Deathmarks and ADR

The Commonwealth Attorney-General's Department has released a set of documents regarding the Philip Morris Asia challenge to the Tobacco Plain Packaging Act 2011 (Cth) that received Royal Assent and became law in Australia on 1 December 2011. As noted in previous posts in this blog, the Act restricts use of tobacco company trade marks in retail packaging of tobacco products but does not extinguish the trade marks ... in essence the Marlboro Man and other signifiers can still ride, just not very freely.

Philip Morris Asia is challenging the Australian regime, which the Government has justified on public health grounds and as consistent with international health obligations under the WHO Framework Convention on Tobacco Control. The challenge is based on what Philip Morris argues is a breach of the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. That bilateral agreement features scope for dispute resolution by an international tribunal, with arbitration being conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

Just before Christmas the Government provided its Response to Philip Morris Asia’s Notice of Arbitration. The Government states that -

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings.

The A-G's website accordingly features a copy of the Australia - Hong Kong Bilateral Investment Treaty [PDF], the Philip Morris Asia Limited Notice of Claim [PDF] and November 2011 Notice of Arbitration [PDF], and the Australian Response to the Notice of Arbitration [PDF].

The latter states that -

PM Asia is incorporated in Hong Kong and asserts that the plain packaging measure impacts on investments that PM Asia owns or controls in Australia, namely its shares in Philip Morris Australia Limited (“PM Australia”), the shares that are held by PM Australia in Philip Morris Limited (“PML”), and the intellectual property and goodwill of PML. PM Asia acquired its shareholding in PM Australia (and hence a purported indirect interest in the shares and assets of PML) only on 23 February 2011.

This recent acquisition was made by PM Asia against the backdrop of:

a) the Australian Government’s long-standing regulation and control of the manufacture and sale of tobacco in Australia, and its ratification of the World Health Organization (“WHO”) Framework Convention on Tobacco Control (“FCTC”);

b) the Australian Government’s establishment of a National Preventative Health Taskforce (“Taskforce”) in April 2008 to consider how to reduce harm from tobacco usage, which led to the Taskforce considering the impacts of packaging on tobacco usage, engaging in a consultation exercise in which PML participated and, ultimately, recommending in June 2009 that the Australian Government mandate the sale of cigarettes in plain packaging and increase the required size of graphic health warnings;

c) the Australian Government’s announcement, on 29 April 2010, of its decision to implement plain packaging and to mandate updated and larger graphic health warnings for all tobacco products; and

d) continuing objections or public complaints on the part of PM Australia, PML and also Philip Morris International Inc. (the ultimate holding company for the Philip Morris group) – in the course of the remainder of 2010 and early 2011 – to the effect that the plain packaging legislation would breach Australia’s international trade and treaty obligations.

Thus, PM Asia acquired its shares in PM Australia on 23 February 2011, both in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections to the plain packaging legislation, whereas such objections had not been accepted by the Australian Government.

It continues -

Against this backdrop, PM Asia’s claims under the BIT inevitably fail, both as to jurisdiction and the merits:

a) Article 10 of the BIT does not confer jurisdiction on an arbitral tribunal to determine pre-existing disputes that have been re-packaged as BIT claims many months after the relevant governmental measure has been announced.

b) The plain packaging legislation cannot be regarded as a breach of any of the substantive protections under the BIT. PM Asia made a decision to acquire shares in PM Australia in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging. An investor cannot make out a claim for breach of (say) the fair and equitable treatment standard or of expropriation in circumstances where (i) a host State has announced that it is going to take certain regulatory measures in protection of public health, (ii) the prospective investor – fully advised of the relevant facts – then acquires some form of an interest in the object of the regulatory measures, and (iii) the host State then acts in the way it has said it is going to act.

The Government offers a number of preliminary observations before contesting specific claims by Philip Morris. Those observations are -

First, the Australian Government is implementing plain packaging to protect the public health of Australia’s population from an addictive and dangerous substance that causes widespread death and disease in Australia (and around the world). The protection of public health is an objective of fundamental importance to all Governments, and the WHO and the FCTC Secretariat have indicated their strong support for plain packaging as an effective public health measure.

Secondly, the Australian Government’s plain packaging initiatives are based on a broad range of studies and reports, and supported by leading Australian and international public health experts. The evidence demonstrates that use of logos, symbols, designs, colours and other forms of advertising on tobacco packaging increases attractiveness to consumers, can mislead consumers into thinking some tobacco products are safer than others, and also decreases the prominence and effectiveness of health warnings. Tobacco advertising can be particularly effective on young people, the age group most likely to become addicted to smoking.

Thirdly, in so far as PM Asia contends that plain packaging measures will lead to a decline in cigarette prices (and hence increased consumption) and to an increase of market participation in illicit tobacco products (cf Notice of Arbitration, para. 6.3), those contentions are not accepted. Further, even if correct, the Australian Government has power to implement a range of measures, including further increases to the rate of excise, to ensure that cigarette prices do not fall to a level which would lead to an increase in consumption. In addition, the Australian Government will continue to vigorously enforce its laws against illicit trade in tobacco.

Fourthly, plain packaging is not an alternative to other tobacco control measures but is an integral part of the comprehensive suite of measures adopted by Australia to respond to the public health problems caused by tobacco. These measures ... are based on the comprehensive tobacco control strategy recommended by the Taskforce in 2009. The implementation of this wide-ranging set of measures will be critical to achieving significant reductions in smoking rates in Australia.

Fifthly, PM Asia claims at various junctures in its Notice of Arbitration that plain packaging eliminates branding. PML will however retain the ability to place brand names, including any variant, on tobacco packaging. Plain packaging does not prevent product differentiation or identification of a product’s place of origin on its packaging (cf. Notice of Arbitration, para. 1.4).

What the plain packaging measure in fact restricts is the ability of tobacco companies to advertise their products by packaging them with attractive branding and other designs. This is the real substance of PM Asia’s concern. By preventing such advertising on retail tobacco packaging, as one of the principal remaining means for PML and other tobacco companies to advertise tobacco, the Australian Government intends that plain packaging will contribute to efforts to reduce smoking rates in Australia.

In contesting the tobacco giant's claim of expropriation the Government states that -

The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.

PM Asia has not in fact been deprived of the purported investments it made on 23 February 2011; nor has PM Asia been subjected to measures having equivalent effect.

Further, plain packaging measures are non-discriminatory regulatory actions of general application designed and adopted by the Australian Government to achieve the most fundamental public welfare objective – the protection of public health. Such measures do not amount to expropriation, are not equivalent to expropriation, and do not give rise to a duty of compensation.

After arguing that there has been no discriminatory action, the Government requests the arbitral tribunal -

a) to declare that it has no jurisdiction over PM Asia’s claims, or that they are inadmissible;
b) alternatively, to dismiss PM Asia’s claims in their entirety; and
c) to order that PM Asia bear the costs of the arbitration, including Australia’s costs of legal representation and assistance, pursuant to Article 42 of the UNCITRAL Arbitration Rules.

In essence, it is arguable that PM Asia - knowing that restrictions on packaging were in the pipeline - acquired the Australian interests in order to take action under the BIT and with an awareness that the value of interests would be eroded by the restrictions. The tribunal might be unimpressed by PM Asia's claim for compensation regarding assets with a value that was presumably going to be reduced by “billions of Australian dollars”. Article 6 of the BIT specifies that compensation reflects “the real value of the investment immediately before the deprivation or before the impending deprivation became public knowledge whichever is the earlier”. Given that PM Asia acquired the interests after the impending deprivation became public knowledge (and arguably with the intention to thwart the restrictions) it would appear to have no interest at the relevant time.

Consequences?

A reader has kindly pointed me to 'Sydney women turn to US dads for sperm donation' by Rosie Squires in the [Sydney] Sunday Telegraph, highlighting consequences - intended or otherwise - of post-2009 restrictions on anonymity for sperm donors.

Squires claims that -

Sydney women are importing sperm from the US because Australian men are too scared to donate.

Local donations to IVF clinics have all but stopped since it became easier for children to track down their biological fathers.

IVF Australia head Professor Michael Chapman told The Sunday Telegraph that donor shortages had become critical, falling from 100 to 10 at his clinic in the past four years.

"Last year we only had two or three donors on our books," Professor Chapman said. "Today around Australia there are about 50 donors, but the demand is still substantially higher than that."

As a result, IVF Australia started importing sperm from the US two months ago.

Professor Chapman said donor imports were "not ideal" but would help reduce waiting times for insemination.

In January last year a law came into effect stating that all sperm donors must agree to provide identifying information so that the child would be able to contact them once they reached 18.

Fertility specialist Professor Peter Illingworth said the change in the law was directly linked to the drop-off in sperm donors.

"There is no doubt that when the law was first introduced, it affected the number of men willing to donate sperm. It is a big undertaking. Being a donor is very serious and the fact is, not many men are willing to do it," he said.

Illingworth's clinic has reportedly 'been careful in its choice of an offshore sperm bank' -

"We have for a long time been looking for a way to improve sperm donor numbers in Australia.

"We have now found an agency in the US whose donors have given consent to provide identity to the child after they turn 18," he said.

Professor Illingworth said sperm donors would also stick to strict NSW regulations stipulating that each donor could only supply four families with sperm.

Professor Chapman said Australian clinics needed more local donors because importing sperm was "not ideal".

"There is still that issue that, despite their undertakings, an overseas donor perhaps is less likely to be tracked in the future," he said.

The article claims that in the 12 months to September 2011 some 194 babies were born in NSW through sperm donations, consistent with figures in the Senate committee report highlighted last year.

In April 2010 the Telegraph claimed that -

A critical shortage of donor sperm has forced the state's largest IVF clinic to launch an online advertising campaign targeting male generosity.

Tougher restrictions on imported sperm has shrunk already scarce supplies while new legislation, which gives children the right to know the identity of their donor father, has seen a big decline in donor numbers.

Fertility experts said there were less than 10 registered sperm donors left in NSW, forcing many of the state's 24 IVF clinics to close the books on couples keen to conceive by donor insemination.

In NSW the Assisted Reproductive Technology Act 2007 (NSW) and the Assisted Reproductive Technology Regulation 2009, in effect from 1 January 2010, establish a central ART donor register.

The Register features information about gamete donors and children born as a result of ART treatment using donated gametes (sperm and ova), with individuals conceived using donated gametes (once they turn 18), their legal parents and donors being able to access certain information.

The Register contains -

• the donor’s full name
• the donor’s residential address
• the donor’s date and place of birth
• the donor’s ethnicity and physical characteristics
• any medical history or genetic test results of the donor or the donor's family that are relevant to the future health of -

• a person undergoing ART treatment involving the use of the donated gamete
• any offspring born as a result of that treatment
• any descendents of any such offspring

• the name of each ART provider that has previously obtained a donated gamete from the donor and the date on which the gamete was obtained
• the sex and year of birth of any offspring of the donor.

The Register also includes the following information about a child born as a result of ART treatment using donated gametes -

• the donor conceived child’s full name, sex and date of birth
• the name of the woman who gave birth to the child
• the full name and date and place of birth of the donor of the gamete.

Not all of that data is currently publicly available. Adults who were donor conceived after the legislation came into effect (ie who reach adulthood after 2017) will have mandatory access to -

• the donor's full name
• the donor's residential address
• the donor's date and place of birth
• the donor's ethnicity and physical characteristics
• any medical history or genetic test results (prior to donation) of the donor or the donor's family that are relevant to the future health of -

• a person undergoing ART treatment involving use of the donated gamete, or
• any offspring born as a result of that treatment, or
• any descendent of any such offspring

• the name of the ART provider that provided the above information, and
• the sex and year of birth of each other offspring of the donor.

There is no requirement on donors to keep their information current.

Some people of course were donor-conceived prior to the legislation. Mandatory access to the Register does not operate retrospectively. For donors whose donated sperm, eggs or embryos were used prior to 1 January 2010 access to some/all information will be dependent on them -

• voluntarily adding their details to the Register and
• consenting to having their information released.

Against Digital Transcendentalism

As a corrective to some of the more fatuous writing about 'revolution by twitter' and cyberliberation 'Recording Everything: Digital Storage as an Enabler of Authoritarian Governments' (Brookings Institution Paper 2011) by John Villasenor argues [PDF] that -

Within the next few years an important threshold will be crossed: For the first time ever, it will become technologically and financially feasible for authoritarian governments to record nearly everything that is said or done within their borders – every phone conversation, electronic message, social media interaction, the movements of nearly every person and vehicle, and video from every street corner. Governments with a history of using all of the tools at their disposal to track and monitor their citizens will undoubtedly make full use of this capability once it becomes available.

The Arab Spring of 2011, which saw regimes toppled by protesters organized via Twitter and Facebook, was heralded in much of the world as signifying a new era in which information technology alters the balance of power in favor of the repressed. However, within the world’s many remaining authoritarian regimes it was undoubtedly viewed very differently. For those governments, the Arab Spring likely underscored the perils of failing to exercise sufficient control of digital communications and highlighted the need to redouble their efforts to increase the monitoring of their citizenry.

Technology trends are making such monitoring easier to perform. While the domestic surveillance programs of countries including Syria, Iran, China, Burma, and Libya under Gadhafi have been extensively reported, the evolving role of digital storage in facilitating truly pervasive surveillance is less widely recognized. Plummeting digital storage costs will soon make it possible for authoritarian regimes to not only monitor known dissidents, but to also store the complete set of digital data associated with everyone within their borders. These enormous databases of captured information will create what amounts to a surveillance time machine, enabling state security services to retroactively eavesdrop on people in the months and years before they were designated as surveillance targets. This will fundamentally change the dynamics of dissent, insurgency and revolution.

The coming era of ubiquitous surveillance in authoritarian countries has important consequences for American foreign policy as well, impacting issues as diverse as human rights, trade, nuclear nonproliferation, export control, and intellectual property security.

Villasenor comments that -

In 2008, social scientist Mohammed Ibrahrine published a paper titled “Mobile Communication and Sociopolitical Change in the Arab World” that highlighted the important role of mobile phones in “empowering and mobilizing marginalized groups” and “increasing the range of alternative actions available to individuals, opposition forces, and civil society groups.” It was an early observation of the now widely recognized power of mobile communications to organize dissent.

However, some aspects of the ability of information technology to shift the balance of power away from repressive regimes and in favor of their opponents are temporary. When, as has been the case, the flood of electronic information is too voluminous for authoritarian governments to capture, store, and effectively analyze in its entirety, the information advantage can indeed lie with regime opponents. It is an advantage that has recently been exploited to varying degrees of success in Tunisia, Iran, Syria, Egypt, Libya, and elsewhere.

But the ability to record everything will tilt the playing field back in favor of repressive governments by laying the foundation for a plethora of new approaches to targeting dissent. When all of the telephone calls in an entire country can be captured and provided to voice recognition software programmed to extract key phrases, and when video footage from public spaces can be correlated in real time to the conversations, text messages, and social media traffic associated with the people occupying those spaces, the arsenal of responses available to a regime facing dissent will expand. Some changes will be immediate and tactical. Instead of implementing broad social media or Internet shutdowns in response to unrest,44 governments in possession of complete communications databases will be able to conduct more selective censorship or alteration of message traffic during periods of instability. This will provide a greater capability to shape or quell dissent.

Pervasive monitoring will provide what amounts to a time machine allowing authoritarian governments to perform retrospective surveillance. For example, if an anti-regime demonstrator previously unknown to security services is arrested, it will be possible to go back in time to scrutinize the demonstrator’s phone conversations, automobile travels, and the people he or she met in the months and even years leading up to the arrest.

There are also longer-term consequences that include a thinning in the ranks of regime opponents. By definition, organized dissent requires that dissenters have the ability to exchange information. Prominent opponents of repressive governments have learned to expect tracking of their movements and interception of their phone calls and other forms of electronic communications. But when technology enables an entire country’s worth of communications to be intercepted, the circle of people whom dissidents will be able to recruit to their ranks will narrow.

In addition, knowledge that communications are archived will reduce the willingness of dissidents to speak frankly even over encrypted communications. Time will often favor an authoritarian government able to store intercepted data that is initially too securely encrypted to decode. Due to some combination of advances in code-breaking, computing capabilities or intentional or unintentional compromise of decryption keys, many encrypted messages will become decodable by state security services. Awareness of the likelihood that all messages – including those that are encrypted – will eventually be read by security services will chill dissent.

He concludes that -

Declining storage costs will soon make it practical for authoritarian governments to create permanent digital archives of the data gathered from pervasive surveillance systems. In countries where there is no meaningful public debate on privacy, there is no reason to expect governments not to fully exploit the ability to build databases containing every phone conversation, location data for almost every person and vehicle, and video from every public space in an entire country.

This will greatly expand the ability of repressive regimes to perform surveillance of opponents and to anticipate and react to unrest. In addition, the awareness among the populace of pervasive surveillance will reduce the willingness of people to engage in dissent.

The coming era of ubiquitous surveillance in authoritarian countries has important implications for American foreign policy. Strategies for engaging with these countries will benefit from specific consideration of the presence, growth and increasing impact of these enormous digital databases. This will impact human rights, trade, export control, intellectual property security, and the operation of multinational businesses with in-country facilities, subsidiaries, or subcontractors.

Finally, the use by authoritarian governments of systems that record everything in the complete absence of privacy considerations will lead to a long list of other unforeseen and generally negative consequences. Unfortunately, the residents of those countries, as well as the rest of us, will soon start to find out just what those consequences are.

Dark Clouds

'Government Cloud Computing and the Policies of Data Sovereignty' by Kristina Irion argues that -

Government cloud services are a new development at the intersection of electronic government and cloud computing which holds the promise of rendering government service delivery more effective and efficient. Cloud services are virtual, dynamic and potentially stateless which has triggered governments’ concern about data sovereignty. This paper explores data sovereignty in relation to government cloud services and how national strategies and international policy evolve. It concludes that for countries data sovereignty presents a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Governments therefore adopt strategies to retain exclusive jurisdiction over government information.

She concludes -

If cloud computing is the next paradigm in computing than governments can not miss this trend and continue to migrate public digital assets to cloud services. Governments find themselves in the dilemma to ensure sovereignty over data residing in the cloud which is virtual, dynamic and potentially stateless. Data sovereignty is an ideal conception of information ownership which compensates for the progressing virtualization of information where digital data is stored and processed remotely. For governments this means:

Government’s control over all virtual public assets, which are not in the public domain, irrespective whether they are stored on own or third parties’ facilities and premises, and which are governed under an effective information assurance framework, including, where appropriate, strategies to retain exclusive jurisdiction over government information.

Countries treat this issue as a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Hence, in applying their national risk management strategy the countries surveyed (US, UK, Australia, and Canada) restrict cloud solutions for sensitive government information (medium- and high-risk) to their territory which contradicts the cloud technology’s global philosophy.

The call for international policy to remedy the complexity of divergent, and at times conflicting, regulations of different countries pertaining to cloud computing can help to establish a viable commercial environment. International standard-setting may, however, not go far enough to provide a solution to governments’ data sovereignty concerns over transborder flows of government data. From a risk-management point of view the territoriality paradigm which favors national cloud services would preempt any international agreement build on mutual trust.

Besides, the concept of data sovereignty offers a proposition how to strengthen the link between the data owner and the all types of data not limited to the protection of personal information. Cloud computing presents a scenario to argue that it is not enough to update and harmonize existing regulation but to take information ownership rights to a new level.

Discrimination law

The NSW Court of Appeal in Sydney Local Health Network v QY and QZ [2011] NSWCA 412 has found that the partner and friend of a man who died with HIV were not discriminated against under the Anti-Discrimination Act 1977 (NSW) because of the way his autopsy was carried out. Mr B died in 2007, apparently by his own hand, with the coroner under the Coroners Act 1980 (NSW) ordering an autopsy by the Department of Forensic Medicine regarding a 'suspicious death'.

In QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 they argued that they experienced discrimination on the basis that forensic pathologists at the Glebe morgue had not provided a service to them (reconstructing Mr B's body) that the morgue would have provided had he not suffered the disability of HIV. They were therefore forced to tell some of Mr B's family of his illness. Mr B is dead and presumably beyond caring about his privacy or the distress of his relatives.

NSW does not reconstruct the dissected cadavers of people known to have HIV. That reconstriction is a matter of the morgue's occupational health & safety rules:

Hepatitis C or HIV positive bodies are not to be reconstructed after autopsy. All family members are informed and asked to view the body before autopsy. After completion of the autopsy, the body is double bagged, the outer bag yellow and to be clearly labelled with 'not reconstructed', then placed in the body storage area.

In the initial finding Mr QZ and Ms QY (the partner and friend) were held to be capable of suffering discrimination as a relative or associate with a disability or associates of people with a protected sexual orientation. the Court of Appeal disagreed, ruling that the B was not a "person" at the time of the alleged discrimination and that they were not "relatives or associates". Young JA

A person is only an associate so long as the relationship continues.

It may be that there is a certain illogicality in confining [the law] to association with living persons. However, the pattern of growth of the Act is that the legislature by degrees amends the act to deal with more and more situations and, as at 2007, it had only progressed this far.

Campbell JA commented -

I have reached the same conclusion as his Honour concerning the fate of the appeal, but on narrower grounds. I am not persuaded that it is only a living person who can be a "person" within the meaning of the Anti-Discrimination Act 1977. However an "associate" of a person within the meaning of the Act must be a person who is living at the time that the discrimination in question is alleged to have occurred. That is a sufficient reason why there has been no contravention of the Act in the present case. ...

There is no reason readily apparent from a reading of the Act why discrimination on the basis of a characteristic of someone who was once a relative or associate, but is no longer a relative or associate at the time of the differential conduct, is not also prohibited. However, that consequence flows from the language of the Act. It may be that Parliament took the view that certain circumstances were unlikely, or occurred too infrequently to warrant legislating against. These circumstances might include:

(1) discrimination on the basis of a characteristic that a deceased associate had;

(2) discrimination on the basis of a characteristic that any other person who was once an associate but is no longer an associate had; and

(3) discrimination on the basis of a characteristic that a former spouse or relation by affinity had.

However it cannot be said that there is any basis in the text of the Act for concluding that that was so.

Protecting living persons against discrimination is not the sole object of the Act. As well, the terms of the Act shows that it has an objective of affecting societal standards by discouraging discrimination and promoting equality. One way in which it does this is by attaching sanctions to discriminatory conduct on the basis of a particular characteristic. This creates an incentive not to engage in such behaviour, which has a tendency to protect all persons with the particular characteristic (whether now alive or not) from future discriminatory behaviour.

The court examined if HIV/AIDS met the definition of disability. It also considered whether the morgue could be said to have provided a "service' to Mr B's friends in terms of the Act. Young JA referred to Jackson, The Law of Cadavers (Prentice Hall Inc, New York, 1936) which quotes Foley v Phelps 37 NYS 471, 474 (1896)-

The right is to possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger ... may choose to turn over to an afflicted relative.

The Court referred to s 52A of the Coroners Act in ruling that a doctor performing the autopsy was not liable for the consequences.

QZ and QY were ordered to pay the costs of the health service representing the morgue.

Privacy Case Notes

The Office of the Australian Information Commissioner (OAIC), the national agency that incorporates the Commonwealth Privacy Commissioner, has released 13 case notes regarding the Privacy Act 1988 (Cth).

Those notes ("intended to offer a synopsis only and not to be a comprehensive account") are -

• S and Telecommunication Company [2011] AICmrCN 13
• R and Credit Reporting Agency [2011] AICmrCN 12
• Q and Financial Institution [2011] AICmrCN 11
• P and Retail Company [2011] AICmrCN 10
• O and Professional Association [2011] AICmrCN 9
• N and Law Firm [2011] AICmrCN 8
• M and Law Firm [2011] AICmrCN 7
• L and Insurer [2011] AICmrCN 6
• K and Finance Company [2011] AICmrCN 5
• J and Commonwealth Agency [2011] AICmrCN 4
• I and Insurance Company [2011] AICmrCN 3
• H and Registered Club [2011] AICmrCN 2
• G and Parking Services Organisation [2011] AICmrCN 1

Highlights are as follows.

In S and Telecommunication Company (re NPP 6.1 and 6.7) the complainant had attempted to access personal information held by a telco, which the person believed included correspondence to a law enforcement agency. The telco relied on its internal privacy policy in its explanation of its decision to deny access, going on to quote exceptions under NPP 6 (ie denial of access to an individual when access would prejudice activities being carried out by, or on behalf of, a law enforcement body) when the complainant pursued the matter.

In R and Credit Reporting Agency (re s 18G(a) of the Act 1988) the complainant became aware the agency had linked the person's consumer credit information file with the credit files of other individuals. The complainant advised the agency that there was no connection to the other individuals. The credit reporting agency refused to remove the links. The Commissioner considered that by linking the complainant's personal information to other individuals the agency had failed to take reasonable steps to ensure the accuracy of information in its records and that the agency had thus not met the requirements of s 18G(a). A conciliation took place.

In Q and Financial Institution (re s 6 and NPP 2.1) the complainant contracted with a buyer to sell his car, which was under finance to a financial institution. The financial institution advised a prospective buyer that the vehicle had been under finance but the account had recently been paid in full. The prospective buyer later obtained a letter from the financial institution confirming receipt of funds to finalise the account; subject to clearance of these funds it would release its security interest in the vehicle in ten working days. In providing this information to the prospective buyer the institution denied disclosing the complainant's personal information, arguing that the letter to the prospective buyer only contained details about the complainant's vehicle and did not mention the complainant's name or account number. The prospective buyer was aware that the complainant owned the car and that the car had been under finance. The fact that the prospective buyer had previous knowledge of these details did not lessen the institution's obligation under NPP 2.1 to only disclose an individual's personal information for the primary purpose of its collection, or for a secondary purpose where it can rely on one of the exceptions at NPP 2.1(a) to NPP 2.1(h). The Commissioner considered that the prospective buyer could have reasonably ascertained that details in the letter related to the complainant's account with the institution; on that basis the letter contained personal information about the complainant, contrary to NPP 2. Conciliation was reflected in the institution's agreement to change its practice, offer an apology and offered a goodwill payment.

In P and Retail Company (re NPP 1.1 and 1.2) the complainant alleged that a retail company recorded outbound calls it made without providing notification of that recording the calls. The complainant objected on the basis that there had been no notification or request for consent. The retailer advised the complainant that there had been notification through its interactive voice response system when the complainant made the first inbound call to the company, claimed as providing awareness and consent. The Commissioner referred to the Telecommunications (Interception and Access) Act 1979 (Cth) - all parties must have actual knowledge that the telephone conversation will be monitored, with notification occurring prior to the activity taking place for both inbound and outbound calls - before indicating that the subsequent calls received by the complainant were a continuation of the original incoming call where notification had been provided. The Commissioner appears to have been unimpressed by the retailer's claim of implied consent. The collection of personal information during such calls was unfair and unlawful, with the retailer failing to comply with NPP 1.2.

In O and Professional Association (re NPP 6.1 and 6.2) the complainant sought access to that person's completed and marked exam paper from a professional association, along with access to the associated documents used to mark and rate performance along with all relevant documentation used in assessment of an application for special consideration. The association (NSW Bar Council?) refused to provide access to most documents, including working papers for marking. The Commissioner considered the exception under NPP 6.2, concluding that access would reveal evaluative information generated in connection with the association's commercially sensitive decision making process and that the association had provided an explanation through its personal analysis letter. The Commissioner declined to investigate the complaint under s 41(1)(a) on the grounds that the association had not interfered with the complainant's privacy.

In N and Law Firm (re NPP 1.2 and 10) the complainant alleged that a law firm improperly collected personal information, including their health information, using covert film surveillance. The law firm was acting for an insurer, with the information being subsequently disclosed during court proceedings. The Commiossioner noted that NPP 10.1(e) allows collection of sensitive information for the establishment, exercise or defence of a legal or equitable claim. In this instance the collection was necessary for the defence of a legal claim; the Commissioner accordingly declined to investigate under s41(1)(a) of the Act.

In M and Law Firm [2011] (re NPP 2) another law firm, acting on behalf of the complainant's former utility provider, commenced debt recovery with the complainant. The complainant subsequently settled the debt and was advised by the utility provider that debt recovery would cease. Oops, prior to receiving advice of the settlement the lawyers sent correspondence to the complainant's neighbour seeking information about the complainant's whereabouts. The branding of the law firm, including on the letter to the neighbour, identified that its legal expertise included debt collection. The complainant complained that the law firm had contacted the neighbour and revealed an outstanding debt. The Commissioner concluded that the correspondence amounted to a disclosure of the complainant's personal information. The complainant would reasonably expect that an organisation would disclose its name, and the complainant's name, to contact a third party in the circumstances, which included the law firm not being able to contact the complainant. Disclosure by the law firm was consistent with NPP 2.1(a); the law firm had not interfered with the complainant's privacy. The Commissioner referred the complainant to the Australian Competition & Consumer Commission to consider whether the debt collection practices were consistent with ACCC debt collection guidelines.

In L and Insurer the Commissioner noted the xemption in s 7B(5) for action under a State contract. The complainant, who had lodged workers compensation claims with two current employers, alleged the insurer disclosed details about a third unrelated compo claim to solicitors handling the claims for the two current employers. The Commissioner considered that, as the appointed claims manager of a state government body, the insurer was a contracted service provider to a state body. Additionally, the insurer had handled the complainant's personal information in relation to the two current workers compensation claims, for the purpose of directly or indirectly meeting its obligations as claims management agent for the state government corporation. The insurer's actions were thus exempt under the Privacy Act.

In contrast, I and Insurance Company (re NPP 3) concerned an insurance company collecting the complainant's personal information from a third party insurance industry database. The complainant was a loss assessor and the insurer was investigating alleged fraud. The complainant's file on the industry database featured multiple enquiry listings about the complainant and inaccurately listed the purpose for those enquiries. The insurer attributed the multiple enquiries to inexperienced staff andagreed that several of the descriptors were inaccurate. The Commissioner found that the insurer had recorded incorrect descriptors against the complainant's personal information and by not using a reference number was unable to verify why it had made the enquiries, or to find the various entries when it needed to correct the information. The insurer had thus not taken reasonable steps to ensure the personal information it disclosed was accurate and complete. In conciliation the insurer's procedures were changed, the complainant's personal information on the industry database was amended and the complainant received an unconditional apology.

In K and Finance Company (re ss 18E and 6 of the Act and para 65 of the explanatory notes to the Credit Reporting Code of Conduct) the complainant claimed to have signed as guarantor for a loan for a family member. The finance company providing the loan to that relative subsequently listed a serious credit infringement on the complainant's consumer credit information file held by a credit reporting agency. A copy of the loan contract obtained by the Commissioner showing the complainant was a joint borrower with the family member rather than a guarantor for the loan and that the complainant was made aware at the time of signing the loan contract that personal information might be disclosed to a credit reporting agency. The financier had sent demand letters to the complainant's last known address, with the mail had been returned marked 'not known at this address'. A collection agent visited the complainant's last known address and reported the complainant was no longer at the address, the complainant's home telephone number had been disconnected, and messages left by the finance company on the complainant's mobile telephone went unanswered. The Commissioner concluded that at the time of the listing the account was overdue, with the finance company having made reasonable efforts without success to contact the complainant. The complainant had stopped making payments under the credit contract and that the actions of the complainant would indicate to a ‘reasonable person' an intention to no longer comply with obligations in relation to the debt. The financier had not interfered with the complainant's privacy.

In J and Commonwealth Agency (re IPP 1, 10 and 11) the complainant claimed that during lodgement of an application with Administrative Appeals Tribunal (AAT) regarding a decision made by an Australian Government agency that agency obtained the complainant's fingerprints and provided them to a law enforcement body for the purpose of analysing certain documents. The agency advised that it had submitted the fingerprints for the sole purpose of having them forensically tested, as part of its duty to check the veracity of documents for an external tribunal. The law enforcement agency confirmed that, in line with its standard procedure, it would destroy the information when advised to do so by the referring agency. The Commissioner concluded that use of the fingerprints was consistent with the purpose for collecting the fingerprints – to check the veracity of documents – and was therefore authorised under IPP 10.

In H and Registered Club (re NPP 1.1, 1.3 and 4.2) the complainant alleged that a registered club interfered with their privacy by scanning their driver licence and, in doing so, recording unnecessary information. The complainant conceded that the club was required to collect their name, address and signature but argued the collection of the other information on the licence (inc date of birth, driver's licence number, driver's licence type and photograph) to be unnecessary. The club relied on statutory obligations to retain certain personal information for five years, stating it had a procedure in place to delete the information after that time. It would not agree to cease or alter its identity scanning practices, instead continuing to offer patrons the option of manually completing and signing its entry register. The club advised that a privacy statement is displayed at its entrance regarding collection and handling of their personal information; the statement is also displayed on the terminal when identification is scanned. The Commissioner decided that the offer of deletion coupled with the alternative option of manual sign-in adequately dealt with the collection issues in the complaint.

In G and Parking Services Organisation (re NPP 1.1, 1.2 and 4.2) the complainant alleged that a parking services organisation had no reason to collect the person's personal information and sought destruction of the information. The parking body had a short business relationship with the complainant and believed it was owed money from that relationship, going on to obtain a subpoena for records held by a state government department. These records contained the complainant's personal information, relating to the complainant. Sounds like the WA problem noted recently. The complainant alleged there was a mistake - there was no debt and it was thus unnecessary for the organisation to collect/hold the personal information. The complainant had not received a response after raising the issue with the parking body. That body indicated to the Commissioner that at the time it collected the complainant's personal information it believed the complainant owed money. It noted that the information was not obtained by deception but through a court subpoena. It went on to note that it later identified that there had been an administrative error: the complaint did not owe a debt. No matter, it seems: when the information was collected from the state government department the organisation believed in good faith that the information was necessary to pursue the non-payment for its services. That received a pat on the head from the Commissioner, which noted that the parking body did not need the complainant's consent before it collected the information, which was necessary for its activities and "was collected by lawful and fair means and not unreasonably intrusively". The Commissioner was similarly persuaded by the body's claim that it was required to keep the complainant's personal information to meet obligations with other laws, including taxation and corporations law. The body had written to the complainant, outlining why it needed to continue to hold the personal information in its records and the timeframe for destruction (ie for at least five years). The case note states that the Commissioner is "satisfied that the organisation had a legitimate reason for retaining the complainant's personal information". The implication seems to be that if you act in good faith in seeking recover a non-exiostent debt you get to keep the data for seven years, rather than apologising for your ineptitude and deleting the info forthwith.

Fou

It is axiomatic that application charges and processing charges have the potential to fundamentally inhibit community use of freedom of information law and thereby reduce both the transparency and accountability espoused by the Commonwealth Government in announcing changes to the Freedom of Information Act 1982 (Cth) last year.

In a conference paper and law journal article earlier this year I highlighted concerns regarding the legislation, arguing that the commitment of many Australian government agencies - and of senior officials - to the 'open government' philosophy was at best uncertain. Enthusiasm, as in the Gruen Government 2.0 report, for fashionable tools such as Twitter does not offset resistance on the part of Ministers, agency heads and midlevel bureaucrats to letting sunlight into the bowels of public administration. Vampires, watercolours and mushrooms may need to be kept in the dark; the public are made of stronger stuff and should not be.

The absence of FOI application charges and low processing charges is an acceptable cost for the operation of a contemporary liberal democratic state.

Along with closure of National Archives offices it is thus disturbing to see responses by national government agencies to the discussion paper [PDF] released by the Office of the Australian Information Commissioner in October this year. The Commissioner states that -

Fees and charges have always played a central and at times contentious role in the operation of the Freedom of Information Act 1982 (FOI Act).

The policy of the FOI Act is that agencies can impose charges to recoup some of the costs incurred in processing FOI requests. This ability to impose a charge also plays a practical part in the discussions that are held between agencies and applicants about defining and managing the scope of requests.

On the other hand, the FOI Act recognises that charges can impede the exercise by the community of the right to seek access to government documents. A stated object of the Act is that it should be administered 'as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost'. Agencies also have a discretion under the Act not to impose a charge or to waive or reduce a charge.

FOI charges have figured prominently in much of the debate about the operation of FOI laws in Australia. Some complain that charges are assessed or imposed by agencies so as to frustrate access to government information. Others counter that only minimal charges are collected and that the true cost of FOI to Australian government and the community is understated.

Important legislative changes were introduced in 2010 to the FOI fees and charges regime. Those changes abolished application fees and reduced the charges that agencies can impose.

In introducing those changes, the Australian Government recognised the importance and sensitivity of this step and foreshadowed that the Australian Information Commissioner would be asked to commence a review of the charges regime within a year of these changes commencing.

In its response the Department of Foreign Affairs & Trade (DFAT) - not widely known for its frugality or efficiency - has called for the reinstatement of application fees. That call is echoed by the Department of Resources, Energy & Trade (DRET), which suggests $50 per application for non-personal requests [PDF]. The Department of Finance & Deregulation [RTF] suggests $40. IP Australia proposes a waivable application fee for all requests, personal or otherwise [PDF]. The response by the Department of Prime Minister & Cabinet (fear not, Sir Humphrey Appleby lives!) is a work of silky equivocation rather than leadership.

The agencies acknowledge that historically the cost of collecting the charges has outweighed the revenue; the Defence Department accordingly advises against reinstatement [PDF]. The calls for reinstatement appear to reflect -

• a desire to inhibit unstructured requests
• the failure of agencies to point potential applicants to information in other formats (eg in Hansard, Annual Reports and agency websites

What about processing fees? Not much joy for civil society advocates, journalists and academics from DFAT and DRET. The latter proposes $44.87 per hour for search and retrieval (an increase from the current $15), $59.83 per hour for decision-making (up from $20), $13.16 per page for transcripts (up from $4.40), and $0.30 per page for photocopying.

DFAT has proposed that foreign citizens be charged at a higher rate, citing an applicant from an overseas university who sought documents for an essay, taking up the time of a senior official for two weeks, and paid nothing for the documents after successfully applying for a waiver on financial hardship grounds.