Privacy ADR

The Privacy Amendment (2015 Measures No. 1) Regulation 2015 Cth) amends the Privacy Regulation 2013 to make the current temporary exemption from the external dispute resolution (EDR) membership obligation for commercial credit providers ongoing.

It also extends to 1 January 2016 the temporary exemption from the EDR membership obligation for utilities in the ACT, the Northern Territory, Queensland, South Australia and Tasmania.

Rights and Responsibilities Charter

The new Victorian Government has announced a review of the state's Charter of Human Rights and Responsibilities, lead by Michael Brett Young.

The Government comments

 During the last term of government, the Coalition significantly reduced the emphasis placed on the Charter and made cuts to Charter education and training for government departments. This review is the first step in delivering the Labor Government’s election commitment to refresh the Charter and resume public education to embed the values of freedom, respect, equality and dignity in society. The report – which will include consultation with key stakeholders and submissions from the public – will be delivered to the Government by 1 September 2015, before being tabled in Parliament by 1 October 2015. 

The Review is to inquire into and report on the operation of the Charter, including:

1. Ways to enhance the effectiveness of the Charter, including, but not limited to:

a. reviewing the submissions from the 2011 Scrutiny of Acts & Regulations Committee review and the Committee’s report 

b. the functions of the Victorian Equal Opportunity & Human Rights Commission under the Charter and the Victorian Ombudsman under the Ombudsman Act 1973, especially with respect to human rights complaints 

c. the effectiveness of the scrutiny role of the Scrutiny of Acts & Regulations Committee 

d. the development of a human rights culture in Victoria, particularly within the Victorian public sector 

e. the application of the Charter to non-State entities when they provide State-funded services. 

2. Any desirable amendments to improve the operation of the Charter, including, but not limited to:

a. clarifying the provisions regarding public authorities, including the identification of public authorities and the content of their human rights obligations 

b. clarifying the provision(s) regarding legal proceedings and remedies against public authorities 

c. clarifying the role of human rights in statutory construction 

d. clarifying the role of the proportionality test in s 7(2), in particular as it relates to statutory construction and the obligations of public authorities 

e. clarifying the obligations of courts including under ss 4(1)(j) and 6(2)(b) 

f. the need for the provision for an override declaration by Parliament under s 31 

g. the effectiveness of the declaration of inconsistent interpretation provision under section 36 

h. the usefulness of the notification provision(s) including under s 35 

i. any other desirable amendments. 

3. A recommendation under s 45(2) as to whether any further review of the Charter is necessary.

Tax Dispute Justice

One inference from the latest report by the Inspector General of Taxation [PDF] is that the wealthy get off more lightly than poor taxpayers who are in dispute with the Australian Taxation Office.

The report states -

On 2 June 2014, the then Acting Assistant Treasurer, Senator the Hon Mathias Cormann, referred an Inquiry into Tax Disputes (the Inquiry) to the House of Representatives Standing Committee on Tax and Revenue (the Committee). The Committee adopted the Inquiry and announced that it would consider, amongst other things, ‘whether a separate agency should manage ATO [Australian Taxation Office] litigation, whether the ATO should have a separate appeals area, or if current arrangements should continue.’ On 11 June 2014, the Committee requested that the Inspector-General of Taxation (the IGT) undertake a review into the large business and high wealth individual (HWI) themes of the Inquiry.

The IGT had previously examined different aspects of the ATO’s approach to dispute management and resolution, including objections, settlement, litigation and the use of alternative dispute resolution (ADR). Furthermore, the IGT has also considered the ATO’s compliance approach to large business and HWIs in separate reviews. In this review, the IGT has drawn on this body of work, submissions to the current review as well as additional research and analysis including comparisons with the revenue authorities of the United States of America, Canada, the United Kingdom, New Zealand and Ireland.

The IGT has observed that the underlying cause of many concerns raised in submissions appears to be a lack of separation between the ATO’s original decision makers and its officers who review such decisions at the request of taxpayers. This has given rise to a lack, or perceived lack, of independence leading taxpayers to believing that their cases were not reconsidered afresh and they were denied a fair hearing. Accordingly, some taxpayers are of the view that they cannot have their matter objectively reconsidered until they reach the Administrative Appeals Tribunal (AAT) or the Federal Court of Australia. Such view is supported by the ATO’s statistics. For example, in 2013‒14, 85 per cent of taxpayer disputes were resolved without hearing when they reached the AAT. While there are a range of reasons for matters being resolved at such a late stage, the high rate of resolution indicates that a substantial proportion of cases are not being appropriately reconsidered by the ATO before the taxpayer invokes external review procedures.

Following earlier IGT reviews, the ATO has embarked on a program of work to improve its compliance and dispute resolution approaches particularly in relation to large businesses and HWIs. As a result, stakeholders have acknowledged recent improvements in the ATO’s approach to these market segments. Such improvements include the transfer of the objections function from the Compliance Group to the Law Design and Practice Group for taxpayers with $100 million or more annual turnover and the introduction of a process to review ATO initial positions before assessments are issued for taxpayers with annual turnovers of $250 million or more.

Whilst the ATO’s recent initiatives represent a positive step in relation to its management and resolution of tax disputes, there is a need for further improvements which are sustainable over time and made available to all taxpayers including small business and individual taxpayers. These taxpayers are the least likely to be in a position to take a dispute to the AAT or the courts due to the significant financial and opportunity costs incurred both upfront and progressively throughout disputes.

Therefore, the IGT has recommended the creation of a separate and dedicated Appeals Group, led by a new Second Commissioner, to embed the improvements within the ATO structure and provide a framework that is less dependent on the views and ideals of the ATO leadership of the day. It will also bring the ATO more in line with comparable international revenue authorities.

The new Appeals Group would manage and resolve tax disputes for all taxpayers including the conduct of pre-assessment reviews, objections and litigation as well as championing the use of ADR throughout the dispute cycle. The separation from both the ATO’s compliance and legal advisory functions would facilitate a fresh and impartial review of the taxpayer’s case by empowering officers of the new area to resolve disputes through the most appropriate means, taking into consideration the individual circumstances of the taxpayer, their case and assessment of the ATO’s precedential view. Additionally, the new area would ensure that settlements are appropriately scrutinised and in the best interests of the community.

The IGT notes that some stakeholders have suggested the need for a separate agency to be established to manage tax disputes. While the IGT recognises that the creation of a separate agency would represent the highest levels of independence, there are challenges associated with this option, including increased costs and overlap with existing external review bodies, such as the AAT. The IGT believes that this course of action should be considered in future if significant concerns persist following the implementation of the recommended separate Appeals Group.

The IGT has sought to achieve the highest level of independence whilst retaining the dispute management function within the ATO. In this regard, the need for the Appeals Group to be headed by a new Second Commissioner is paramount as such roles are statutorily appointed and their tenure and remuneration is pre-determined by the Government and the Remuneration Tribunal respectively and not the head of the relevant agency. Such an arrangement accords with the views of the International Monetary Fund on the separate leadership of an internal appeals function where organisational and practical separation (such as through a separate agency) cannot be achieved.

While the report has largely focused on improvements to the governance framework for tax disputes, the Committee’s terms of reference have highlighted a number of other areas for examination including the collection of revenues due, efficiency, effectiveness and transparency, use and publication of performance information and the legal framework for tax disputes. The IGT has considered and briefly discussed these issues, noting that they have either been examined in prior IGT reviews, will be the subject of current IGT reviews or there are current developments which may impact on these matters and that further time should be afforded before they are examined.

The IGT believes that the appropriate implementation of the recommendation in this review will result in a more efficient, effective and transparent tax dispute management process to which all taxpayers will have equal access and will have confidence that they will be treated fairly and equitably.

The Inspector General's recommendations are -

Tax disputes are a feature of any tax system and to some extent reflect the complexities which have evolved. In some instances, disputes serve to support the health of the system by clarifying areas of uncertainty for the benefit of the community. However, there are costs associated with tax disputes for both the ATO and for taxpayers. These costs may be financial, emotional or reputational. Having regard to these impacts and the concerns discussed in previous chapters, the majority of stakeholders have called for improved governance and processes in the management of tax disputes for all taxpayers.

The importance of a robust governance framework cannot be overstated. The ATO, by necessity, is a monopoly service provider and has considerable power, such as compulsory extraction of money and restricting freedom of movement, which may largely be exercised without the need for a Court order. Therefore, there is a need for robust checks and balances. In the past, the IGT has recommended the establishment of an oversight or advisory Board to bring a diverse mix of expertise into the ATO. This recommendation remains relevant having regard to the practices of other OECD jurisdictions as well as those of other agencies in Australia.

There is also a need for specific structural reform and a governance framework to address concerns with the management of tax disputes. This has been explored in Chapter 4 as well as the Tax Forum Submission.

The IGT acknowledges that the ATO has made recent efforts in implementing a more effective approach to minimising disputes, particularly in the large business and HWI taxpayer segments. Such changes are welcomed and necessary to meet changing community expectations of it as a service provider rather than merely administrator and regulator. These changes also mark a stage in the ATO’s evolution from one of a managerially directed organisation focused on technical accuracy to an organisation that achieves appropriate technical outcomes in a responsive and equitable manner.

Notwithstanding the recent positive changes, significant concerns, set out in the previous chapters, continue to be raised and the IGT is of the view that they can only be addressed by structural change, i.e. through the creation of the Appeals Group. The Appeals Group would be a centralised, dedicated and separate internal group within the ATO to manage tax disputes independently for all taxpayers, including conducting pre-assessment reviews, objections and litigation processes and employing ADR as necessary.

As set out in Chapter 4, the centralisation of the disputes management function through the Appeals Group would yield a number of benefits. Firstly, it would ensure equal access for all taxpayers to effective pre-assessment reviews, without arbitrary distinctions between categories of taxpayers, by providing a singular channel through which taxpayers may seek access where discussions with the compliance team have reached an impasse. An effective pre-assessment review process would operate as quality assurance of the audit decision before NOAs are issued, which can have significant adverse impacts on taxpayers. As discussed in Chapter 3, this is particularly important for small business and individual taxpayers for whom the financial and emotional costs of external dispute management processes, i.e. the court and tribunal systems, may act as a barrier to accessing justice.

Secondly, it would enhance the actual and perceived independence of the objection process by removing all objections from the Compliance Group. This would assist to enhance community confidence that where objections are lodged, they will be approached with ‘fresh eyes’ and all matters will be considered without influence from other areas within the ATO, i.e. the LD&P and Compliance Groups.

Thirdly, the conduct and management of litigation would be enhanced by empowering litigation officers to independently consider the merits of a case, the competing legal positions of the ATO and the taxpayer and determine whether the case should be progressed or otherwise settled. In so doing, the Appeals Group would also provide independent oversight and advice on the ATO’s approach to settlements, ensuring that any settlements are in accordance with the existing governance processes and in the best interests of the community. In this role, the Appeals Group would perform a function akin to the Solicitor-General in providing advice on significant matters and would be analogous to the current Tax Assurance Commissioner in HMRC.

Fourthly, the Appeals Group would provide a centralised resource for the ATO on all dispute resolution matters and, in particular, the use of ADR. The Appeals Group would be well-placed to provide advice and assistance on the use of ADR throughout the compliance and dispute resolution process, including at the above three stages to ensure that the most effective techniques are applied to resolve disputes as early as possible. In addition to providing advice and assistance, the consolidation of the dispute resolution and ADR function within the Appeals Group would increase its profile within the ATO and assist to embed the ATO’s intended dispute resolution culture throughout the organisation.

Finally, there are synergistic benefits to be realised through centralising the ATO’s end-to-end tax disputes management process. These include:

• having multiple points at which disputes are reconsidered and learnings captured and fed back earlier in the process to minimise the instances of disputes arising in the future; and 

• enabling early intervention from disputes resolution specialists who may be better able to settle cases or identify significant or test cases to be litigated for law clarification purposes.

The effectiveness and independence of the Appeals Group in the performance of these functions requires strong leadership through the appointment of a new Second Commissioner, dedicated to lead this area within the ATO. As previously noted, whilst an internal area cannot be truly independent of the organisation, it can be made as independent as possible through separate and distinct senior leadership with specific accountability and reporting requirements. As noted earlier, the tenure and remuneration of the Second Commissioner would be determined by the Government and the Remuneration Tribunal respectively and not the Commissioner.

The creation of the Appeals Group would also be in line with the majority of submissions received by the IGT during the course of this review, current international practice across a number of jurisdictions as well as IGT recommendations made in earlier reviews and other forums.

The IGT has also had the benefit of examining transcripts of public hearings and submissions made by the ATO to the Committee. In particular, the IGT has considered the ATO’s concerns regarding the creation of a new Second Commissioner to lead a separate appeals area. However, the ATO has discussed and opposed this option together with the option to create a separate agency to handle tax disputes. Whilst, the IGT agrees with the ATO position with respect to the latter, the IGT does not believe they have made a compelling case against the former.

The ATO’s concerns with a new Second Commissioner leading the Appeals Group centres around costs, restricted communication and a barrier to effective feedback loops. In the IGT’s view , such suggestions of costs and restricted communication do not only apply to dispute resolution but to the demarcation of any function within the ATO. Wherever there is separation between any functions, there will be limits to communication and information exchange. In relation to dispute resolution such separation ensures that taxpayers are perceived to be given genuine reconsideration of their disputes and the organisational framework supports a robust internal culture of dispute resolution.

The IGT accepts that feedback loops are an important mechanism to improve ATO decision making. However, the creation of the Appeals Group should not diminish feedback loops due to the restricted communication. This is not borne out by the experience in other jurisdictions, such as the IRS, and the IGT further notes that existing arrangements between the ATO and the Treasury demonstrate that ongoing effective feedback can occur even between separate agencies.

The ATO has also raised concern about tensions between the Appeals Group and other areas of the ATO and the Commissioner effectively having to ‘umpire’. The IGT believes that such tensions, when appropriately managed, would assist the ATO to build community confidence and address any remaining perceptions of bias by reason of the function remaining within the ATO and not in a separate agency.

The IGT also considers that the Commissioner should not be required to ‘umpire’ disagreements between the Appeals Group’s leadership and other areas of the ATO beyond what may presently be required as between the Second Commissioners for the Compliance and LD&P Groups. In the majority of cases, the Second Commissioner of the Appeals Group would be the final decision maker with respect to the resolution of a dispute. Where disagreements as to the correct view of the law are unable to be resolved at the Second Commissioner level, the matter could be streamlined to litigation for judicial clarification.

Clearly, the creation of the Appeals Group would require structural change within the ATO. The IGT recognises that structural change may present challenges, and understands that there may be some reticence in that regard. Change takes time to implement, test and embed, such was the experience with the establishment of the IRS Office of Appeals in the early 1990s and the dissolution of the ARG within the ATO during the same time. However, the ATO is currently undergoing a ‘reinvention’ and the formation of the Appeals Group could be a part of that restructure. Accordingly, the IGT believes that it is an ideal time to implement such a positive step in improving tax dispute resolution in this country.

The IGT also notes that, generally, there is some inertia towards change. However, once such changes are implemented and bear fruit, the initial opposition fades and positive outcomes are embraced. In this respect, parallels may be drawn in relation to a number of IGT recommendations which were initially rejected by the ATO, or required substantial persuasion, but ultimately were adopted and resulting successes celebrated by the ATO. The ATO’s most recent submission to the Committee highlights a number of such examples including:

• the implementation of the ATO’s in-house facilitation program (IGT ADR Review, recommendation 3.6) and IR process (IGT Large Business Review, recommendation 9.3); 

• earlier and better engagement in person to minimise the extent of disputes arising particularly when the ATO is interacting with individual and small business taxpayers (IGT ECT Review, recommendation 3.5); 

• improving early identification of potential test cases and adopting a more flexible approach to test case funding (IGT ADR Review, recommendation 4.2); 

• increasing transparency of ATO decisions by engaging with small business taxpayers before issuing position papers to explain technical positions and why taxpayers have been selected for audit (IGT SME/HWI Review, recommendations 5.2 and 5.4); 

• making greater use of declaratory proceedings in tax disputes (IGT ADR Review, recommendation 4.3); 

• reducing timeframes for considering objections (IGT Objections Review, recommendation 4); 

• improving technical decision making, including by improving auditor access to technical experts and emphasising greater focus on facts and evidence (IGT, SME/HWI Review, recommendation 3.2); 

• implementing performance measures which focus on the taxpayer experience (IGT SME/HWI Review, recommendation 2.17; IGT ADR Review, recommendation 5.4); and 

• developing a dispute resolution charter (IGT ADR Review, recommendation 5.2).

A less celebrated change has been the transfer of the objections function for large businesses from the Compliance Group to the Law Group. This recommendation was made by the IGT in the ADR Review and originally rejected by the ATO.

The number of past IGT report recommendations which have been implemented and evolved into lasting improvements in the ATO’s administration highlights two important points. Firstly, it illustrates the importance of external scrutineering within a transparent system of administration where a different and principled professional viewpoint on improvements may be discussed, negotiated and implemented for the benefit of the whole community. Secondly, it demonstrates that change is not always immediate and that significant and lasting change may require some time to become accepted and the benefits fully realised.

The creation of the Appeals Group would be an example of such a significant change. The IGT accepts that there may be some resistance at the outset to the change but is confident that such change is necessary to ensure that the benefits presently being initiated are appropriately enhanced and captured within an appropriate legislative framework that will stand the test of time. Such a framework should outline key aims and expectations whilst allowing flexibility to accommodate future needs and requirements.

The IGT recommends that the Government consider legislatively:

1.creating a separate Appeals Group, which would be headed by a new and dedicated Second Commissioner, responsible for managing tax disputes for all taxpayers, through: (a) pre-assessment reviews; (b) objections; (c) litigation including identifying test cases and providing oversight on settlements; and (d) facilitating the use of ADR throughout the compliance and dispute resolution process; and establishing a framework for the development of communication protocols between the Appeals Group and other areas of the ATO to ensure that the Appeals Group is, and is seen to be, independent in its dispute resolution function. 

2. establishing a framework for the development of communication protocols between the Appeals Group and other areas of the ATO to ensure that the Appeals Group is, and is seen to be, independent in its dispute resolution function.

Homeopathy Self-certification

Questions about tertiary-sector homeopathy education provider serlf-certification and TEQSA review, from the 25 February 2015 Education & Employment Legislation Estimates Committee hearing

Senator KIM CARR: Could I turn to the question of homeopathy-one of my favourite topics, as you know, Professor. I would like to deal with a specific case. I understand that Dr Ken Harvey has sought by FOI matters relating to the reaccreditation report for homeopathy offered by ParaPharm in Western Australia. Do you have any detail of that matter?

Prof. Saunders: I have some detail of that matter, yes.

KIM CARR: As I understand it, there are two degree courses offered in homeopathy, one in Western Australia by ParaPharm, and there is one on the east coast as well, is there?

Prof. Saunders: By the Australian College of Natural Medicine, yes.

Senator KIM CARR: Is it the case that the NHMRC has released a finding of the committee reviewing homeopathy which has found that there is no good evidence to actually support the discipline?

Prof. Saunders: That is correct.

Senator KIM CARR: Do take any note of that?

Prof. Saunders: Absolutely, I take note of that. It was conducted by somebody I have a great deal of respect for.

Senator KIM CARR: Who is that? Can you refresh my memory.

Prof. Saunders: Paul Glasziou, from Bond University.

Senator KIM CARR: There was no trick question there.

Prof. Saunders: It was a very thorough examination of the evidence at hand.

Senator KIM CARR: There was also a committee chaired by the Chief Medical Officer. Is that the case?

Prof. Saunders: I think that relates to something else. I think it relates to the funding of these.

Senator KIM CARR: The Review of the Australian Government Rebate on Private Health Insurance for Natural Therapies.

Prof. Saunders: Yes, that is correct.

Senator KIM CARR: Not an unrelated topic, I would have thought. I understand that the report of the committee chairman has been with the government for some while. Are you aware of that.

Prof. Saunders: No, I am not aware of the delays or whether there have been delays.

Senator KIM CARR: I understand the two homeopathy programs that I have referred to were in fact accredited by state authorities originally. Is that the case?

Prof. Saunders: Originally; that is correct, yes.

Senator KIM CARR: They are now up for reaccreditation with your agency. Is that correct?

Prof. Saunders: Yes.

Senator KIM CARR: In fact, the Western Australian course was up for reaccreditation at the end of last year-

Prof. Saunders: Yes.

Senator KIM CARR: and I understand the Sydney course-the Endeavour college course-comes up for reaccreditation in a couple of months time.

Prof. Saunders: Yes.

Senator KIM CARR: What is the process you will be using to reaccredit this particular program?

Prof. Saunders: It is the process that we would use for all course accreditations. It is a mixture of our own assessment as well as sending the courses to external experts.

Senator KIM CARR: How many external experts?

Prof. Saunders: It would depend, but in general terms we would send a course to two experts. If there is a suite of courses we might actually send it to more experts than that. Sometimes we do not use experts at all.

Senator KIM CARR: If you do not use experts at all, who does the assessment?

Prof. Saunders: We sometimes have internal expertise, the background of people within TEQSA; sometimes we are assessing the fifth course in a single field of, say, a business field and we have confidence in what the external experts have said previously.

Senator KIM CARR: Am I correct in saying that while a course is under the process of reaccreditation it is entitled to continue?

Prof. Saunders: That is correct.

Senator KIM CARR: Have you made a decision in regard to the Western Australian course?

Prof. Saunders: No, we haven't. We are in the process of making that decision, and it would not really be appropriate for me to say much more.

Senator KIM CARR: No, but you have not made it.

Prof. Saunders: We have not made a decision on that.

Senator KIM CARR: And the provider can continue while that process is underway.

Prof. Saunders: That is correct.

Senator KIM CARR: The second course-I have a date here of 2 April 2015 for reaccreditation - have you commenced the process for that?

Prof. Saunders: I would have to take that question on notice. The submission usually has to be made six months prior to the expiry of the date, so yes we would have at least received that.

Senator KIM CARR: So it is a reasonable expectation that that has commenced as well. Are there any courses in alternative therapies that you are examining at the moment?

Prof. Saunders: At the moment, we have courses from Study Group Australia. To my knowledge, that is the only other application coming from providers we have not already mentioned.

Senator KIM CARR: How many students are involved in Study Group?

Prof. Saunders: I would have to take that question on notice.

Senator KIM CARR: That is based where-in Melbourne?

Prof. Saunders: I would have to take that question on notice. I think Study Group has multiple campuses, but I will have to take that on notice.

Mr Griew: You may be interested that there are also nine complementary medicine degrees at universities.

Senator KIM CARR: Yes, there are some issues there too, I am sure. When will you get to look at those?

Prof. Saunders: If it is relevant, we will look at those at the time of reregistration.

Senator KIM CARR: Dr Ken Harvey has sought advice from you in regard to the re-accreditation report. Is that correct?

Prof. Saunders: The re-accreditation of?

Senator KIM CARR: ParaPharm in Western Australia.

Prof. Saunders: That is correct.

Senator KIM CARR: Did the document provided back to Dr Harvey under FOI include the name of the external reviewer - who, I am told, is a naturopath - used by TEQSA?

Prof. Saunders: The response to Dr Harvey had to be considered in the context that this was an application that was still under assessment. There had to be processes that were fair to the provider. There were also commercial-in-confidence considerations in that what we were considering was the intellectual property of the provider, and there were a range of other matters that had to be taken into account. So the material released to Dr Harvey was very limited.

Senator KIM CARR: How long would you sit on a report of this type?

Prof. Saunders: We do not sit on reports.

Senator KIM CARR: When was the report finalised?

Prof. Saunders: We have not finalised the report for this particular provider. As I said, this is a process that is ongoing. It would not be appropriate for me to talk about any particular stages.

Senator KIM CARR: But you did provide Dr Harvey with a document concerning the process that TEQSA was using, including the name of the external reviewer?

Prof. Saunders: Yes.

Senator KIM CARR: You have indicated that you are mindful of the NHMRC review?

Prof. Saunders: Yes.

Senator KIM CARR: Have you adopted a policy of prioritising the commercial interests of private providers over the public's right to know what the bases of accreditation decisions are?

Prof. Saunders: Absolutely not.

Senator KIM CARR: Why is that?

Prof. Saunders: We believe there needs to be a balance between considering the interests of both the provider and the public. All our FOI decisions are based on those considerations.

Senator KIM CARR: That is in regard to the FOI decision. I am asking you in regard to your accreditation process.

Prof. Saunders: We do not take commercial considerations into account at all in assessing a course or a provider. As I said, the assessment is done against the standards. The standards refer to matters to do with financial viability but not to the commercial interests of the provider.

KIM CARR: In regard to the re-accreditation of ParaPharm, why did only a single person-not a panel-undertake the review of the course?

Prof. Saunders: That relates to a technical issue with regard to the FOI request.

Senator KIM CARR: How does that work?

Prof. Saunders: We were assessing a number of courses. Dr Harvey asked for information about one course. So we gave Dr Harvey the relevant information about one particular course, but we had other people involved in the assessment of the other complementary-

Senator KIM CARR: The other things at the institution-I see. Can you indicate to me why it was that your expert witness-who I would prefer not to name at this point, but you know the person I am referring to. Is that right, Professor? You are aware of the details of that expert-

Prof. Saunders: I would have to take that on notice. I have seen the report; I just cannot carry the name of the person in my head at the moment.

Senator KIM CARR: All right. Can you indicate what was the basis of the appointment of that particular individual-who as I say, is a naturopath-to examine the operations of this particular college.

Prof. Saunders: That person would be on the TEQSA register or we would have had advice from people who were on the TEQSA register of experts as to who we might approach in this particular circumstance. Finding assessors who are experts in the field of complementary medicine is not easy. We have a range of people that we can go to. We have taken steps in the last six months to try and expand the range of people that we can choose to do those assessments, and I think I will leave it at that. If I may make a comment about the whole issue here-

Senator KIM CARR: I look forward to your comments.

Prof. Saunders: I think it is important that we separate out assessment against a set of educational standards against the recognition, registration and regulation of clinical practitioners. Unfortunately, or fortunately, TEQSA has no role to play in the latter. What we have to do is take a course and look at it from the point of view of the standards, and nowhere in the standards does it talk about the need for material or the course to be scientifically based. Nowhere does it have any content-specific standards. What it says is that the body of knowledge upon which this is drawn has to be coherent and it has to actually have scholarship associated with it, and there are other standards in there about intellectual inquiry of students and promoting those sorts of critical appraisal skills and the like. So, when we apply the standards to something like a course in homeopathy, we are not asking the question as to whether the science or the clinical outcomes of homeopathy are appropriate. What we are asking is: does this course position homeopathy in the field such that students who are studying this understand that there is a controversy and that there is strong evidence that it is in fact not an effective clinical regime? We are expecting students to understand the criticisms of homeopathy, not just simply to study in a modular sort of way the tenets of homeopathy. We would use our judgement applying those standards to the accreditation of courses like this.

Senator KIM CARR: Yes. Thank you for that. Do I take it from that there is a degree of discomfort about the way in which this now operates?

Prof. Saunders: No, I do not think there is. If there is discomfort, it would be the same discomfort about accrediting bachelors of theology. We use educational standards about the experience of the student, the coherence of the course, the build, the framework, the learning outcomes that are being achieved and whether it fits with the Australian Qualifications Framework. These are educational standards.

Senator KIM CARR: In terms of publishing the accreditation report for homeopathy, what are you doing about that? When will you be publishing this report?

Prof. Saunders: What we do is that, once we have done our assessment, we then publish the decision of the assessment. We would then be declaring whether or not the assessment has led to a reaccreditation of the course; if it is reaccredited, what are the conditions that are applied on that course; and whether the course has been accredited for a maximum period of 7 years or a shorter period of time. And there is a public notice that we always publish as a part of the national register that actually explains why we have taken those decisions.

Senator KIM CARR: Yes. Now the difficulty here is-and this particular issue has been experienced with regard to ESOS registration and it has been experienced with regard to VET registration-in this particular case, with students that are being enrolled in 2015 - given that I take it you have had this process underway for at least six months?

Prof. Saunders: Yes.

Senator KIM CARR: I take it that you must have completed your work, your-

Prof. Saunders: We are in the final stages of discussion with the provider about provisional findings, yes.

KIM CARR: So what do they do about enrolments for 2015?

Prof. Saunders: They are free to make enrolments until a decision is taken by TEQSA, and if the decision-

CHAIR: Senator Carr-

Senator KIM CARR: I will just-

CHAIR: Senator Ruston has one quick question.

Senator KIM CARR: Yes, sure. My concern, though, is that I take it you have actually decided to allow them to continue?

Prof. Saunders: No, we have not made that decision at all.

Senator KIM CARR: So what do you do with the students, then, if you choose to close them down?

Prof. Saunders: Then they have to have a planned and supervised teach-out of that. Now that would require them to transfer their students to another provider-

Senator KIM CARR: There is only one other provider.

Prof. Saunders: Yes.

CHAIR: All right, can we continue this after dinner if you have more questions for TEQSA, Senator Carr? Senator Ruston, you have a quick question?

Senator RUSTON: Just one.

CHAIR: But I will just double check. Sorry, Minister? Hello, Minister? We just have a question from Senator Ruston.

Senator Birmingham: Sorry, Chair. I was just confirming one point there with Professor Saunders about the course that Senator Carr was asking about the provider for. Being a bachelor course, it is a multi-year course. So the phase-out-type provisions that Professor Saunders was just talking about would have had to apply regardless of the timing of when a decision is made, where a decision has been made in that type of area.

Senator RUSTON: Professor Saunders, I am just wondering in the discussions about the accreditation whether there were any alternative medicine courses already being offered at public universities?

Prof. Saunders: Yes, certainly. Alternative medicine courses are offered by a number of public universities: Central Queensland University, Charles Sturt University, Macquarie University, Murdoch University, RMIT, Southern Cross University, University of New England, University of Technology Sydney and the University of Western Sydney. Chiropractic is the most common course that is being taught in the public universities, but as well as chiropractic they cover naturopathy, traditional Chinese medicine, acupuncture, osteopathy and western herbal medicine, and a couple of those public universities offer a Bachelor of Health Sciences with a generic complimentary medicine stream.

Senator RUSTON: And one assumes that the process of accreditation is exactly the same?

Prof. Saunders: They are self-accrediting institutions, so they would have put these courses through their own proper academic governance processes.

Impersonation and the ACL

In Markan v Queensland Police Service [2015] QCA 22 the appellant alleged three Court of Appeal judges were impersonators and committing human and civil rights abuses, sought extraordinary relief from the respondent’s failure to investigate and prosecute those judges, made "baseless and scandalous allegations" and unsuccessfully invoked the Australian Consumer Law.

The judgment states

On 23 July 2014, a judge of the trial division of this Court made an order striking out the appellant’s claim and statement of claim in proceeding number 4836/14. At the same time, the judge made an order dismissing an application by the appellant for orders in the nature of final relief of various kinds. His Honour also made orders for costs of the proceeding including the costs of the applications.

[4] The appellant appeals against all of those orders. It is convenient to start consideration of the appeal with the primary judge’s order to strike out of the claim and the statement of claim (“strike out order”). If that order was rightly made, it is unnecessary to consider the appeal from the dismissal of the appellant’s application for orders in the nature of final relief. The strike out order was made under the Court’s inherent power and pursuant to Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 171. The grounds for the order were that the claim is so obviously untenable that it could not possibly succeed, that it is manifestly groundless, that it is so manifestly faulty that it does not admit of argument and that it does not disclose a case.

[5] The claim was made against the “Queensland Police Service”. That is a nonexistent defendant. There is no legal entity known as the Queensland Police Service, even though s 2.1 of the Police Service Administration Act 1990 (Qld) (“PSA”) requires that a body of persons is to be maintained under the name and style “Queensland Police Service”. However, it may be that the appellant intended to bring the proceeding against a Commissioner of the Queensland Police Service. That is an office established by s 4.1 of the PSA. The holder of that office is responsible for the efficient and proper administration, management and functioning of the police service.1 The individual who holds the office may have been the target of the appellant’s claim, having regard to the contents of the statement of claim.

[6] For reasons which will appear next, it is not really possible to say whether the claim was brought to vindicate a private right to damages for alleged breach of contract or allegedly suffered by the appellant as a result of a contravention of a provision of the Australian Consumer Law. So, it is also not possible to say who would be the proper defendant. Nevertheless, for the reasons which will also presently appear, it is unnecessary in the present circumstances to engage in further discussion as to the proper defendant.

[7] The claim filed sought extraordinary relief. By par 1, the appellant sought an order that the defendant make public apology utilising all major public media for the harm and distress caused by the defendant’s alleged unlawful conduct. By par 2, the appellant sought an order that the Court declare the Queensland Police Service to be a criminal organisation. By par 3, the appellant sought an order that the court make a recommendation that the people associated with the Queensland Police Service “be sent to re-education facilities where they will be subjected to hard physical labour…”. By par 4, the appellant sought an order that the defendant pay damages assessed as $10,000,000. There was an additional reservation of a right to claim interest and costs.

[8] The statement of claim alleged that the defendant failed to act on complaints made by the appellant about an earlier proceeding in which the appellant was involved. In particular, par 4 alleged that the appellant asked the Commissioner of the Queensland Police Service to arrest, investigate and prosecute three of the judges of the Court of Appeal division of this Court. The subject matter of the appellant’s request to the Commissioner for those actions comprised assertions that their Honours were impersonating judicial officers and had engaged in abuse of human, civil and political rights.

[9] The so-called impersonation and abuses appear to revolve around the appellant’s contention that on 21 March 2014, at the hearing of an appeal in the Court of Appeal, he demanded that the three judges provide evidence of their appointment and competence, which they failed to do. The hearing of the appeal proceeded in the Court of Appeal on that day. On 1 April 2014, the Court made an order dismissing the appeal.

[10] The balance of the statement of claim alleges that the Commissioner repeatedly failed to act on the appellant’s demands that he investigate, arrest and prosecute the relevant judges. It alleges that the Commissioner did so with gross malice and ill will towards the appellant.

[11] In support of his claim, the appellant purports to set up the Commissioner’s failure to act as a breach of contract or as a contravention of the Australian Consumer Law as scheduled to the Competition and Consumer Act 2010 (Cth).

[12] It is unnecessary to further describe the appellant’s claim and statement of claim. They were a clear abuse of process. The allegations made in the statement of claim were baseless and scandalous. The relief claimed is not arguably available at law.

[13] Although not directly relevant to the decision of the Court on this appeal, I note that there is a class of contempt of court constituted by imputations of a court or judge which are calculated to bring the court into contempt or lower its authority. As was said in the majority judgment of the High Court in Gallagher v Durack:

The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that ‘it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued are likely to impair their authority’… The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge ...

[14] This is a case where that good sense of the community can be relied upon in relation to the appellant’s claim and statement of claim. Still, the serious nature of the appellant’s baseless and scandalous allegations should not be overlooked. A scandalous disparagement of a Court of Appeal may constitute a contempt.

[15] Turning to the basis of the decision of the Court below to make the strike out order, the absolute privilege protecting the publication of defamatory matter contained in allegations made in a statement of claim filed in this Court under s 27(2)(b)(i) of the Defamation Act 2005 (Qld) is, in a practical sense, counter-balanced by the Court’s power to permanently stay or dismiss a proceeding or to strike out a claim and statement of claim as an abuse of process because it is “a proceeding without reasonable grounds, so as to be vexatious and harassing”.  It is an important principle that litigants are not to be lightly denied access to the Court. When the right to that access is exercised in a way which constitutes an abuse of process, the proceeding should be stayed, summarily determined or struck out.

[16] In the modern context, there are further statutory powers in the armoury of the Court to deal with applications in a proceeding that are frivolous, vexatious or an abuse of process: see UCPR r 389A. Under that rule, the Court may make an order, including one made of its own motion, that the relevant party must not make a further application in relation to the existing proceeding (including an appeal) without leave or that the relevant party must not start a similar proceeding in the Court against a party to the existing proceeding without leave. Further, the persons identified in s 5 of the Vexatious Proceedings Act 2005 (Qld) may make an application under s 6 of that Act for a vexatious proceedings order against a person who has frequently instituted or conducted “vexatious proceedings” as defined in that Act. Such an order prohibits a person from instituting proceedings or proceedings of a particular type in Queensland without the leave of the Court granted under s 13 of that Act. After the hearing of the appeal in this case, it came to the Court’s attention that on 15 September 2014 such an order was made against the applicant.7  However, as this appeal was heard without reference to that order having been made, I put that consideration to one side.  ...

[18] Consistently with the scandalous and baseless allegations made in the statement of claim against the three judges of appeal who decided Markan v Crime and Misconduct Commission, the appellant’s grounds of appeal to this Court otherwise largely comprise of challenges to the validity of the appointment of the primary judge, or  his competence, or whether he acted bona fide in deciding the applications. They too, are baseless. For example, the grounds of appeal include that the primary judge’s conduct “highlights problems with the administration of justice in Queensland” including that “the futile concepts of ‘masters’ and ‘slaves’ are maintained to enable protection of depravity within the legal industry.”

[19] In my view, among the 15 separately stated grounds of appeal, there is not otherwise a single arguable point. Accordingly, the appeal should be dismissed. ...

[21] For the reasons previously outlined, in my view, it is appropriate to make an order that the appellant pay the respondent’s costs of the appeal to be assessed on the indemnity basis. This is an appeal based on groundless contentions which should never have been brought.

Histories

Australian Minister for Justice and New Zealand Minister of Justice have announced signature of a MoU for criminal history checks -

Communities on both sides of the Tasman will benefit following the expansion of a criminal history checking service to vet individuals for employment, training and registration purposes.

Under a new Memorandum of Understanding (MoU), approved New Zealand agencies will be able to make requests, through New Zealand Police, for Australia-wide criminal history checks from CrimTrac. Similarly, approved Australian agencies will be able to request criminal history information from New Zealand Police. ... The MoU finalises commitments made at the Australia-New Zealand joint-Cabinet meeting in February 2014.

The MOU builds on a trial between Queensland and New Zealand to exchange criminal history information for vetting purposes and expands the new arrangements to all eligible agencies in New Zealand and all Australian States and Territories.

“This service will help eligible agencies in both countries make informed decisions about an individual’s suitability for employment, registration and training,” Mr Keenan said.

“This provides an important tool for protecting the community from people who may pose a risk.” “Criminal history exchange forms part of a wider programme of work on reciprocal information sharing to support better border control and law enforcement. It is important we have the proper processes in place to support increasing numbers of people travelling between our countries,” Mr Adams said.

The MoU contains provisions to protect individuals’ privacy, such as ensuring measures are put in place to protect personal information from unauthorised disclosure, alteration or access.

Information will be exchanged in accordance with domestic legislative requirements including New Zealand’s ‘clean slate’ laws and Australia’s ‘spent convictions’ legislation.

As with existing criminal record checking arrangements, approved agencies will only be able to check someone’s criminal history if they have the informed consent of the individual involved.

Defamation

'The Cost of Losing The Code: Historical Protection of Public Debate in Australian Defamation Law' [PDF] by Andrew Kenyon and Sophie Walker in [2014] 38(2) MULR 554 comments

Defamation law in some Australian jurisdictions formerly provided strong protection for media publication on matters of public interest. In particular, the qualified protection defence in the Queensland defamation Code, introduced in the late 19th century, protected robust political debate. This article explores the common law origins of the Code defence, before considering its adoption elsewhere in Australia and its strength in operation. Notable judgments emphasised the defence’s protection of widely published and forthright political speech. New South Wales removed the Code defence in the 1970s without any intention to weaken such protection. Soon afterwards, the defence was excluded from operation in Western Australia by what has been called a drafter’s foible. The litigation involved speech as political as could be imagined, but that context was not addressed by courts. More recently, Australia’s uniform defamation laws ended the Code defence as an express element in the doctrine. Understanding the history of its introduction, operation and loss suggests defamation law could offer a stronger defence for public speech. Indeed, the history may suggest the uniform laws’ statutory privilege defence warrants a far stronger interpretation. Losing the Code has had underappreciated costs to public speech; understanding the history suggests ways in which they could be addressed.

They state that

Defamation law is said to protect publications on matters of public interest through a range of defences. Under Australia’s uniform defamation laws,  there are defences, for example, related to a publication’s truth, the speaker’s honest opinion, and fair reports of proceedings such as parliamentary debates or court hearings. Instances of public interest speech can be protected by one or more of these defences, but the technical complexities of the law can make them less available than initially apparent. For example, the availability of truth and opinion defences in Australian law became markedly limited in comparison to the English position due to the imputation-based approach that developed in New South Wales under the Defamation Act 1974 (NSW). This required truth and comment defences to meet precisely the plaintiff ’s imputation. The effect was to increase the power of plaintiff lawyers to shape disputes through careful pleading. Defence arguments about truth or opinion that could well succeed under English law could not even be advanced in Australia due to this approach. Important aspects of the approach have continued under the uniform laws despite those laws formally ending the imputation-based approach to the cause of action. All this makes Australian law notably more favourable to plaintiffs, at least where those plaintiffs have the necessary resources to sue.

None of the defences concerning truth, opinion or fair reports are particularly well suited to accommodating ordinary public debate. Such debate includes more than material capable of being proven true in court. Nor is debate necessarily polite and carefully measured. This is well recognised elsewhere in Australian law in relation to political speech. For example, in Coleman v Power it was noted that, while some may desire political debate to contain less superficiality, less invective, more logic and more persuasion, ‘insult and emotion’ are central to ‘the struggle of ideas’. Law ‘does not protect only the whispered civilities of intellectual discourse’. This approach was endorsed more recently in Monis v The Queen: Political debate and discourse is not, and cannot be, free from passion. It is not, and cannot be, free from appeals to the emotions as well as to reason. It is not, and cannot be, free from insult and invective. Giving and taking offence are inevitable consequences of political debate and discourse. Although in Monis v The Queen the protection of reputation was noted as a legitimate constitutional end, the robust qualities of debate endorsed there and in Coleman v Power remain striking when compared with much of current defamation law.

The defences of truth, opinion and fair report privilege offer limited protection to public debate, particularly when compared with some forms of qualified privilege defence under the Codes. This article does not seek to establish that stronger protection is necessarily warranted, although much existing literature suggests that it is needed, and our own work — doctrinal and empirical, individual and joint, across a wide range of jurisdictions — would support greater protection of public interest speech. In addition, the law in some comparable jurisdictions, notably England and Wales, has undergone successive reform to strengthen qualified privilege-style defences. The ‘Reynolds defence’ in England, while recognised as having weaknesses in practice, was markedly more effective at protecting some forms of public interest speech than Australian law whether using Lange v Australian Broadcasting Corporation (‘Lange’), the statutory defence under s 22 of the Defamation Act 1974 (NSW), or s 30 of the uniform Defamation Acts. The principles from Lange, for example, appear to have provided ‘a barely usable defence’. Even though English law was already more effective in this aspect of protecting public speech, concerns with the weakness of the English approach have recently seen the Reynolds defence replaced by a statutory defence for publication on matters of public interest. Rather than consider these points more closely, here we examine the stronger protection that has existed historically within Australia, ask how it has been lost and consider what that suggests for possible reform.

Considerable protection for public debate existed under past defamation Codes in Australia. Queensland gained a defamation Code late in the 19th century. The model provided by the Defamation Act 1889 (Qld) in Queensland was quickly adopted in Tasmania. It was also adopted in New South Wales under the Defamation Act 1958 (NSW) until being replaced by the Defamation Act 1974 (NSW). A similar Code was enacted in Western Australia, but only some of its defences were held to apply to civil defamation actions. The term ‘Code’ is used here in accordance with the case law and literature although the various pieces of legislation were not all strictly codes, with certain aspects of common law defamation continuing to operate. One of the more interesting aspects of the Code was the form of qualified privilege it provided. Called a qualified ‘protection’ rather than ‘privilege’, it is identified here simply as the Code defence by way of shorthand. It is not clear that the value of the Code defence was widely recognised, and its demise is an ironic loss to the protection of public speech under the uniform Defamation Acts. The uniform laws, which have generally been seen as strengthening free speech, have at the same time undermined one strong protection for speech by removing the Code defence.

Part II examines common law qualified privilege before the Code’s creation. Broader aspects of the common law defence were supported in the Code’s enactment, as summarised in Part III. The Code’s operation is outlined in Part IV, especially the way in which it offered strong protection for media publications. The replacement of the Code in New South Wales and the judicial exclusion of the Code defence from civil actions in Western Australia are considered in Parts V and VI. It is striking that the New South Wales changes were not made to reduce, in any substantial sense, the protection offered by the Code defence. Indeed, the replacement statutory provision in s 22 of the Defamation Act 1974 (NSW) was intended to offer largely equivalent protection to the Code defence. Equally striking, in the Western Australian context, the formal legal question addressed in the central Full Court and High Court decisions completely obscured the political quality of the speech in question. The publication in issue involved the type of speech that the High Court had recently said was of central importance for protection by the Code defence. Understanding the history underlying the Code defence’s introduction, operation and loss could suggest that the current statutory defence under the uniform defamation laws warrants a far stronger interpretation which would bring it into line with most aspects of the Code defence. It appears that losing the Code has had underappreciated costs, and the history of the defence suggests ways in which they could be addressed.

The authors conclude

In a 1965 presentation, Justice Walsh observed of the New South Wales Code: ‘What concerns the practising lawyer is the law which is now in force’. While true for the practitioners being addressed then, it is also valuable for practitioners, and all the more so for academic understanding, to recognise how the law differs from comparable and historical situations. In the case of the Code defence, it is important to see what has been lost and the haphazard way in which that occurred. It may not simplify matters too much to describe the history in these terms.

In 1889, Queensland set out a statutory version of qualified privilege. The Code defence incorporated robust ideas about protecting public speech. The ideas were seen at the time of enactment as substantially reflecting the common law. Subsequently, a more restrictive approach became orthodox at common law and, for almost all of the 20th century, defamatory media publications could rarely succeed in a general qualified privilege defence. Over the same period, it became clear that the Code defence could protect robust defamatory speech in mass media publications. Strong judicial statements were made in support of the Code defence, especially in cases of political speech and other speech of public importance. The Code defence offered more protection than was available under s 22 of the Defamation Act 1974 (NSW), as judicially interpreted, and under the High Court decision in Lange. Griffith’s statements that the Code largely replicated the common law are ironic in retrospect because the Code defence ended up providing far stronger protection than the common law did in 2005 when the uniform laws were enacted. The Code defence could protect much robust public debate, probably more than any other aspect of Australian defamation law.

Beyond the Code defence’s enactment and aspects of its operation, its removal is equally notable. In New South Wales, the defence was replaced through legislative reform without any aim of weakening the defence. Indeed, s 22 of the Defamation Act 1974 (NSW) was meant to replicate much of the Code defence and even strengthen its protection for public speech. Judicial interpretation meant the section failed to meet those aims. In Western Australia, the Code defence was ruled inapplicable in civil defamation actions in Bridge, a dispute centrally involving political speech. A contrary approach was clearly possible (as the dissenting judgments show) and a contrary approach would appear preferable given the speech at issue. Bridge involved just the sort of speech for which the Code defence was championed as ‘an essential of parliamentary democracy’. Finally, with the introduction of uniform defamation laws the Code defence disappeared as an express element of law. Its value to public debate, however, would appear to remain. It is surprising how little debate arose about the removal of the Code defence in Queensland by the uniform defamation laws. The situation was quite different in the early 1990s when attempts to achieve uniformity between some Australian jurisdictions failed. At that time, the Australian Capital Territory, New South Wales, Queensland and Victoria prepared Defamation Bills. All four jurisdictions would have provided a defence for ‘publication in the public interest, in good faith and after appropriate inquiries’. The way in which the new defence would have required a ‘responsible approach’ to be taken by the media was explained at some length in Queensland parliamentary debates. However, the Defamation Bill 1992 (Qld) — unlike the other jurisdictions — also contained the Code defence. On that point, it was simply noted that the defence had ‘worked well in Queensland for many years’ and would continue. If those reforms had been passed, the Code defence would have survived in Queensland and offered the possibility of repeated reminders of its value.

The situation was different with the uniform laws. Then, Queensland parliamentary debates did not engage in any detail with how the cl 30 qualified privilege defence under the Defamation Bill 2005 (Qld) compared with the  Code defence. It was merely noted that the new defence and common law privilege ‘replace[] the current Queensland statutory defence which sets out eight specific circumstances, based on the common law but wider, where qualified privilege applies’. The personnel involved were different than in the early 1990s and there was greater political pressure towards uniformity in 2005. But other matters in the 2005 reforms — such as whether justification would require proving public interest or public benefit as well as substantial truth, and whether corporations would be able to sue — were subject to vigorous debate.

In addition, the removal of the Code defence should not be seen as a continuation of its New South Wales history. Instead, that history offers one of the key lessons about the defence. Much of the strong protection offered by the Code defence could still be found now through more robust interpretation of s 30 under the uniform laws. It is not the terms of the defence so much as the judicial application of it that has undermined such statutory qualified privilege defences in Australia. The New South Wales experience with s 22 of the Defamation Act 1974 (NSW) did not reflect the aims held for it by the preceding Commission report; nor did it reflect parliamentary debates when the legislation was enacted. The experience with s 22 has, however, influenced s 30 of the uniform laws. A better reference point for s 30 than the restrictive rules in Morgan could be Calwell. Calwell shows that widespread publication on a subject of general public interest was protected under the Code defence, with the judgments emphasising the value in that strong protection. Such publication would be protected under the uniform laws if s 30 was traced to its origins. While s 30 may offer more workable judge and jury roles than was sometimes offered by the Code defence, it need not be any weaker in protecting public speech. Section 30 need not be as weak as s 22 was held to be. It is s 22 rather than the Code defence that has a poor connection to the history.

The statutory review of the uniform defamation laws — a review which remains incomplete years after its statutory deadline — might consider reform of s 30. However, even if a review appears, achieving national statutory reform may be practically impossible. This difficulty only adds to the value there would be in case law considering more carefully just what should be required under the existing s 30. In that task, the Code defence should not be forgotten. If free speech is to be given meaningful weight in Australian law, aspects of defamation law might well be thought to warrant development. One of the obvious ways in which that could happen is through a stronger privilege defence. Important sources for such a development lie in the lessons of the Code defence. It offered strong protection for public interest speech; it provided defamation law with ‘an essential of parliamentary democracy’. The lessons of its history need not be lost. (Windeyer J).