ACT Youth Mental Health Inquiry

The Youth Mental Health in the ACT report by the ACT Legislative Assembly's Standing Committee on Education, Employment and Youth Affairs released today addresses

 the state of youth (under 25 years of age) mental health and operation of youth mental health services across the ACT, with particular reference to:

i. hearing the voices of the ACT community, including young people and their families, young people from culturally and linguistically diverse (CALD) backgrounds and Aboriginal and Torres Strait Islander (ATSI) communities, young people living with disability, young people with lived experience of mental health and addiction challenges, young people affected by suicide and people involved in preventing and responding to mental health and addiction challenges; 

ii. ACT’s current approach to prevention and early intervention strategies and services for youth mental health and addiction, and what needs to change; 

iii. reviewing the work being undertaken in ACT schools to identify students at risk and early intervention strategies available to address such concerns; 

iv. the availability of professional mental health services for students and their families at school and out of hours, including weekends and school holidays; 

v. reviewing data published by Mission Australia, the Black Dog Institute and other organisations on youth mental health statistics in the ACT, as well as relevant experiences and learnings from other jurisdictions; 

vi. reviewing data relating to family-based prevention and early intervention, including the impacts of screen time on children's mental health, family separation/divorce and family lifestyle; 

vii. reporting on how the ACT Government is preventing mental health and addiction challenges and responding to the needs of young people with those challenges; and viii. family based prevention and early intervention strategies, community confidence in the youth mental health system and better outcomes for ATSI, CALD youth, youth living with disability as well as other groups of youth that have disproportionally poorer outcomes. 

The focus was on: 

i. mental health challenges and needs of young people in the ACT across the full spectrum from mental distress to enduring psychiatric illness; 

ii. ready access to mental health support and services by young people; 

iii. identifying roles and responsibilities of the family unit in supporting youth facing mental health and addiction challenges, and supporting families in carrying out these roles and responsibilities; 

iv. prevention and early intervention of mental health and addiction strategies; 

v. identifying and responding to young people with mental health and addiction challenges; vi. youth suicide prevention and support for those close to someone who has taken their own life; 

vii. range of services available in ACT schools including counsellors, pastoral care workers, psychologists and other mental health professionals both in schools and within the Directorate; 

viii. the extent and availability of mental health first aid training for teachers and learning assistants.

The Committee's recommendations are  

1  The Committee recommends the ACT Government provide mental healt h training to teachers and principals so that they can recognise signs of mental health issues in students such as depression and anxiety and know what action to take. 

2 The Committee recommends that the ACT Government recruit more school psychologists. 

3  The Committee recommends that the ACT Government recruit more youth workers in schools. 

4 The Committee recommends that the ACT Government reinstate access to the National School Chaplaincy Program for ACT government schools. 

5 The Committee recommends the ACT Government improve privacy for students accessing counselling services at schools. 

6 The Committee recommends the ACT Government implement digital mental health screening/check-ups in schools to reduce depression, anxiety and suicide risk. 

7 The Committee recommends the ACT Government amend eligibility for Learning Support Units so that meeting ACT Student Disability Criteria be considered suitable to enter or access the services of a school’s Learning Support Unit. 

8   The Committee recommends the ACT Government provide students with access to mental health support services at any time and ensure after-hours options are communicated to students at school. 

9   The Committee recommends the ACT Government also provide access to school-based mental health resources and expertise to non-government schools, where there is a demonstrated need. 

10   The Committee recommends that the ACT Government consult with the Galilee School on the support they need as they work with young people’s mental health issues. 

11 The Committee recommends that the ACT Government quantify the private expenditure that ACT residents are spending on mental health services and identify the mental health treatment pathways being pursued by Canberra residents and report back to the Assembly by mid-2021. 

12   The Committee recommends that the ACT Government address gaps in mental health service provision between different age brackets. 

13   The Committee recommends that the ACT Government address gaps in mental health service provision between different genders. 

14   The Committee recommends the ACT Government provide ongoing professional development to mental health professionals. 

15   The Committee recommends that CAMHS, and CYPS where relevant, always encourage young people who leave the STEPS program to return to the program in future. 

16   The Committee recommends that the ACT Government conduct a formal evaluation of the PACER program with a view to making it a permanent service with expanded coverage and times. 

17   The Committee recommends the ACT Government prioritise making more mental health treatments, of the kind young people are currently required to travel interstate to access, available in Canberra. 

18  The Committee recommends that the ACT Government provide financial support, and promote the availability of this support, to families who are required to travel interstate for their children’s mental health treatments. 

19   The Committee recommends that the ACT Government publish the timeline for completion of theAdolescent Mental Health Unit at the Centenary Hospital for Women and Children by the last sitting day of the 9th Assembly. 

20   The Committee recommends the ACT Government fund and implement the elements of the Model of Care for the Adolescent Mental Health Unit and Day Service (parts of the day program and the expanded Adolescent Mobile Outreach Service) which can commence prior to the building’s completion. 

21   The Committee recommends the ACT Government provide more counselling services to address the gap between headspace requirements for treatment and other facilities such as CAMHS so that young patients are adequately supported. 

22   The Committee recommends that the ACT Government expand the eligible age range for the planned Adolescent Mental Health Unit and CAMHS to 25 years of age. 

23   The Committee recommends that the ACT Government work with higher education providers to ensure there is suitable provision of mental health services on campus. 

24   The Committee recommends that every patient under 25 years of age be given a care plan and an immediate case manager to help them recover when discharged from a mental health unit. The plan should also be communicatedto carers. 

25   The Committee recommends the ACT Government develop a plan to train and recruit more female youth mental health professionals in the ACT. 

26   The Committee recommends the ACT Government assess the current mental health workforce and ensure it reflects the diversity of Canberra’s population. 

27   The Committee recommends the ACT Government investigate funding and making available trained psychologists for intermittent non-going one-off psychologist visits for individuals whilst they are waiting for an opening for a long-term ongoing psychologist. 

28   The Committee recommends the ACT Government provide more support, education and access to critical mental health information for registered young carers. 

29   The Committee recommends that the ACT Government conduct an evaluation with a view to making the Safe and Connected Youth trial a permanent service. 

30   The Committee recommends that the ACT Government give more consideration of parents/carers in relevant legislation such that at milestones of 16/18years of age, parents are not removed from care planning. 

31   The Committee recommends that the ACT Government review the application process for legal guardianship so that parents and carers can assist in obtaining appropriate treatments for young people with mental health challenges. 

32   The Committee recommends that the ACT Government ensure that, where appropriate and with the young person’s consent, information is shared between mental health services accessed by young detainees and Bimberi staff to enable Bimberi staff to best support the young person. 

33   The Committee recommends that the ACT Government provide youth-centric mental health support services at the Alexander Maconochie Centre. 

34   The Committee recommends that the ACT Government allow carers to be informed about suicide attempts and mental health care plans, if the relevant young person consents, at the beginning of justice system entry. 

 35   The Committee recommends that the ACT Government improve mental health and wellbeing services for Bimberi and AMC (young detainees) by providing external vocational education and training based on the detainees’ interests. 

36   The Committee recommends that every detainee under 25 years of age who has presented with mental health challenges be given a care plan and an immediate casemanager to help them recover when discharged from Bimberi, AMC or Dhulwa. The plan should also be communicated to carers. 

37   The Committee recommends that the ACT Government provide caseworkers who assist young people transitioning out of a detention setting with Mental Health First Aid training to ensure the young people are supported in an appropriate manner. 

38   The Committee recommends that the ACT Government provide mental health support, especially for those under 25 involved with the justice system to divert young people from custodial harm. 

39   The Committee recommends that the ACT Government fund more accessible and free counselling and mentor services for young people aged 12-25 years. 

40   The Committee recommends that the ACT Government trial more automated e-health services and report back on outcomes by mid-2021. 

41   The Committee recommends that the ACT Government investigate implementing evidence-based CBT (cognitive behavioural therapy) online programs. 

42   The Committee recommends that the ACT Government should as a matter of urgency bring online the central navigation portal for youth mental health services. 

43   The Committee recommends that the ACT Government expand drug rehabilitation services in the ACT. 

44   The Committee recommends that the ACT Government expand evidence-based residential rehabilitation programs for young people struggling with addictionin the ACT. 

45   The Committee recommends that the ACT Government pursue young people’s use and possession of drugs in a coordinated and holistic manner. 

46   The Committee recommends that the ACT Government consider further criminal justice diversion for young drug users by investigating the appropriateness of a simple drug offence notice for some drugs. 

47 The Committee recommends that the ACT Government quantify the prevalence of eating disorders in the ACT and the treatment pathways beingpursued by Canberra residents and report back to the Assembly by mid-2021. 

48   The Committee recommends that the ACT Government provide an update on the 2018 Position Statement on Eating Disorders by the last sitting day of the 9th Assembly. 

49   The Committee recommends that the ACT Government provide further eating disorder support services in the ACT, prioritising services on the northside. 

50   The Committee recommends the ACT Government expedite the construction of an inpatient eating disorder clinic. 

51  The Committee recommends that CAHMS expand its work to include and/or further cater to autistic youth. 

52   The Committee recommends that the mental health sector and Child and Youth Protection Services need better training, knowledge and understanding about autistic youth. 

53   The Committee recommends that the ACT Government assess whether existing mental health services are appropriate for young Canberrans living with a disability. 

54   The Committee recommends that the ACT Children and Young People Death Review Committee reviews should include reporting for people aged up to 25 years. 

55   The Committee recommends the ACT Government consider how to address the broader root causes and compounding factors of youth mental illness. 

56   The Committee recommends that the ACT Government support the holistic needs of the ACT’s youngest and most vulnerable children (first 1,000 days) to prevent the effects of trauma and disadvantage from detrimentally affecting the development of foundational life skills, including support for their social and emotional wellbeing. 

57   The Committee recommends that the ACT Government identify and respond to the holistic needs of young parents in disadvantaged communities, particularly parents in the child protection system or at risk of contact with the children protection system, including through providing life skills, housing, employment, transport, trauma and mental health. 

58   TheCommittee recommends that accessing youth mental health residential services in the ACT should not be dependent on nominating an address. 

59   The Committee recommends that the ACT Government fund evidence-based employment support programs for young people with mental illness. 

60   The Committee recommends that the ACT Government acknowledge the diversity of needs in provision of mental health services for young people and ensure services are co-designed by young people, including ATSI young people, CALD young people (including international students), LGBTIQ+ young people and young people living with disabilities. 

61   The Committee recommends that the ACT Government take a whole family approach to supporting children and young people at risk of poor mental health or showing symptoms of mental illness. 

62   The Committee recommends that the ACT Government promote accessible and flexible evidence-based parenting support programs to parents and integrate these into whole-of-school approaches to mental health and wellbeing. 

63   The Committee recommends that the ACT Government integrate wellbeing into the curriculum through evidence-based mental health programs and e-mental health, including cognitive behavioural therapy, that help students cope with stress and boost self-esteem, increasing mental health literacy and preventing bullying. 

64   The Committee recommends that the ACT Government expand mental health awareness and education programs in ACT government schools. 

65   The Committee recommends that the ACT Government makes Mental Health First Aid training available for young people and their parents/carers. 

66   The Committee recommends that the ACT Government roll-out the mental health promotion program which is found to be most effective for 8-12 year olds as a matter of urgency, including to non-government schools.

Elections, Speech and Interference

The Crime and Corruption Amendment Bill 2020 (Qld), introduced today*, seeks to establish an offence regarding allegations of corrupt conduct against a councillor or candidate during a local government election period. The intention is to amend the Crime and Corruption Act 2001 (Qld) to implement recommendations by the Crime and Corruption Commission (CCC) relating to the publicising of allegations and complaints. 

The Commission's 2016 Publicising allegations of corrupt conduct: Is it in the Public Interest? report  recommended that the government consider making it an offence for any person to publicise: a) allegations of corrupt conduct against a councillor or candidate during a local government election period; or b) the fact that a complaint (whether or not it involves corrupt conduct) has been, will be or may be made to the CCC against a councillor or candidate during a local government election period without first notifying the CCC and allowing the CCC at least three months to  determine whether the allegations have merit. 

The Electoral Act 1992 (Qld) s 185 currently provides (1) A person must not, during the election period for an election, print, publish, distribute or broadcast anything that is intended or likely to mislead an elector in relation to the way of voting at the election and (2) A person must not for the purpose of affecting the election of a candidate, knowingly publish a false statement of fact regarding the personal character or conduct of the candidate.

 The CCC commented

Publicising untested allegations involving public sector organisations and officials can also unfairly damage the public’s trust in their institutions of government. The institution of local government, and by extension democratic government, is being damaged by the high number of baseless allegations

The Commission indicated that

a large number of allegations received by the CCC in the lead up to local government elections are baseless and merely designed to effect electoral damage on political opponents, with  confidence in [the CCC] undermined when it is required to deal with allegations that, on their face, appear to have reputational damage as their goal and attempt to leverage the involvement of the CCC to achieve this

The CCC also stated that given its prioritisation of the assessment of politically sensitive matters in the public interest, it is also of concern that significant assessment resources are directed to baseless matters and diverted from other potentially more important matters.  Further the tendency for allegations of corruption engaged in by councillors to be publicised in the media means that corrupt individuals get advance warning that they are being scrutinised by the CCC and can destroy or fabricate evidence. It noted the impacts of digital and new media, arguing that the risk of damaging an individual’s reputation arising from the publication of a baseless allegation was ‘amplified in contemporary society where mass communication methods mean that allegations are instantaneously and widely transmitted, and stay on the public  record in perpetuity’. 

The Bill will accordingly amend the CC Act to make it an offence to publish: 

• a corrupt conduct allegation about a candidate for a State election during the election period for the election; and 
•  a corrupt conduct allegation about a candidate for a local government election during the election period for the election. 

The offences will carry a maximum penalty of 50 penalty units or six months imprisonment. The amendments in the Bill also provide for a related statutory injunction power. 

The Explanatory Statement notes that the Bill includes a definition of corrupt conduct allegation which addresses both complaints and allegations of corrupt conduct consistent with the CCC’s 2016 report. Corrupt conduct is defined in section 15 of the CC Act.  The definition of ‘publish’ under the Bill is intended to target publication that has the potential to deliver information to a mass audience. The definition covers newspaper, radio or television or other electronic or printed forms of mass media. 

The Statement comments that it is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social 

 The definition of ‘candidate’ under the Bill is intended to include those people who nominate to be a candidate under relevant electoral legislation, incumbent Members of the Legislative Assembly and councillors and those people who otherwise announce or publicly indicate an intention to be a candidate.  Where a person has made or notified a complaint to the CCC or notified the CCC of the intention to publish an allegation, and three months have passed, the offences do not apply. This reflects the recommendation in the CCC’s 2016 report that it should be an offence for any person to publicise an allegation or the fact of a complaint without first notifying the CCC and allowing the CCC at least three months to determine whether the allegations have merit. 

The Statement comments

Since the High Court decision in Lange v Australian Broadcasting Commission [1997] 189 CLR 520 there has been the implied right to communication about government or political matters in the Commonwealth Constitution. However, the implied freedom is not absolute. It is noted that freedom of speech issues were considered in the CCC’s 2016 report.

The 2016 report 

notes that the key arguments put forward by those in favour of publicising allegations of corrupt conduct (including most media groups) were that:

• • the public has a democratic ‘right to know’; 

• open discourse informs opinions and supports democratic participation; 

• it provides a ‘check and balance’ on the CCC’s performance; 

• it provides greater scrutiny of the process of investigating allegations (seen as particularly important in the context of the practice of devolving complaints to agencies complained about to investigate themselves); 

• it will bring others forward to report their concerns (e.g. media attention that led to the Fitzgerald Commission of Inquiry); and 

• it is reasonable that elected officials and candidates should be subjected to greater accountability and scrutiny than ordinary individuals.

The key arguments put forward by those against publicising allegations of corrupt conduct (including the Queensland Law Society, Local Government Association of Queensland, local governments, and the Queensland Council for Civil Liberties) were that:

• it risks longstanding reputational damage for individuals, noting digital media can be far more widespread and does not disappear from the public record; 

• it risks reputational damage for agencies and organisations, not just individuals; 

• it undermines investigation processes by alerting the subject of allegations and other parties involved who can then destroy evidence or concoct false versions of events; 

• limits investigative options, particularly covert strategies; 

• encourages baseless allegations to be made for political gain; and • may have a prejudicial effect that erodes the possibility of a fair trial.

...  While no other Australian jurisdiction has a specific offence relating to publicising allegations of corrupt conduct during an election period, section 56 of the South Australian Independent Commissioner Against Corruption Act 2012 (ICAC Act) makes it an offence for a person to publish, without the authority of the Commission or a court hearing proceedings for an offence against the ICAC Act, any information relating to a complaint, report, assessment, investigation or report under the ICAC Act, where the information published might enable certain people associated with the complaint etc (including the subject) to be identified. The concept of ‘publish’ under section 56 includes publication by newspaper, radio or television as well as the ‘internet or other electronic means of creating and sharing content with the public or participating in social networking with the public’.

The Bill is as follows 

Clause 1 provides that, when enacted, the Bill will be cited as the Crime and Corruption Amendment Act 2020 (the Act). 

Clause 2 states that the Act amends the Crime and Corruption Act 2001 (CC Act). 

Clause 3 inserts a new section 216B (Unlawfully publishing corrupt conduct allegations during election periods) after existing section 216A. 

Subsection (1) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a State election during the election period for the election. 

Subsection (2) in new section 216B makes it an offence for a person to publish a corrupt conduct allegation about a candidate for a local government election during the election period for the election. Each offence carries a maximum penalty of 50 penalty units or 6 months imprisonment. 

Subsection (3) provides that liability under subsections (1) and (2) does not apply if the publication of the corrupt conduct allegation occurs at least three months after: (a) the complaint was made or notified to the commission (for a corrupt conduct allegation identifying a relevant complaint); or (b) the commission was notified of the person’s intention to publish the allegation. 

Subsection (4) provides that subsections (3)(a) and (b) apply whether the notification or complaint was made before or after commencement of the Act. 

Subsection (5) provides that new section 216B does not limit another provision of the CC Act or another law that restricts the publication of a corrupt conduct allegation. 

Subsection (6) provides definitions for the following terms for new section 216B: ‘candidate’; ‘corrupt conduct allegation’; ‘election period’; ‘local government election’; ‘publish’; ‘relevant complaint’; and ‘State election’. 

‘Candidate’, for either a State or local government election, is defined as a person who holds an office to be contested in the election, or a person who has publicly indicated their intention to be a candidate for the election, or a person who has nominated to be a candidate under an Act applying to the election (including for example the Electoral Act 1992). 

‘Corrupt conduct allegation’ is defined as a statement that indicates that a relevant complaint has been, or is proposed to be, made or notified to the commission (paragraphs (a) and (c)), or a statement that identifies the subject matter of a complaint made or notified to the commission (paragraph (b)), or a statement that alleges a person is, may be, or has been involved in corrupt conduct (paragraph (d)). 

The definition of ‘relevant complaint’ means a complaint about a person that involves, or may involve, corrupt conduct of the person. Corrupt conduct is defined under existing section 15 of the CC Act. 

The definition of ‘election period’ refers to the relevant periods under the Electoral Act 1992 and the Local Government Electoral Act 2011. 

The definition of ‘local government election’ refers to the Local Government Electoral Act 2011, 

The definition of ‘publish’ means publicly disclosing a corrupt conduct allegation or causing a corrupt conduct allegation to be publicly disclosed, by using either newspaper, radio or television or other electronic or printed media for communicating to the public or participating in social networking with the public. It is not intended the offence would prevent people from accessing legal advice or discussing their views in ordinary social discourse. 

‘State election’ is defined as an election of a member or members of the Legislative Assembly. 

Clause 4 amends the heading of existing section 344 (Injunctions) to insert, after ‘Injunctions’, the words ‘for contraventions of s 212’ consequential to the amendments in clause 5. 

Clause 5 inserts a new sections 344A to 344C after existing section 344. 

New section 344A (Applications for injunctions for contraventions of s 216B) creates a new statutory right to apply for an injunction. 

Subsection (1) provides for the circumstances in which the statutory right for an injunction under new section 344A will be available. An injunction may be applied for where a person has engaged, is engaging or is proposing to engage in conduct that constitutes or would constitute an offence of unlawfully publishing corrupt conduct allegations during an election period under new section 216B. In order to apply for an injunction the CCC, or candidate, must have reasonable grounds to believe that an injunction would mitigate any adverse effect on the CCC or the candidate to whom the conduct relates. 

Subsection (2) provides that an injunction is available to the CCC or a candidate during the election period to which the conduct for the offence relates. It also provides that the application for the injunction may be made to the District Court. 

Subsection (3) outlines the types of injunctions the District Court may grant, namely an injunction to stop the person from engaging in the conduct that constitutes or would constitute an offence under section 216B, or to require the person to do anything else that the court considers desirable. 

Subsection (4) allows the District Court to grant an interim injunction until the application is finally decided. 

Subsection (5) confirms that the powers to make an injunction under new section 344A do not limit any other powers of the District Court. 

Subsection (6) provides that where the CCC applies for an injunction the court need not require any undertaking from the CCC as to damages or costs. 

New section 344B (Injunctions if s 216B proceeding started) provides a Magistrates Court with the power to grant an injunction in circumstances where offence proceedings under section 216B have started in the Magistrates Court. 

Subsection (1) provides that in order for the section to apply the proceedings for the 216B offence must have started in the election period to which the proceeding relates. 

Subsection (2) allows the magistrate to constitute the court to consider whether an injunction should be made. 

Subsection (3) provides that the magistrate may grant an injunction to stop the person from engaging in the conduct to which the section 216B proceedings relate or to require the person to do anything else which the court considers is desirable. 

Subsection (4) provides that the magistrate may act on the magistrate’s own initiative to grant the injunction or on application by the prosecution. 

Subsection (5) indicates the circumstance in which subsection (6) will apply, namely where a section 344A injunction proceeding has started in the District Court; and the proceeding relates to the same conduct to which the section 216B proceeding relates. 

Subsection (6) provides that the District Court may transfer any existing proceeding in relation to an application for an injunction made under section 344A to the Magistrate Court. 

Subsection (7) provides that if the District Court orders the transfer of injunction proceedings under subsection (6), the registrar of the District Court must send to the clerk of the relevant Magistrates Court a copy of the order and any record of the hearing of the section 344A injunction proceeding. 

Subsection (8) defines the terms ‘section 216B offence proceeding’ and ‘section 344A injunction proceeding’ for the purpose of new section 344B. 

New Section 344C (Hearing and deciding s 344A or 344B injunctions) sets out procedural matters applying to injunctions under new sections 344A or 344B.

* The Government's ducks weren't lined up in a row, as within 24 hours following introduction of the Bill the Attorney-General issued the following media release -

Statement from the Attorney-General 

Published Today at 09:21 AM 

Attorney-General and Minister for Justice The Honourable Yvette D'Ath 

The government respects the recommendations of the CCC. 

However, given the limited time for the parliamentary Legal Affairs Committee to consider the law changes the CCC seeks, the CCC Bill introduced yesterday in State Parliament is withdrawn.

Statutory Interpretation

Edelman J in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 addresses 'The duty of courts in the exercise of statutory interpretation', stating 

The duty of courts is to give effect to the meaning of statutory words as intended by Parliament. In common with how all speech acts are understood, the meaning is that which a reasonable person would understand to have been intended by the words used in their context. One presumption, or inference based on common experience of legislative acts, is that when Parliament uses words with a common or ordinary meaning then the words are intended to bear that ordinary meaning. That presumption also reflects the expressed goal of parliamentary drafting for clarity and familiarity in order to ensure the transparency and intelligibility of statute law. That presumption can be further reinforced by another presumption, that words repeated in a statute are used with the same meaning.  

 

Nevertheless, even when Parliament does not provide a specific definition of particular statutory words there are instances where Parliament will be understood not to have intended that those undefined statutory words should bear their ordinary meaning. For instance, the more that the ordinary meaning of the words would impair common law rights, and the more fundamental are those rights, the less likely it is that the words will be understood to have been intended to bear their ordinary meaning and the more unusual the meaning of the words that can be countenanced as having been intended. More unusual meanings of words can also be countenanced in a range of more common circumstances, and will be likely to be so countenanced where several of these circumstances exist in combination: where the ordinary meaning of the words is contrary to the scheme of the legislation; where the ordinary meaning of the words runs contrary to the legislative history; and where the ordinary meaning of the words is inconsistent with the expressed understanding of the legislative operation in extrinsic materials. None of these matters of context has any greater a priori weight than any other. 

 

Consistently with this approach, courts have sometimes interpreted statutory words in a manner contrary to their ordinary meaning in order to give effect to parliamentary intention. For instance, the Privy Council, dismissing an appeal from this Court, held that the word "arrangement" in the former s 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) does not bear the ordinary meaning of an initial plan but includes "all the transactions by which [the plan] is carried into effect". This Court held that the word "interview" in former s 570D of the Criminal Code (WA) does not bear the ordinary meaning of a formal or structured meeting but means "any conversation between a member of the Police Force and a suspect", including an informal conversation initiated by the suspect. And this Court held that the words "otherwise mutilates" in s 45(1)(a) of the Crimes Act 1900 (NSW) do not bear the ordinary meaning of injury or damage that is more than superficial112 but instead have an open-textured meaning of engaging, otherwise, in the undefined practice of female genital mutilation. 

 

The ultimate question in every case is the meaning of the words, in all their context, as they were intended by Parliament. Of course, the prolific references by courts to parliamentary intention are not to a subjective intention of any or all of the members of Parliament. Rather, they are shorthand to describe the same general approach that people take to the understanding of language. Words of a statute are not a secret code for lawyers. They are enacted to be read and understood by reasonable, informed people using their everyday tools of language. This involves considering what was intended by the speaker, here the construct of Parliament. Consideration of a speaker's intention requires the speaker's purpose and the context of the spoken words to be considered at the same time as their "ordinary meaning". So too with the interpretation of words enacted by a Parliament. Ordinary meaning, and usage of words in the legislation with consistent meaning, are therefore only two indicia, albeit usually very powerful indicia, of the intention of the Parliament

Adverse Possession

In Hardy v Sidoti [2020] NSWSC 1057 Kunc J states

These proceedings concern two very Australian phenomena: the “dunny” and dedication to home improvement. At issue is the ownership of a 3.35 square metre remnant of a “dunny lane” in Redfern, a suburb of historic significance for First Australians and in the development of Sydney as a city. 

 

At the end of the 19th century, Redfern suffered from typhoid epidemics “directly attributable to the lack of drainage, airless tenements, and the use of the cesspit system”.  Today, according to one writer, the suburb “has succumbed to a tsunami of smashed avocado and man buns”. Whatever the truth of that latter statement, those parts of Redfern which feature exquisitely renovated terrace houses are now highly prized Sydney real estate. The vestigial remains of “dunny lanes” are a reminder of a less sanitary past. 

 

The plaintiff, Mr Hardy, lives in a terrace house in Baptist Street, Redfern (the “Hardy Property”). The Hardy Property runs east-west, with its backyard garden at the western end, facing Dalley Lane. ... 

 

The second and third defendants (the “defendants”) bought a terrace house in Boronia Street, Redfern (the “Sidoti Property”). The two streets form a right angle. The second defendant, Mr Sidoti, is a builder experienced in renovating inner city properties. The Sidoti Property runs north-south, with its backyard at the northern end. ... 

 

The backyard of the Sidoti Property abuts the Hardy Property (the two properties taken in isolation forming a T shape). The rear of the Sidoti Property is burdened by a right of way. The right of way runs east-west along the length of the Hardy Property from Baptist Street in the west to Dalley Lane in the east. It burdens the rear of the seven north-south lots on Boronia Street (including the Sidoti Property) which abut the southern side of the Hardy Property. The right of way is the “dunny lane” which was created when those lots were originally subdivided and developed at the end of the nineteenth century to enable the nightsoil carter or “dunny man” to collect waste from the brick outhouses at the rear of the Boronia Street properties. 

 

These proceedings are about so much of the right of way as passes over the rear of the Sidoti Property adjoining the Hardy Property. According to a survey plan attached to the Second Amended Summons, it is approximately 88cm wide (close enough to 1 yard in Imperial measurement) and 3.81 metres long (making a total of 3.35 square metres of land). At the hearing, this strip of land was referred to as the “Yellow Land” because it was marked in that colour on the survey plan (and is shown as such on the Schematic). Mr Hardy and his then partner bought the Hardy Property in January 1998 by old system conveyance. A limited title under the Real Property Act 1900 (NSW) (the “Act”) for the Hardy Property was issued by the Registrar General in August 1998. At that time, what is now the Sidoti Property (and referred to as such on the Schematic) had been owned by the Theodorou family for 40 years. 

 

By January 1998, the Yellow Land was no longer used or usable as a right of way. It had been blocked off at various points, including at the western end of the Yellow Land. It was enclosed by an old paling fence on the northern side which ran along the southern, east-west boundary of the Hardy Property. On the southern side (i.e. 88cm into the Sidoti Property) it was enclosed by an old, corrugated iron fence which was itself in line with the rear of the old brick outhouse on the Sidoti Property. There were gates in each fence, providing access to the Yellow Land from both the Hardy Property and the Sidoti Property. 

 

Like his predecessor in title to the Hardy Property, Mr Hardy initially used the enclosed Yellow Land for what he accepted could be described as a “garden tool storage area”, storing gardening tools and related items at the western end. However, in May 2002, Mr Hardy took down the old paling fence dividing his backyard from the Yellow Land and an adjoining part of the right of way to the east over land still owned by the Theodorou family (referred to at the hearing and on the Schematic as the “Green Land”). From 2003 to early 2005, Mr Hardy and his then partner proceeded to make improvements to the backyard in a Japanese style extending it into the Yellow Land and the Green Land. By reason of that and other conduct, Mr Hardy’s case is that he has acquired the legal title to the Yellow Land by adverse possession. 

 

In September 2005, the Registrar General converted the Sidoti Property to limited title. 

 

The defendants purchased the Sidoti Property from the Theodorou family in April 2018. The Yellow Land was included on the title as part of the Sidoti Property. As part of the renovation of the Sidoti Property, the defendants demolished the brick outhouse and the old corrugated iron fence which stood on the southern side of the Yellow Land, built a new fence on the northern boundary of the Yellow Land (where the old paling fence had been, and thereby purporting to reclaim the Yellow Land from Mr Hardy) and built a barbeque area on the Yellow Land to form the rear of the backyard of the Sidoti Property. 

 

The Court’s conclusions may be summarised as: 

 

The Sidoti Property is land under the Act. 

 

Possessory title to land under the Act can generally only be acquired in accordance with the provisions of Part 6A of the Act. If the Act applies in this case, Mr Hardy’s case must fail as against the defendants. 

 

The Act does not apply because Mr Hardy’s adverse possession of the Yellow Land commenced by no earlier than either May 2002 (with the removal of the old paling fence as the commencement of the extension and landscaping of Mr Hardy’s backyard garden) or no later than January 2005 (by which time landscaping was well advanced including laying a weed mat covering the whole area including the Yellow Land and the Green Land and putting granite pavers and some mondo grass on the Yellow Land), and was extant as such when the Sidoti Property was brought under the Act in September 2005. By reason of ss 28U(2) and 45C(2) of the Act, the Act does not prevent Mr Hardy’s acquisition of a possessory title by adverse possession of the Yellow Land at common law. 

 

Pursuant to s 27(2) of the Limitation Act 1969 (NSW) (the “LA”), the relevant limitation period for an action by the Theodorou family as then documentary title holders to recover the Yellow Land land had expired no later than January 2017. At that time their title to the Yellow Land was extinguished (s 65(1) of the LA). It follows that the defendants did not acquire title to the Yellow Land when they purchased the Sidoti Property in April 2018. 

 

Mr Hardy has therefore acquired possessory title at common law to the Yellow Land. He is entitled to orders to recognise that ownership, including that the defendants cease to trespass upon the Yellow Land, and by removing structures they have erected on it and relocating the fence they have built.

Critical Infrastructure

Just in case you had not heard the news, "The Government’s commitment to the continued prosperity of our economy and businesses is unwavering". 

It would be disquieting if we saw an official statement that the commitment was wavering or absent.

The ongoing commitment is highlighted in the Department of Home Affairs consultation paper on Protecting Critical Infrastructure and Systems of National Significance. It reflects the much-criticised Australia’s Cyber Security Strategy 2020 announced earlier this month. 

Unsurprisingly, the paper is attracting attention as muddled; less generous readers question whether criticisms will be taken on board, given the Department's history of consultation theatre and the Government's egregious disregard of university financial problems. 

The Department states 

The Australian Government is committed to protecting the essential services all Australians rely on by uplifting the security and resilience of critical infrastructure. 

 

Critical infrastructure is increasingly interconnected and interdependent, delivering efficiencies and economic benefits to operations. However, connectivity without proper safeguards creates vulnerabilities that can deliberately or inadvertently cause disruption that could result in cascading consequences across our economy, security and sovereignty. 

 

To ensure we continue to protect ourselves from such incidents, we are seeking your views on the details of Government’s agreed reforms ... a key initiative of Australia’s Cyber Security Strategy 2020. 

The consultation paper comments 

Who should read this paper? 

 

All Australians rely on critical infrastructure to deliver essential services that are crucial to our way of life, such as electricity, communications, transport and banking. As such, we encourage all Australians to take an active interest in ensuring that Australia’s approach to protecting critical infrastructure is fit for purpose for the modern age. 

 

From a critical infrastructure perspective, we are especially keen to hear from the following sectors, given their fundamental importance to our economy, security and sovereignty:

• Banking and finance 

• Communications 

• Data and the Cloud 

• Defence industry 

• Education, research and innovation 

• Energy 

• Food and grocery 

• Health 

• Space 

• Transport 

• Water. 

 Overview 

 

The Australian Government is committed to protecting the essential services all Australians rely on by uplifting the security and resilience of critical infrastructure. Critical infrastructure is increasingly interconnected and interdependent, delivering efficiencies and economic benefits to operations. However, connectivity without proper safeguards creates vulnerabilities that can deliberately or inadvertently cause disruption that could result in cascading consequences across our economy, security and sovereignty. 

 

A range of hazards have the potential to significantly compromise the supply of essential services across Australia; physical, personnel and cyber security are all increasingly interrelated. Recent incidents such as compromises of the Australian parliamentary network, university networks and key corporate entities, natural disasters and the impacts of COVID-19 illustrate that threats to the operation of Australia’s critical infrastructure entities continue to be significant. 

 

We must work together now to ensure Australia’s security practices, policies and laws bolster the security and resilience of our critical infrastructure and position us to act in any future emergency. We need a better shared understanding of the threats we face and how we can combat them. Together, owners and operators of critical infrastructure, academia and all levels of government must collectively take steps to protect Australians from an attack and other disruptions. 

 

Accordingly, Government will introduce an enhanced regulatory framework, building on existing requirements under the Security of Critical Infrastructure Act 2018 (the Act). This will include:

• a positive security obligation for critical infrastructure entities, supported by sector-specific requirements; 

• enhanced cyber security obligations for those entities most important to the nation; and 

• Government assistance to entities in response to significant cyber attacks on Australian systems. 

 These changes will be underpinned by enhancements to Government’s existing education, communication and engagement activities, under a refreshed Critical Infrastructure Resilience Strategy. This will include a range of activities that will improve our collective understanding of risk within and across sectors. The Government’s commitment to the continued prosperity of our economy and businesses is unwavering. The impacts of recent events only reinforce the need for collaboration between and across critical infrastructure sectors and Government to protect our economy, security and sovereignty. 

 

At the same time, Government recognises the additional economic challenges facing many sectors and entities in the wake of the COVID-19 pandemic. The outcome we seek is clear - we want to work in partnership to develop proportionate requirements that strike a balance between uplifting security, and ensuring businesses remain viable and services remain sustainable, accessible and affordable. An uplift in security and resilience across critical infrastructure sectors will mean that all businesses will benefit from strengthened protections to the networks, systems and services we all depend on. 

 

We want to hear from you – owners and operators of critical infrastructure, state and territory governments, academia and the Australian public – to contribute to the design of this framework to deliver a real and meaningful uplift to critical infrastructure security and resilience, while minimising economic impact. 

 

Where we are now 

 

The interconnected nature of our critical infrastructure means that compromise in one essential function can have a domino effect that degrades or disrupts others. 

 

The consequences of a prolonged and widespread failure in the energy sector, for example, could be catastrophic to our economy, security and sovereignty, as well as the Australian way of life, causing: 

• shortages or destruction of essential medical supplies; 

• instability in the supply of food and groceries; 

• impacts to water supply and sanitation; 

• impacts to telecommunications networks that are dependent on electricity; 

• the inability of Australians to communicate easily with family and loved ones; 

• disruptions to transport, traffic management systems and fuel; 

• reduced services or shutdown of the banking, finance and retail sectors; and 

• the inability for businesses and governments to function.  

At its most extreme, such catastrophic disruption could cause loss of life. Recent events, particularly COVID-19, have demonstrated how threats can have flow on effects across multiple sectors. A deliberate cyber attack could have farther-reaching, more rapid and less visible causes and effects. 

 

While Australia has not suffered a catastrophic attack on critical infrastructure, we are not immune: • Over the last two years, we have seen several cyber attacks in Australia that have targeted the Federal Parliamentary Network, airports and universities. • Malicious actors have taken advantage of the pressures COVID-19 has put on the health sector by launching cyber attacks on health organisations and medical research facilities. • Key supply chain businesses transporting groceries and medical supplies have also been targeted. 

 

While the Australian Government and industry continually work on responses to incidents impacting our critical infrastructure, there is scope to be more proactive and take preparatory activities to understand, mitigate and prevent threats. A cohesive partnership between the Government and industry, especially through sharing of technical expertise, is a desirable end state. Collective action now will place Australia in the best position to combat both foreseeable and emerging risks. The enhanced framework will meet this need, supported by proportionate sector- specific standards. 

 

What you have told us 

 

The Department of Home Affairs values its ongoing engagement with critical infrastructure entities. Mechanisms like the Trusted Information Sharing Network for Critical Infrastructure Resilience (TISN) are important forums for cross sector dialogue, facilitating ongoing feedback on the security environment facing us all. As outlined in the Cyber Security Strategy 2020, through consultation the Australian Government: • met with more than 1,400 people from across the country in face-to-face consultations, including workshops, roundtables and bilateral meetings; and • received 215 submissions in response to the Discussion Paper. 

 

Government heard that Australia’s critical systems are facing a worsening threat environment and the nation needs to address vulnerabilities in supply chain security, control systems and operational technology. This is consistent with advice from the national intelligence community and other sources. Timely and actionable information sharing was identified as a critical gap. We heard that Government’s role in addressing these threats and gaps should start by: • driving an uplift in resilience across sectors through regulation; • clarifying roles, responsibilities and expectations; and • using its unique capabilities to address serious cyber threats to Australia. 

 

We heard that Government also needs to explain how security risks are managed, how responsibilities are shared across the economy, and how Government and critical infrastructure entities can work together to protect Australia’s critical infrastructure from sophisticated threats. Consultations highlighted that the Australian public looks to both Government and critical infrastructure to secure the delivery of essential services. We need to collaborate and prepare ahead of time, so everyone knows what their role is and what they need to do in an emergency. To do this, Government and critical infrastructure entities need the right processes, authorisations and powers in place to respond rapidly and decisively. 

 

The framework set out in this Consultation Paper is put forward as a starting proposition to position all levels of government – Commonwealth, state, territory and local – and critical infrastructure to identify levels of entity criticality, appropriately minimise the likelihood and impact of significant incidents occurring, and to respond where necessary in the national interest. 

 

Where we need to be – an enhanced critical infrastructure framework 

 

Objective of the enhanced framework 

 

The primary objective of the proposed enhanced framework is to protect Australia’s critical infrastructure from all hazards, including the dynamic and potentially catastrophic cascading threats enabled by cyber attacks. The enhanced framework outlines a need for an uplift in security and resilience in all critical infrastructure sectors, combined with better identification and sharing of threats in order to make Australia’s critical infrastructure – whether industry or government owned and operated – more resilient and secure. This approach will prioritise acting ahead of an incident wherever possible. However, we recognise that one size does not fit all. We need to balance consistent objectives that provide a baseline of cyber, physical, personnel and supply chain protections across all sectors, with the reality that there are sector specific differences in human and financial resources, technology, threats, existing standards and maturity, to name a few. 

 

This is why the framework is proposed to be built around principles-based obligations that will sit in legislation, and underpinned by sector-specific guidance and advice, proportionate to the risks and circumstances faced by each sector. Furthermore, legislative requirements will remain proportionate and collaborative, while avoiding inconsistent application of regulations putting entities at a commercial disadvantage. To ensure these security outcomes, we recognise that uplift is required in all critical infrastructure sectors and that Government must be an exemplar. Accordingly, we will continue to work towards enhanced security for government and democratic institutions, and will work within the Commonwealth and with states and territories to identify the most appropriate mechanisms to ensure governments are held to the same standards as owners and operators of critical infrastructure. 

 

To respond to Australia’s evolving threat environment, we need to build a partnership that benefits all critical infrastructure, as well as the Australian public. It is not enough for owners and operators to uplift their resilience. Government should use its unique position and resources to share aggregated threat information, work with critical infrastructure entities of all levels of maturity to build their capability, and empower entities to appropriately protect themselves when faced with a serious threat. 

 

Features of the enhanced framework 

 

Government has agreed that the proposed enhanced framework will apply to an expanded set of critical infrastructure sectors, comprising of three key elements: 

 

1. Positive Security Obligation, including: a. set and enforced baseline protections against all hazards for critical infrastructure and systems, implemented through sector-specific standards proportionate to risk. 

 

2. Enhanced cyber security obligations that establish: a. the ability for Government to request information to contribute to a near real-time national threat picture; b. owner and operator participation in preparatory activities with Government; and c. the co-development of a scenario based ‘playbook’ that sets out response arrangements. 

 

3. Government assistance for entities that are the target or victim of a cyber attack, through the establishment of a Government capability and authorities to disrupt and respond to threats in an emergency.

These three initiatives will be underpinned by an enhanced Government-industry partnership across all hazards that, among other measures, will focus on:

• reinvigorating and expanding existing engagement platforms and strategies; 

• improving coordination across government to provide appropriately classified whole-of- government threat assessments and briefings to entities; 

• co-designing best practice guidance with critical infrastructure entities, state, territory and Australian Government partners and regulators, as well as international partners; and 

• delivering a comprehensive, multi-year program of workshops, exercises, information sharing sessions and assessments to complement and inform sector and sub-sector based assessments.

We recognise that there will be a regulatory impost in delivering these reforms. We will work with critical infrastructure entities to ensure that these reforms are developed and implemented in a manner that secures appropriate outcomes without imposing unnecessary or disproportionate regulatory burden, in accordance with guidance from the Department of the Prime Minister and Cabinet’s Office of Best Practice Regulation. ... 

 

Principles-based outcomes 

 

We want to work with critical infrastructure entities to clearly define the high level, sector- agnostic principles that will form the basis for the PSO. We consider that at a minimum, owners and operators of critical infrastructure should be legally obliged to manage risks that may impact business continuity and Australia’s economy, security and sovereignty, by meeting the following PSO principles-based outcomes. 

 

1. Identify and understand risks 

 

Entities will have a responsibility to take an all-hazards approach when identifying and understanding risks. This will consider both natural and human induced hazards. This may include understanding how these risks might accumulate throughout the supply chain, understanding the way systems are interacting, and outlining which of these risks may have a significant consequence to core service provision. 

 

2. Mitigate risks to prevent incidents 

 

Entities will be required to have appropriate risk mitigations in place to manage identified risks applicable to their sector. Risk mitigation should consider both proactive risk management as well as having processes in place: to detect and respond to threats as they are being realised; and plan for disasters and have a way to lessen the negative impact were it to actually occur. The regulated entity will be responsible for engaging with the regulator to ensure that identified risks and proposed mitigations are proportionate to the risks, while also considering the business, societal and economic impacts. 

 

3. Minimise the impact of realised incidents 

 

Entities will be required to have robust procedures in place to recover as quickly as possible in the event a threat has been realised. This may include ensuring plans are in place for a variety of incidents, such as having back-ups of key systems, adequate stock on hand (such as medicines), redundancies for key inputs, out-of-hours processes and procedures, and the ability to communicate with affected customers. 

 

4. Effective governance 

 

Entities will be required to have appropriate risk management oversight and responsibilities in place, including evaluation and testing. This will involve strong governance with clear lines of accountability, demonstrated comprehensive planning, and a robust assurance and review process in place that is proportionate to the identified risks. Compliance will be assessed by the relevant regulator noting that what is appropriate may be unique to each entity. Regulators will focus on outcomes and seek to avoid compliance burden. 

 

Security Obligations 

 

We consider that the new framework should clearly set out in legislation the high-level security obligations that critical infrastructure entities should meet. At a minimum, we consider these to be: 

 

Physical security 

 

Critical infrastructure entities will be required to protect their systems and networks by considering and mitigating natural, and human induced threats. This may include:

• Implementing proportionate physical security measures that lessen the risk of harm to people, information and physical asset resources being made unlawfully inoperable or inaccessible, or being accessed, used or removed without appropriate authorisation. 

• Integrating protective security into the process of planning, selecting, designing and modifying facilities for the protection of people, information and physical assets. 

• Securing physical spaces where sensitive information and assets are used, transmitted, stored or discussed. 

Cyber security 

 

Critical infrastructure entities will protect their systems and information from cyber threats. This may include:

• Identifying and assessing sensitive information and implementing proportionate controls. 

• Understanding access to an entity’s sensitive information, with need to know principles applied. 

• Endeavouring to safeguard information from common and emerging cyber threats and adhering to best practice guidelines. 

• Implementing robust security measures during all stages of ICT systems development. 

• Aiming to ensure systems and personnel can detect, understand and respond to cyber security incidents.  

Personnel security 

 

Critical infrastructure entities will implement policies and procedures which seek to mitigate the risk of employees (insider threats) exploiting their legitimate access to an organisation’s assets for unauthorised purposes. This may include:

• Ensuring only suitable employees and contractors access the entity’s resources and are aware of, and meet, appropriate standards of conduct. 

• Assessing and managing the ongoing suitability of its personnel to access resources throughout their engagement. 

• Promoting a positive and collaborative security culture of continual improvement and engagement across sectors, ensuring lessons learnt are shared. 

Supply chain security 

 

Critical infrastructure entities will protect their operations by understanding supply chain risk. Supply chains can be compromised or disrupted from a variety of natural or man-made activities.