South Australia but only if a medical practitioner is satisfied that both of the intending parents appear to be infertile or there is medical reason why it would be preferable not to use such human reproductive material to achieve the pregnancy. However, this aspect of the law should be reviewed in five years (or five years after commencement for any new Surrogacy Act) as further research is available about the development and implications of donor-conceived individuals in adolescence and adulthood. 
PART 17 - JURISDICTION 
Recommendation 28 SALRI recommends that South Australian law should recognise surrogacy related processes that occur in analogous and comparable Australian jurisdictions which contain key features and safeguards of the South Australian legislative regime. 
Recommendation 29 SALRI recommends that any Surrogacy Act should provide that, for a lawful surrogacy arrangement in South Australia to be legally recognised, the intending parent(s) must ordinarily reside in South Australia prior to the agreement being entered into. SALRI recommends that where the surrogate mother resides and where the fertility treatment occurs should be irrelevant to any such agreement. 
Recommendation 30 SALRI recommends that any Surrogacy Act should provide that the surrogate mother and an intending parent/s must be either an Australian citizen or an Australian permanent resident to be eligible to access a lawful surrogacy agreement in South Australia. 
Recommendation 31 SALRI recommends that any Surrogacy Act (or other relevant Act) should allow the mutual recognition of interstate surrogacy orders. 
PART 18 – RISK ASSESSMENT 
Recommendation 32 SALRI recommends that any Surrogacy Act should require the full and frank exchange of information between the parties to a lawful surrogacy agreement (that is the surrogate mother, her partner (if any) and the intending parents) and the Accredited Independent Counsellor(s), prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child. Included in the information exchanged should be any information that will enable the other parties to the lawful surrogacy agreement, and the Accredited Independent Counsellor(s), to consider whether or not a party might pose a risk to the child or another party. As part of this process, each party should (if possible) obtain and provide to the other parties and the Accredited Independent Counsellor(s) either a Working with Children Check (though SALRI notes there may well be difficulties at this stage with such a requirement) or a National Criminal History Check. Any check must be obtained prior to accessing any surrogacy related fertility procedure AND prior to entering into a surrogacy agreement. The parties should be advised of this requirement as part of their independent legal advice obtained in the process of receiving their lawyer’s certificate. 
PART 19 – HEALTH BEST PRACTICE 
Recommendation 33 The regulatory framework governing surrogacy arrangements in South Australia should be consistent with a public health approach and with the public health principles set out in sections 5 to 16 of the Public Health Act 2011 (SA). 
Recommendation 34 SALRI recommends that information about Chapter 8 of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research should be accessible to all potential parties to surrogacy agreements and be provided as a matter of course to all clients of registered fertility clinics considering surrogacy as an option. 
Recommendation 35 SALRI recommends that the relevant Chapters of the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research should be subject to public consultation and review on a regular basis, in addition to the existing processes for expert review by the NHMRC and its relevant committees. 
Recommendation 36 SALRI recommends that practical information and guidance (for example in the form of Fact Sheets or Guidelines) should be developed by SA Health in consultation with surrogate mothers, intending parents, relevant South Australian hospitals, maternal health service providers, fertility providers, counsellors and obstetricians on how to provide high quality and sensitive care to surrogate mothers and intending parents in the context of a lawful surrogacy agreement. 
Recommendation 37 SALRI recommends that fertility clinics should provide potential parties to a lawful surrogacy arrangement with information about the circumstances in which fertility treatment will be provided to either the surrogate mother or the intending parent/s prior to and during the surrogacy arrangement. This would allow parties to a lawful surrogacy arrangement to consider including, in the surrogacy arrangement, an undertaking by the intending parent/s not to continue to receive fertility treatment once a viable pregnancy has been achieved by a surrogate mother in accordance with the surrogacy arrangement. 
PART 20 – COUNSELLING 
Recommendation 38 SALRI recommends that all parties to a lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) should have access to appropriate, high quality and specialist counselling services by an Accredited Counsellor as required prior to, during and following a lawful surrogacy arrangement. 
Recommendation 39 SALRI recommends that any Surrogacy Act should provide that all parties to a South Australian lawful surrogacy arrangement (as well as the partner of the surrogate mother, if any) must obtain a counselling certificate (which includes screening as to the suitability of the parties to enter into a surrogacy agreement) by an Accredited Independent Counsellor prior to any lawful surrogacy arrangement or related fertility treatment. 
Recommendation 40 SALRI recommends that, to give effect to Recommendation 39, the Surrogacy Act (or elsewhere) should include the following legislative changes to improve the present counselling (and screening) process: 1. Retaining the current requirements in s 10HA of the Family Relationships Act 1975 (SA) for all parties to the surrogate agreement, and the surrogate mother’s partner, to obtain counselling prior to the lawful surrogacy agreement by an Accredited Independent Counsellor. 2. Amending s 10HA(3)(ab) to require each person referred to in s 10HA(2a)(g) to receive independent counselling, whether provided by the same counsellor or not. 3. Amending s 10HA(3)(b)(i) to require a counselling certificate to be issued by an Accredited Independent Counsellor which states that the person to whom it relates has received counselling about the full range of relevant matters which includes: i. The potential long-term psychosocial implications for each individual and each family involved, including the surrogate child and any other child/ren within the family unit(s) who may be affected by that birth. ii. The reason(s) why the potential surrogate mother wants to become involved in a surrogacy agreement. iii. The need for the surrogate mother’s free, voluntary and informed agreement to enter into a lawful surrogacy agreement. iv. The surrogate mother’s right to make informed decisions about their own medical care, including before and during the pregnancy and birth. v. The possibility that the surrogate mother may need medical and/or psychological assistance during any attempts to become pregnant, during the pregnancy and following the birth and that the pregnancy may affect the surrogate mother’s own health. vi. The potential significance of the gestational connection and the right of a child born as a result of surrogacy to know the details of their birth and background, and the benefits of early disclosure. 14 vii. The possibility that a child born as a result of surrogacy may learn about the circumstances of their birth from sources other than the intending parents (for example from other family members) and may independently access information about their birth. viii. The possibility that a child born as a result of surrogacy may attempt to make contact with the surrogate mother in the future. ix. The impact of the potential surrogacy agreement on the surrogate mother’s partner and other children, and on the couple’s relationship and/or the family unit. x. The impact of the potential surrogacy agreement on the intending parents’ other children, and on the couple’s relationship and/or the family unit. xi. The implications for all parties, if it is proposed that the surrogate mother will provide her own ovum for use within a surrogacy arrangement. xii. The exceptional circumstances present, which would deem it allowable for any party (the surrogate mother and/or intending parents) to participate in a surrogacy arrangement under the age of 25 years. xiii. The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the surrogate mother, her partner (if any) and/or the intending parents are suitable to take part in a lawful surrogacy agreement. xiv. The need for the Accredited Independent Counsellor conducting the counselling and screening to confirm that the proposed surrogacy agreement will be in the best interests of any child already existing and any child born as a result of the surrogacy agreement. Recommendation 41 SALRI recommends that any Surrogacy Act (or accompanying Regulations) provide that full membership of, or eligibility for full membership of, the Australian and New Zealand Independent Counsellors Association, is a necessary prerequisite to act in South Australia as an Accredited Independent Counsellor and carry out the counselling (and screening) role in relation to a lawful surrogacy agreement. 
Recommendation 42 SALRI recommends that registered fertility clinics should adopt internal processes to ensure that an individual providing the counselling (and screening) to each person referred to in Recommendations 39 and 40 (see also s 10HA(2a)(g) of the Family Relationships Act 1975 (SA)) is in a position to provide independent counselling (and screening) to each client (though also note Recommendation 43 below). 
Recommendation 43 SALRI recommends that any Surrogacy Act should make it clear that an Accredited Independent Counsellor responsible for the issue of a counselling certificate (including determining the suitability of a party or parties to enter into a lawful surrogacy agreement) cannot be employed by a fertility clinic or be a ‘contractor’ (in the sense of receiving a commission, bonus or any form of valuable consideration from the clinic as a result of the surrogacy arrangement). 
Recommendation 44 SALRI recommends that it should not be mandatory for the parties to undergo counselling during the surrogate mother’s pregnancy. Rather, SALRI recommends that any Surrogacy Act should require that a lawful surrogacy agreement states that the intending parents will take reasonable steps to ensure that the surrogate mother and her partner (if any) are offered 15 counselling (at no cost to the surrogate mother or her partner) during any attempts to become pregnant (even if a pregnancy is not achieved) and during any pregnancy to which the agreement relates. 
Recommendation 45 SALRI recommends that any Surrogacy Act should provide that it is mandatory for the surrogate mother to undergo one session of counselling with an Accredited Counsellor of the surrogate mother’s choice after the birth of a child (with any cost to be met by the intending parents). The counsellor (who need not be an Accredited Independent Counsellor) as part of this session should prepare a short post birth report to guide the court as to whether a more detailed report may be necessary to assist the court in determining if any order is in the best interests of the child. Any Surrogacy Act should include an express power for the court to order a more detailed report from an Accredited Counsellor or suitable other expert of the court’s choice if the court considers it appropriate and/or in the best interests of the child. 
PART 21 – LAWYERS ADVICE AND CERTIFICATE 
Recommendation 46 SALRI recommends that any Surrogacy Act provide that both the surrogate mother and the intending parent(s) must have a certificate from an Australian lawyer certifying that they have received appropriate independent legal advice on the surrogacy agreement and its various implications. 
Recommendation 47 SALRI recommends that more detail and clarity should be added by any Surrogacy Act to the type of legal advice that has to be provided to the parties. In this regard, SALRI recommends that the form of a surrogacy agreement should meet certain legal requirements in order to be valid, and should include (at a minimum) the following criteria: (a) the agreement is signed by all parties; and (b) before signing the agreement, each party is to be provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (d) a copy of the statement referred to in paragraph (c) be provided to the other party or to a legal practitioner for the other party; and (e) the agreement is a contract of which the proper law of the contract is South Australian law; and (e) the agreement has not been terminated and has not been set aside by a court. 
Recommendation 48 For the purposes of Recommendation 47 above, SALRI recommends that the present law be extended in any Surrogacy Act to provide that the content of the legal advice provided to the parties should include information dealing with the rights and responsibilities for the child, particularly regarding the authority to make decisions relating to health care (both pre and post birth), and upon the making of an order as to parentage by a court of competent jurisdiction, the effects of the agreement on matters of succession and estate planning and the categories of costs recoverable (see Recommendations 51–54 below). 
Recommendation 49 SALRI recommends that the Youth Court (or any other relevant court) should be provided with the counsellor’s certificates, any initial counselling reports in respect of the parties, the Working with Children Checks (or the national criminal history checks) and the lawyers’ certificates in respect of their advice to the parties. This material should be lodged with the Youth Court or any other relevant court prior to any order being made transferring the legal parentage of the child. 
PART 22 - MEDIATION 
Recommendation 50 SALRI, noting the value of mediation in a surrogacy context, recommends that: (a) the parties have the right, although not compulsory, to access mediation services through an experienced family law mediator to assist in negotiating the surrogacy agreement between them and this should not constitute an offence by the mediator or facilitating service under the relevant provision (see Recommendations 15 and 16 above); (b) in the event of a dispute about the terms of the surrogacy agreement during the life of the agreement, the parties can attend mediation to attempt to resolve the dispute and, if this fails, either party can request the mediator to act as arbitrator in order to resolve the dispute, following which, any decision of an arbitrator is binding on the parties. Note: The aim of mediation should be to try to prevent any disputes arising. The use of mediation and/or arbitration is strictly voluntary, and the parties retain the right, in the alternative, to make an application to a court of competent jurisdiction, however, the aim should be to keep the costs of litigation as low as possible. 
PART 23 – RECOVERABLE COSTS 
Recommendation 51 SALRI recommends that any Surrogacy Act should provide that the part of the surrogacy agreement relating to costs and expenses should be legally enforceable. 
Recommendation 52 SALRI recommends that, in relation to costs, the guiding principles should be set out in any Surrogacy Act and should be that: (i) No valuable consideration should be provided for the act of becoming pregnant and carrying a child for another person; and (ii) A surrogate mother should not be financially disadvantaged as a result of taking part in a surrogacy arrangement and should be able to recover any costs actually incurred as a direct result of the pregnancy and birth. 
Recommendation 53 SALRI recommends that any Surrogacy Act should provide that all costs ‘directly related’ to the lawful surrogacy agreement (including the process of getting pregnant, the pregnancy and birth of the child) should be recoverable by the surrogate mother under a lawful surrogacy arrangement. The scope of these costs should be set out in the parties’ individual surrogacy agreements. However, such costs should be permitted to include: (a) Medical costs related to a pregnancy (including any attempt to become pregnant) that is the subject of the agreement. (b) The birth or care of a child born as a result of that pregnancy. (c) Counselling provided in connection with the agreement (including after the birth of a child). (d) Medical services provided in connection with the agreement (medical services provided prior to achieving a pregnancy, and medical care provided during the pregnancy and after the birth of a child). (e) Legal services provided in connection with the agreement (including after the birth of a child). (f) Any premium paid for health, disability or life insurance which would otherwise not have been taken out, but for the agreement; (g) Loss of income of the surrogate mother as a result of leave during the pregnancy or immediately after the pregnancy when the surrogate mother was unable to work on medical grounds. Recoverable loss of income should be limited to a period of two months. Loss of income should be recoverable regardless of the surrogate mother’s access to alternative sources of paid leave during the same period (such as paid parental leave), provided the leave was required on medical grounds. (h) Travel and accommodation costs of the surrogate mother (and her dependents) related to the pregnancy (including any attempt to become pregnant). (i) Reasonable out of pocket expenses (including childcare related expenses and loss of domestic services expenses) incurred by the surrogate mother in respect of the agreement. (j) Any other costs directly related to the surrogacy agreement as prescribed by the Regulations. 
Recommendation 54 SALRI recommends that the present law relating to recoverable costs should be amended in any Surrogacy Act to provide that: (a) The scope of recoverable costs should be set out in the parties’ individual surrogacy agreement, but must include all relevant medical costs and the provision of independent legal advice and counselling to the surrogate mother and her partner prior to, during and after the term of the surrogacy agreement; (b) Costs recoverable are those that have been actually incurred by the surrogate mother; and (c) The provisions in the lawful surrogacy agreement relating to costs are legally enforceable between the parties (for example through the small claims process). 
Recommendation 55 SALRI recommends that information setting out the typical range of costs recoverable under a lawful surrogacy agreement be made publicly available, for example in the form of a Table or Schedule of Surrogacy Costs, or as a questionnaire, to prompt potential parties to surrogacy agreements to turn their mind to the full range of potential costs recoverable under a lawful surrogacy agreement in South Australia pursuant to Recommendations 52–54 above. Such information could be prepared with the assistance of legal experts and published by a relevant Government department or other body that currently disseminates general legal information on family law matters such as the Legal Services Commission or Relationships Australia. 
Recommendation 56 SALRI recommends that any Surrogacy Act should include an express incidental power to enable the relevant court to determine any outstanding issue such as an unresolved dispute about costs under a surrogacy agreement when it considers transferring the legal parentage to the intending parents. Section 24 of the Surrogacy Act 2012 (Tas) is an example of such a provision in this context. 
PART 24 – BIRTH CERTIFICATES 
Recommendation 57 SALRI recommends that the process in South Australia for obtaining a birth certificate with respect to a child born as a result of a lawful surrogacy agreement includes mandatory requirements at the stage of notification of birth, registration of birth and issue of birth certificate for the collection of information about the child’s intending parents and any donors of human reproductive material. The collection of such information should not affect the legal parentage of the child, which should remain with the surrogate mother (and her partner/spouse as is the current position under the Family Relationships Act 1975 (SA)), unless, and until, an order for transfer of legal parentage is made by the Youth Court. 
Recommendation 58 SALRI recommends that the current process for re-issuing a birth certificate upon a declaration of legal parentage by the Youth Court remain and that the Register of Births retains the name of the surrogate mother in its historical records. 19 
Recommendation 59 SALRI recommends that a birth certificate for a child born as a result of a surrogacy arrangement should, upon any transfer of legal parentage, include a brief notation such as an asterix or the term ‘reissue’ to indicate that there are relevant historical records which can be sought. The note of the existence of the historical record should appear on the face of the birth certificate but it should not provide specific detail of the type of record held. The details as to the surrogate mother and/or any donors of genetic material should not appear on the face of the birth certificate given the privacy of such material and other legitimate concerns. 
Recommendation 60 SALRI recommends that a child born as a result of a surrogacy arrangement should be formally entitled, under the relevant Act, to obtain a certificate (or similar documentary record) certifying all relevant entries in the Register of Births, including details of the surrogate mother and/or any donors of genetic material, once the child attains the age of 16 years. In addition, provision should be made in the Registrar’s Access Policy to allow the Registrar to exercise his or her discretion to grant a child born as a result of a surrogacy arrangement access to a certificate certifying all relevant entries in the Register of Births regardless of the child's age, provided that the Registrar is satisfied that such access would not be harmful to the welfare of the child. The Registrar may request that a counselling certificate or similar documentation be provided to assist in their assessment.     
PART 25 – PARENTAGE ORDERS AND THE FAMILY COURT 
Recommendation 61 SALRI recommends that, consistent with existing law and practice, legal parentage should remain with the surrogate mother until a court of appropriate jurisdiction makes a parentage order to the contrary. 
Recommendation 62 SALRI recommends that any Surrogacy Act provide that a court should have the discretion to be able to extend the period in which an application to transfer legal parentage can be made. When exercising a discretion to extend, the court should consider all relevant circumstances as to the reason for the delay in making the application and determine whether an extension of time is in the best interests of the child. 
Recommendation 63 SALRI recommends that any Surrogacy Act provide that a court should have a discretionary power to make a parentage order notwithstanding that one or more of the conditions otherwise applicable for the making of such an order is not satisfied. When exercising this discretion, the court should consider all relevant circumstances, including the nature and extent of the non-compliance with such conditions, the circumstances of non-compliance including whether the non-compliance was deliberate or inadvertent, and the best interests of the child. 
Recommendation 64 SALRI recommends that South Australia should refer a power (consistent with the referrals from New South Wales, Queensland, Tasmania and Victoria) which provides that the Family Court may make a determination of parentage ‘whether or not the determination of the child’s parentage is incidental to the determination of any other matter within the legislative powers of the Commonwealth’ and upon receiving the referral of power from South Australia, the Commonwealth Government should amend s 69VA of the Family Law Act 1975 (Cth) to reflect these referrals. 
Recommendation 65 SALRI recommends that South Australia introduce a conclusive statutory presumption of parentage on the basis of a finding of parentage made by another State, Territory or Commonwealth court, as is the situation in the Australian Capital Territory, New South Wales and Queensland. 
Recommendation 66 SALRI recommends that an interstate order relating to parentage of a child of a surrogacy arrangement be able to be given effect as if it was made in South Australia, in addition to recognising Commonwealth orders as to parentage. 
PART 26 – INTERNATIONAL COMMERCIAL SURROGACY: THE BERNIERES GAP 
Recommendation 67 SALRI recommends that it is an issue at the national level (whether for the Commonwealth or the Commonwealth, States and Territories jointly) to resolve the effect and implications of Bernieres in relation to both international commercial and non-commercial surrogacy arrangements. 
27 – INCIDENTAL ISSUES 
Recommendation 68 SALRI recommends that it examine the various consequential civil law issues and implications such as succession law and medical care raised in a domestic surrogacy context as part of a short spin off Report. 
Recommendation 69 SALRI recommends that the opportunity of formulating a new Surrogacy Act should be utilised to include a number of worthwhile provisions (drawing on interstate models such as the Surrogacy Act 2010 (NSW) or the Surrogacy Act 2012 (Tas)) lacking in the present law in South Australia (or not within the Family Relationships (Surrogacy) Amendment Bill 2017).

Hohfeld

'Hohfeld vs The Legal Realists' by David Frydrych in (2018) 24(4) Legal Theory 291-344 comments
2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights either, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, among other things, ‘extra-legal’ factors as the real drivers of judicial decision-making, nor must his schema of jural relations advance a ‘Realist’ political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows. €

Facebeast and wellbeing

Irrespective of Facebook's disrespect for your privacy, withdrawing your attention might make you a little happier. 'The Welfare Effects of Social Media' by Hunt Allcott, Luca Braghieri, Sarah Eichmeyer, and Matthew Gentzkow argues
The rise of social media has provoked both optimism about potential societal benefits and concern about harms such as addiction, depression, and political polarization. We present a randomized evaluation of the welfare effects of Facebook, focusing on US users in the runup to the 2018 midterm election. We measured the willingness-to-accept of 2,844 Facebook users to deactivate their Facebook accounts for four weeks, then randomly assigned a subset to actually do so in a way that we verified. Using a suite of outcomes from both surveys and direct measurement, we show that Facebook deactivation (i) reduced online activity, including other social media, while increasing offline activities such as watching TV alone and socializing with family and friends; (ii) reduced both factual news knowledge and political polarization; (iii) increased subjective well-being; and (iv) caused a large persistent reduction in Facebook use after the experiment. We use participants’ pre-experiment and post-experiment Facebook valuations to quantify the extent to which factors such as projection bias might cause people to overvalue Facebook, finding that the magnitude of any such biases is likely minor relative to the large consumer surplus that Facebook generates.
The authors state
 Social media have had profound impacts on the modern world. Facebook, which remains by far the largest social media company, has 2.3 billion monthly active users worldwide (Facebook 2018). As of 2016, the average user was spending 50 minutes per day on Facebook and its sister platforms Instagram and Messenger (Facebook 2016). There may be no technology since television that has so dramatically reshaped the way people communicate, get information, and spend their time. Speculation about social media’s welfare impact has followed a familiar trajectory, with early optimism about potential benefits giving way to widespread concern about possible harms. At a basic level, social media dramatically reduce the cost of connecting, communicating, and sharing information with others. Given that interpersonal connections are among the most important drivers of happiness and well-being (Myers 2000; Reis, Collins, and Berscheid 2000; Argyle 2001; Chopik 2017), this could be expected to bring widespread improvements to individual welfare. Many have also pointed to wider social benefits, from facilitating protest and resistance in autocratic countries, to encouraging activism and political participation in established democracies (Howard et al. 2011; Kirkpatrick 2011). 
More recent discussion has focused on an array of possible negative impacts. At the individual level, many have pointed to negative correlations between intensive social media use and both subjective well-being and mental health.1 Adverse outcomes such as suicide and depression appear to have risen sharply over the same period that the use of smartphones and social media has expanded.2 Alter (2018) and Newport (2019), along with other academics and prominent Silicon Valley executives in the “time well-spent” movement, argue that digital media devices and social media apps are harmful and addictive. At the broader social level, concern has focused particularly on a range of negative political externalities. Social media may create ideological “echo chambers” among like-minded friend groups, thereby increasing political polarization (Sunstein 2001, 2017; Settle 2018). Furthermore, social media are the primary channel through which fake news and other types of misinformation are spread online (Allcott and Gentzkow 2017), and there is concern that coordinated disinformation campaigns can affect elections in the US and abroad.
In this paper, we report on a large-scale randomized evaluation of the welfare impacts of Facebook, focusing on US users in the run-up to the November 2018 midterm elections. We recruited a sample of 2,844 users through Facebook display ads, and elicited their willingness-to-accept (WTA) to deactivate their Facebook accounts for a period of four weeks ending just after the election. We then randomly assigned the 58 percent of these subjects with WTA less than $102 to either a Treatment group that was paid to deactivate, or a Control group that was not. We verified compliance with deactivation by regularly checking participants’ public profile pages. We measured a suite of outcomes using text messages, surveys, emails, direct measurement of activity on Facebook and Twitter, and administrative records on voting and electoral contributions. Less than two percent of the sample failed to complete the endline survey, and the Treatment group’s compliance with deactivation exceeded 90 percent.
Our study offers the largest-scale experimental evidence available to date on the way Facebook affects a range of individual and social welfare measures. We evaluate the extent to which time on Facebook substitutes for alternative online and offline activities, with particular attention to crowd out of news consumption and face-to-face social interactions. We study Facebook’s broader political externalities via measures of news knowledge, awareness of misinformation, political engagement, and political polarization. We study the impact on individual utility via measures of subjective wellbeing, captured through both surveys and text messages. Finally, we analyze the extent to which behavioral forces like addiction and misprediction may cause sub-optimal consumption choices, by looking at how usage and valuation of Facebook change after the experiment.
Our first set of results focuses on substitution patterns. A key mechanism for effects on individual well-being would be if social media use crowds out face-to-face social interactions and thus deepens loneliness and depression (Twenge 2017). A key mechanism for political externalities would be if social media crowds out consumption of higher-quality news and information sources. We find evidence consistent with the first of these but not the second. Deactivating Facebook freed up 60 minutes per day for the average person in our Treatment group. The Treatment group actually spent less time on both non-Facebook social media and other online activities, while devoting more time to a range of offline activities such as watching television alone and spending time with friends and family. The Treatment group did not change its consumption of any other online or offline news sources and reported spending 15 percent less time consuming news.
Our second set of results focuses on political externalities, proxied by news knowledge, political engagement, and political polarization. Consistent with the reported reduction in news consumption, we find that Facebook deactivation significantly reduced news knowledge and attention to politics. The Treatment group was less likely to say they follow news about politics or the President, and less able to correctly answer factual questions about recent news events. Our overall index of news knowledge fell by 0.19 standard deviations. There is no detectable effect on political engagement, as measured by voter turnout in the midterm election and the likelihood of clicking on email links to support political causes. Deactivation significantly reduced polarization of views on policy issues and a measure of exposure to polarizing news. Deactivation did not statistically significantly reduce affective polarization (i.e. negative feelings about the other political party) or polarization in factual beliefs about current events, although the coefficient estimates also point in that direction. Our overall index of political polarization fell by 0.16 standard deviations. As a point of comparison, prior work has found that a different index of political polarization rose by 0.38 standard deviations between 1996 and 2018 (Boxell 2018).
Our third set of results looks at subjective well-being. Deactivation caused small but significant improvements in well-being, and in particular on self-reported happiness, life satisfaction, depression, and anxiety. Effects on subjective well-being as measured by responses to brief daily text messages are positive but not significant. Our overall index of subjective well-being improved by 0.09 standard deviations. As a point of comparison, this is about 25-40 percent of the effect of psychological interventions including self-help therapy, group training, and individual therapy, as reported in a meta-analysis by Bolier et al. (2013). These results are consistent with prior studies suggesting that Facebook may have adverse effects on mental health. However, we also show that the magnitudes of our causal effects are far smaller than those we would have estimated using the correlational approach of much prior literature. We find little evidence to support the hypothesis suggested by prior work that Facebook might be more beneficial for “active” users—for example, users who regularly comment on pictures and posts from friends and family instead of just scrolling through their news feeds.
Our fourth set of results considers whether deactivation affected people’s demand for Facebook after the study was over, as well as their opinions about Facebook’s role in society. As the experiment ended, participants reported planning to use Facebook much less in the future. Several weeks later, the Treatment group’s reported usage of the Facebook mobile app was about 12 minutes (23 percent) lower than in Control. The Treatment group was more likely to click on a post-experiment email providing information about tools to limit social media usage, and five percent of the Treatment group still had their accounts deactivated nine weeks after the experiment ended. Our overall index of post-experiment Facebook use is 0.61 standard deviations lower in Treatment than in Control. In response to open-answer questions several weeks after the experiment ended, the Treatment group was more likely to report that they were using Facebook less, had uninstalled the Facebook app from their phones, and were using the platform more judiciously. Reduced post-experiment use aligns with our finding that deactivation improved subjective well-being, and it is also consistent with the hypotheses that Facebook is habit forming in the sense of Becker and Murphy (1988) or that people learned that they enjoy life without Facebook more than they had anticipated. Deactivation caused people to appreciate Facebook’s both positive and negative impacts on their lives. Consistent with our results on news knowledge, the Treatment group was more likely to agree that Facebook helps people to follow the news. The great majority of the Treatment group agreed that deactivation was good for them, but they were also more likely to think that people would miss Facebook if they used it less. In free response questions, the Treatment group wrote more text about how Facebook has both positive and negative impacts on their lives. The opposing effects on these specific metrics cancel out, so our overall index of opinions about Facebook is unaffected.
Our work also speaks to an adjacent set of questions around how to measure the economic gains from free online services such as search and media.
In standard models with consumers who correctly optimize their allocation of time and money, researchers can approximate the consumer surplus from these services by measuring time use or monetary valuations, as in Brynjolfsson and Oh (2012), Brynjolfsson, Eggers, and Gannamaneni (2018), Corrigan et al. (2018), and others. But if users do not understand the ways in which social media could be addictive or make them unhappy, these standard approaches could overstate consumer surplus gains. Sagioglu and Greitemeyer (2014) provide suggestive evidence: while their participants predicted that spending 20 minutes on Facebook would make them feel better, it actually caused them to feel worse.
To quantify the possibility that a period of deactivation might help the Treatment group to understand ways in which their use had made them unhappy, we elicited WTA at three separate points, using incentive-compatible Becker-DeGroot-Marschak (1964, “BDM”) mechanisms. First, on October 11th, we elicited willingness-to-accept to deactivate Facebook between October 12th and November 8th, which we loosely call “month 1.” We immediately told participants the amount that they had been offered to deactivate ($102 for the Treatment group, $0 for Control), and thus whether they were expected to deactivate over that period. We then immediately elicited WTA to deactivate Facebook for the next four weeks after November 8th, which we call “month 2.” When November 8th arrived, we then re-elicited WTA to deactivate in month 2. The Treatment group’s change in valuation for month 2 reflects a time effect plus the unanticipated effect of spending time off of Facebook. The Control group’s parallel valuation change reflects only a time effect. Thus, the difference between how Treatment vs. Control change their WTAs for deactivation in month 2 reflects projection bias, learning, and similar unanticipated experience effects, which we collectively call “misprediction.”
After weighting our sample to match the average US Facebook user on observables, the median and mean willingness-to-accept to deactivate Facebook for the initial four weeks were $100 and $180, respectively. These valuations are larger than most estimates in related work by Brynjolfsson, Eggers, and Gannamaneni (2018), Corrigan et al. (2018), Mosquera et al. (2018), and Sunstein (2019). Aggregated across an estimated 172 million US Facebook users, this could be interpreted to mean that Facebook generates several hundred billion dollars of consumer surplus per year in the US alone. Consistent with our other results that deactivation reduced demand for Facebook, deactivation caused month 2 WTA to drop by 13 percent, although this may be an upper bound on misprediction for reasons we discuss later. While such misprediction may be substantial in absolute terms, it would not reverse the conclusion that Facebook generates enormous flows of consumer surplus.
Our results should be interpreted with caution, for several reasons. First, effects could differ with the duration or scale of deactivation. A longer period without Facebook might have less impact on news knowledge as people find alternative news sources, and either more or less impact on subjective well-being. Furthermore, a larger-scale experiment in which a greater share of the population deactivated could have a different impact due to network effects and equilibrium adjustments. Second, our sample is not fully representative. Our participants are relatively young, well-educated, and left-leaning compared to the average Facebook user, and we included only people who reported using Facebook more than 15 minutes per day. In addition, although we went as far as possible to avoid telegraphing the experimental design and research questions, deactivation could have different effects on the average Facebook user than on the type of person who was willing to participate in our experiment. Third, many of our outcome variables are self-reported, adding scope for both measurement error and experimenter demand effects. This latter concern is mitigated somewhat by the fact that the non-self-reported outcomes we measure (e.g., post-experiment Facebook use) paint a similar picture to the survey responses.
The causal impacts of social media have been of great interest to researchers in economics, psychology, and other fields. We are aware of 12 existing randomized impact evaluations of Facebook.6 The most closely related is the important paper by Mosquera et al. (2018), which was made public the month before ours. They also use Facebook deactivation to study news knowledge and well being, finding results broadly consistent with those reported here. Appendix Table A1 details these experiments in comparison to ours. Our deactivation period is substantially longer and our sample size an order of magnitude larger than most prior work, including Mosquera et al. (2018). We measure impacts on a relatively comprehensive range of outcomes, and we are the only one of these randomized trials to have submitted a pre-analysis plan. Given the effect sizes and residual variance in our sample, we would have been unlikely to have sufficient power to detect any effects if limited to the sample sizes in previous experiments.
Sections 2 and 3 detail the experimental design and empirical strategy. Section 4 presents the impact evaluation, and Section 5 presents measurements of the consumer surplus generated by Facebook.

01 February 2019

UK Obscenity Framework

The UK Crown Prosecution Service (CPS) has released updated guidelines following last year's public consultation on Obscene Publications Prosecution Guidance. The guidelines identify potential offences for prosecutors to consider when dealing with “obscene publications”, before focusing on the Obscene Publications Act 1959, offering guidance on the provisions in general and in particular how prosecutors should approach the question of “obscenity”.

The changes give significantly greater recognition of consent and offer a contemporary framework regarding BDSM.

The CPS states that it conducted a public consultation on a proposed revision of its Legal Guidance on Obscene Publications. The purpose of the consultation was to provide interested persons with an opportunity to provide comments and to ensure the final version of the policies were informed by as wide a range of views as possible.
 The Obscene Publications Act makes it a crime to publish material which might ‘deprave or corrupt’ those who are likely to see, read, or hear it. ‘Publishing’ can include distributing, selling, lending or giving the material in question, or offering to sell or lend it. 
Prosecutors might also consider other offences when dealing with “obscene publications”, for example outraging public decency, possession of an extreme pornographic image, disclosing private sexual images without consent, and offences against the Malicious Communications Act 1988 and Electronic Communications Act 2003
The consultation was published on the CPS website and asked five questions:
Question 1 Do consultees agree or disagree with the guidance that the showing or realistic depiction of sexual activity/pornography which constitutes acts or conduct contrary to the criminal law is (subject to the statutory defences) likely to be obscene? 
Question 2 Do consultees agree or disagree with the guidance that prosecutors must exercise real caution when dealing with the moral nature of acts not criminalised by law, and that the showing or realistic depiction of sexual activity/pornography which does not constitute acts or conduct contrary to the criminal law is unlikely to be obscene? 
Question 3 Do consultees agree or disagree with the guidance that prosecutors, when assessing obscenity, should consider: Whether the activity is consensual; b. Whether or not serious harm is caused; c. Whether or not it is inextricably linked with other criminality; and d. Whether the likely audience is not under 18 or otherwise vulnerable. 
Question 4 Do consultees agree or disagree with the guidance that the showing or realistic depiction of other acts or conduct which are contrary to the criminal law is also capable of being obscene? 
Question 5 Do consultees have any further suggestions for guidance to prosecutors in assessing “obscenity” when considering allegations falling under the Obscene Publications Act 1959?
The CPS states
The guidance has been revised to provide more clarity about what an “obscene publication” might be, and places an increased focus on those who may view this material which may determine whether a criminal offence has been committed.  
The updated guidelines state
Prosecutors may consider the following offences when dealing with obscene publications before going on to consider the Obscene Publications Act 1959: 
  • Possession of an extreme pornographic image, contrary to section 63 Criminal Justice and Immigration Act 2008 
  • Taking, making, distributing or publishing indecent images or pseudo-images of children, contrary to section 1 Protection of Children Act 1978; 
  • possession of an indecent image of a child, contrary to section 160 Criminal Justice Act 1988; possession of prohibited images of children, contrary to section 62 Coroners and Justice Act 2009 
  • Disclosing private sexual images without consent, contrary to section 33 Criminal Justice and Courts Act 2015 
  • Sending an article which is indecent, grossly offensive, conveys a threat or is false to cause distress or anxiety, contrary to section 1 of the Malicious Communications Act 1988 
  • Sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or false for the purpose of causing annoyance, inconvenience or needless anxiety to another, contrary to section 127 Communications Act 2003 

  • Pursuing a course of conduct which amounts to harassment, contrary to section 2 Protection from Harassment Act 1997 
  • Outraging public decency, contrary to common law Importing obscene articles, contrary to section 42 Customs Consolidation Act 1876 Sending injurious, indecent or obscene articles etc by post, contrary to section 85 Postal Services Act 2000 
  • Encouraging or assisting an offence, contrary to 44 to 46 Serious Crime Act 2007 Children and Young Persons (Harmful Publications) Act 1955. This criminalises publishing etc. articles consisting of stories told in pictures (whether or not accompanied by text) portraying crimes, violence, cruelty or incidents of a repulsive or horrible nature having a tendency to corrupt children. The maximum penalty is four months imprisonment and/or a £1,000 fine. Attorney General’s consent is needed to prosecute 
  • Video Recordings Act 1984 and 2010. This provides for a regime of video classification and criminalises non-compliance, maximum sentences ranging from six months to two years imprisonment 
  • Indecent Displays (Control) Act 1981. A person permitting or causing display of indecent matter visible from a public place shall be guilty of an offence, punishable by up to two years imprisonment 
  • Theatres Act 1968. A person presenting a play which is obscene so as to have a tendency to corrupt or deprave shall be guilty of an offence, punishable by up to three years imprisonment. Attorney General’s consent is needed to prosecute
The possession of articles caught by the extreme pornography provisions should be prosecuted under that legislation (the maximum sentence is 3 years’ imprisonment); their distribution (or other conduct caught by “publication”) however may in principle be prosecuted using the Obscene Publications Act 1959. Note that sexual communication with a child which involves the provision of obscene material to the child is also covered by section 15A of the Sexual Offences Act 2003 (the maximum sentence is 2 years’ imprisonment). In cases where there is a choice of charges, section 6 of the Code for Crown Prosecutors should be applied. If prosecutors are considering whether, in order to reflect the seriousness and extent of the offending and to provide the court with sufficient powers, to charge using the Obscene Publications Act 1959 they should do so in addition to, not instead of, the 15A offence because of the availability of notification requirements and Sexual Harm Prevention Orders under section 15A: see schedule 3 Sexual Offences Act 2003.

Citizenship

'Citizenship for Sale: A Dilemma of Rights' (Working Paper of the Max Planck Institute for Tax Law and Public Finance No. 2019-01) by Kai A. Konrad and Ray Rees comments
Motivated by the commercialization of citizenship rights in the European Union, we study the market for citizenship in a confederation or union of countries if the countries have full sovereignty over the right to grant national citizenship, and if this national citizenship endows members with benefits and citizenship rights of the confederation. We characterize the unique equilibrium and evaluate it from a welfare point of view. We identify country size and local and federal benefits as well as differences in local and union-wide cost externalities as the key determinants. We also consider how the union as a whole can respond to the efficiency problems such a market creates.

Unhealthy Workplace

The Interim Report of the Independent Review into the Workplace Culture within ACT Public Health Services finds - no great surprise - that the culture in the Territory's public health services is not very health; in deed at times it is quite toxic.

The Interim Report states
 In September 2018, the ACT Minister for Health and Wellbeing, Meegan Fitzharris MLA issued a statement on workplace culture which committed the ACT Government to an independent review of the culture within the public health services. This report is the Interim Report, with a final report due before the end of March 2019. The purpose of this report is to present initial high-level findings and a range of recommendations to support improvements to the workplace culture across the ACT Public Health System. 
The Review operated in accordance with the following Terms of Reference: 
a) Examine and report on the workplace culture of public health care services in the ACT and provide advice on any systemic and institutional issues. This examination should take into account any examples of best practice workplace culture and professional conduct in the delivery of public health care in the ACT, nationally and internationally. 
b) Examine any claims made in relation to inappropriate conduct and behaviours related to the delivery of public health care services in the ACT, and provide advice on: i. best practice responses to such complaints; ii. whether referral of such complaints should be made to any other authority; and iii. what support services should be provided to complainants. 
c) Examine and report on the existing workforce policies and complaints management practices to ensure their relevance and appropriateness in achieving satisfactory outcomes for all parties. 
d) Provide findings and recommendations for: i. further improving workforce culture across the ACT public health system; and ii. additional support systems required for staff and management engaged in the delivery of public health services in the ACT, including processes, training and professional development.
The Review specifically excluded investigation of individual allegations of inappropriate workplace behaviour and bullying and harassment. Where clusters of complaints were received, the senior executive of the relevant arm of the ACT Public Health System was advised. Similarly, where the Reviewers were particularly concerned during interviews about the wellbeing of an individual, with the agreement of that individual, again, a senior executive was notified. Despite the scepticism expressed by some that this Review would achieve any more than previous attempts to improve the workplace culture, the overwhelming response to the call for submissions revealed a deep desire from staff and the community for change. ... 
The Reviewers complemented these sources of information with numerous individual interviews and forums with a broad spectrum of groups including medical practitioners, nurses, allied health workers, support and administrative staff, NGOs, consumers, executives and unions. These conversations enabled the Reviewers to test findings about the problems and issues, discuss areas of best practice and identify practical solutions. Prior to presenting the results, the Reviewers wish to emphasise the positive and professional approaches they witnessed in many areas of the ACT Public Health System and the dedication of both individuals and groups in the delivery of quality care. The Reviewers have been cautious to ensure these positive aspects are not lost within the report and instead, present opportunities to build the culture by leveraging off existing strengths. It should also be emphasised that the ACT Public Health System is not alone in health sector workplace culture issues of inappropriate behaviours, bullying, discrimination and harassment. All other States and Territory health services have identified similar issues in their workplace, as have studies in international health services. 
Turning to the findings, the submissions overwhelmingly highlighted:
  • inappropriate behaviours and bullying and harassment in the workplace 
  • inefficient procedures and processes including complaints handling 
  • inadequate training in dealing with inappropriate workplace practices 
  • inability to make timely decisions 
  • poor leadership and management at many levels throughout the ACT Public Health System, and 
  • inefficient and inappropriate Human Resource (HR) practices, including recruitment.
The results from the survey similarly pointed to a number of concerning trends with 60% of respondents having witnessed bullying over the past twelve months and 35% having experienced bullying themselves. Most of the bullying was staff-on-staff. Of great concern was that 12% of staff indicated they had been subjected to physical harm, sexual harassment or abuse at work. Of these staff, 46% indicated it was by someone they worked with and 37% was by a member of the public. Almost three in four who experienced bullying or were subjected to harm did not submit a formal complaint, and worryingly, only 22% of staff had confidence in the way grievances were resolved once they were identified and reported. 
The survey results were similar across all three arms of the ACT Public Health System (ie. Canberra Health Services, Calvary Public Hospital and the Health Directorate) and were worse than comparable data for NSW Health. 
The information gathered from submissions, individual and group interviews and the staff survey reveal a worrying and pervasive poor culture across the ACT Public Health System. There are pockets of high performance where staff are proud of the quality of their work and were keen to demonstrate it to the Reviewers. By contrast, there were areas where a very poor culture had persisted over many years, and where bullying and other poor performance had not been addressed. 
Pride in working for the ACT Public Health System is low, bullying is common and confidence in how the system resolves grievances is extremely low. These issues have been identified in previous reviews(3) and audits. A point regularly raised in submissions was that whilst the contribution of poor leadership over the past few years has led to this unhealthy workplace culture, it was also generally acknowledged that this poor culture had been present for many years. 
Cautious optimism was expressed by many regarding the new leadership in the Health Directorate, Canberra Health Services and Calvary Public Hospital. However, it was acknowledged by all that establishing a great health service was a long-term proposition. The Reviewers believe the starting point for the ambition to create a happier and healthier health service requires a concerted effort by all parties and partners to ensure the vision and values of the ACT Public Health System are lived values, embraced throughout the system, integrated with strategy and constantly reflected in leadership. 
There is little doubt the vast majority of staff provide high quality health care and strive for excellence. Less embedded are the values of collaboration, integrity and respect. A program based on the Vanderbilt University Medical Center (United States) is proposed for adoption as a matter of priority throughout Calvary Public Hospital, Canberra Health Services and the Health Directorate. The program is designed to build a culture of safety and quality in the workplace by training and thus empowering staff to better support each other and raise concerns early. All evaluations of that program demonstrate its effectiveness. Programs adopting Vanderbilt principles are being implemented at present in an expanding number of health service organisations across Australia. These include the St Vincent’s Health Australia Ethos Program, and the Cognitive Institute Speaking Up for Safety and Promoting Professional Accountability programs. 
The Reviewers believe implementation of such a program would greatly benefit the ACT Public Health System in addressing issues related to poor behaviour, bullying and harassment. Developing, valuing and sustaining strong partnerships and relationships is an important mechanism to strengthen the culture within the ACT Public Health System. Internally, strengthened relationships are needed between Clinical Divisions in Canberra Health Services, between the acute and community health sectors, and between Canberra Health Services and Calvary Public Hospital. 
Externally, improved relationships with NGOs, universities, and other health sectors such as NSW Health are needed. Such improved relationships will not only contribute to improved coordinated care and enable a better research and learning system but, importantly, will help strengthen culture by breaking down the relative isolation of the ACT Public Health System. Commendable work is progressing in some of these areas with internal and external relationship building underway. Examples externally include the recent research summit with the university sector and, internally, the realignment and improved cohesiveness of the clinical divisional structures in Canberra Health Services. 
A necessary prerequisite to good clinical governance in any health system is clinical engagement. A number of very dedicated clinicians, including medical clinicians have fully engaged with this Review, even though some expressed reservations regarding the Review’s impact. However, it was apparent that, unlike nurses and allied health workers, the significant majority of the medical workforce did not engage. This was indicative to the Reviewers that such disengagement was symptomatic of their general disengagement from the management of ACT public hospitals and health services. 
Clinicians who are disengaged usually continue to provide high quality care to their individual patients which is why the hospitals in the ACT still achieve good clinical outcomes. However, such disengagement means that the health system does not benefit from the knowledge and input of individual clinicians who provide little consistent input to opportunities to improve the quality of care across the system. In such a disengaged system, clinicians continue to carry out their duties, putting their patients first, as is appropriate. Despite the positive feedback they receive from their patients and recognising at an individual patient level the outcomes they achieve, disengaged clinicians are often cynical, distrustful of the system, lack pride in their organisation, and are unhappy in the workplace. 
A critical success factor to improving the ACT Public Health System workplace culture is to enhance clinical, in particular medical, engagement within the health system. The onus to engage should be equally recognised by both individual clinicians and the system in which they work. Enhanced clinical engagement contributing to improved clinical governance is proposed. It is also proposed that, in line with many other health services across Australia, the divisional structure in Canberra Health Services should progressively adopt Clinical Divisional Directors with Business Manager support. Submissions from both individuals and organisations to the Review highlighted the inadequacy of the HR practices across all levels of the ACT Public Health System, particularly around HR systems and the local implementation of policies and procedures.  
Consistently raised themes include, inappropriate recruitment practices, lack of “customer” focus by HR staff, opaque, often heavy-handed processes of complaints handling, a perception of insufficient and uncoordinated training programs and general inefficiencies and duplication of HR processes and practices. A number of recommendations follow, which address these issues. At the time of preparing this Interim Report, a number of initiatives were underway designed to improve staff welfare. For example, the Ministers for Health and Wellbeing and Mental Health in mid-December 2018 announced the Nurses and Midwives: Towards a Safer Culture – the First Step – Strategy,  to support the fundamental rights of nurses and midwives to be safe and protected in the workplace. Similarly, the new CEO of Canberra Health Services advised the Reviewers of strategies she is implementing in such areas as: • reducing occupational violence • establishing an employee advocate role, and • facilitating targeted workshops for teams and departments with recognised disharmony and poor culture. 
All these initiatives are strongly supported by the Reviewers. However, it needs to be emphasised that the level of dissatisfaction and distrust is high and effecting the necessary improvements will be a long process that will require sustained attention. The Reviewers acknowledge the challenges in resetting the culture of a complex, multifaceted system like the ACT. Writing this report is the easy phase. For this Review to fully realise its intent and deliver the desired outcomes there will need to be a focus on developing a sustained, transparent and measurable approach for monitoring implementation. 
An Implementation Committee is proposed, chaired by the Minister for Health and Wellbeing including as members; the Minister for Mental Health, the Director-General (ACT Health), the CEO (Canberra Health Services), the General Manager (Calvary Public Hospital), Health Care Consumers Association of the ACT, relevant unions, Australian Medical Association (AMA), Australian Nursing and Midwifery Foundation (ANMF) and relevant Colleges. The Implementation Committee should auspice an independent annual external review, with similar methodology to this Review, which measures the extent of success of the implementation of the recommendations and the consequent impact on cultural change within the ACT Public Health System.
Recommendations are as follows
Recommendation 1: That the three arms of the ACT Public Health System should commence a comprehensive process to re-engage with staff in ensuring the vision and values are lived, embraced at all levels, integrated with strategy and constantly reflected in leadership. To achieve this the Health Directorate should take the lead in providing the necessary tools and guidelines and coordinate the implementation by Canberra Health Services, Calvary Public Hospital and the Health Directorate. 
Recommendation 2: That the Health Directorate, in conjunction with Canberra Health Service and Calvary Public Hospital develop an appropriate suite of measures that: • reflect on elements of a great health service - both culture and strategy • monitor patient/client perspectives of outcomes/experience • engage clinicians in their development, and • measure and monitor progress in clinical engagement. 
Recommendation 3: That a program designed to promote a healthier culture to reduce inappropriate workplace behaviour and bullying and harassment be implemented across the ACT Public Health System. The model adopted should be based on the Vanderbilt University Medical Centre’s Patient Advocacy Reporting System (PARS) and Co-worker Observation Reporting System (CORS). 
Recommendation 4: The Health Directorate convene a summit of senior clinicians and administrators at both Canberra Health Services and Calvary Public Hospital to map a plan of improved clinical services coordination and collaboration. 
Recommendation 5: The CEO of Canberra Health Services should review mechanisms to better integrate clinical streams of the community health services within the Clinical Divisional Structures. 
Recommendation 6: That the Health Directorate re-establish open lines of communication with the NGO sector and other external stakeholders. 
Recommendation 7: The initiatives already underway to develop a valued and more coordinated research strategy in partnership with the academic sector and others is strongly supported. This provides a mechanism to address culture, encourage professional development, education, training, research and other strategic issues. 
Recommendation 8: That discussions occur between ACT and NSW with a view to developing a Memorandum of Understanding (MoU) for improved collaboration between the two health services for joint Ministerial consideration. 
Recommendation 9: Clinical engagement throughout the ACT Public Health System, particularly by the medical profession, needs to be significantly improved. Agreed measures of monitoring such improvement needs to be developed through consensus by both clinicians and executives. Such measures should include participation in safety, quality and improvement meetings, reviews and other initiatives. 
Recommendation 10: There should be a clear requirement for senior clinicians to collaboratively participate in clinical governance activities. 
Recommendation 11: Canberra Health Services and Calvary Public Hospital should assess the appropriateness of the Choosing Wisely initiative as a mechanism for improving safety and quality of care, developing improved clinical engagement and greater involvement in clinical governance. 
Recommendation 12: That Canberra Health Services adopt the progressive evolution of clinically qualified Divisional Directors across each clinical Division with Business Manager support and earned autonomy in financial and personnel management. 
Recommendation 13: That an executive leadership and mentoring program be introduced across the ACT Public Health System specifically designed to develop current and future Clinical Directors and executive leaders. This program should include both current and emerging leaders. 
Recommendation 14: The three arms of the ACT Public Health System should review their HR staffing numbers and functions in light of the concerns staff have expressed regarding timeliness and confidence in current HR procedures, and the future needs for HR, as proposed in this Review. 
Recommendation 15: The recruitment processes in the ACT Public Health System should follow principles outlined in the Enterprise Agreements, Public Sector Management Act 1994 and relevant standards and procedures. 
Recommendation 16: The range of training programs for staff offered by the ACT Public Health System should be reviewed with respect to their purpose, target audience, curriculum, training styles and outcomes so that they address the issues raised in this Review. 
Recommendation 17: Should the recommendations of this Review be accepted, a public commitment should be jointly made by the Ministers for Health and Wellbeing, and Mental Health, the Director-General (ACT Health), the CEO (Canberra Health Services), the General Manager (Calvary Public Hospital), Senior Executives across ACT Public Health System and key representative organisations to collectively implement the recommendations of this Review to ensure ongoing cultural improvement across the ACT Public Health System. 
Recommendation 18: A ‘Cultural Review Oversight Committee’ should be established to oversight the implementation of the Review’s recommendations. The Committee should be chaired by the Minister for Health and Wellbeing, and include the Minister for Mental Health, the Director-General (ACT Health), the CEO (Canberra Health Services), the General Manager (Calvary Public Hospital), Senior Executives across ACT Public Health System, the Health Care Consumers Association of the ACT, relevant unions, AMA, ANMF and relevant Colleges. 
Recommendation 19: That the ‘Cultural Review Oversight Committee’ auspice for the next three years, an annual, independent and external review of the extent of implementation of the recommendations of the Review and consequent impact on cultural changes within the ACT Public Health System. 
Recommendation 20: As a result of this Review, the ‘Cultural Review Oversight Committee’ should prioritise the development of a change management and communications strategy, which clearly articulates to staff, patients/clients and the community the nature of the issues to be addressed and the mechanisms for doing it.