Mostly

'Why Data Privacy Law Is (Mostly) Constitutional' by Neil M. Richards in Intellectual Privacy (Oxford University Press, Forthcoming) argues

that privacy critics arguing that most privacy rules create constitutional problems overstate their case. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont law that discriminated on both content and viewpoint. Such a law would have been unconstitutional if it had regulated even unprotected speech. As the Sorrell Court made clear, the real problem with the Vermont law at issue was that it didn’t regulate enough, unlike the “more coherent policy” of the undoubtedly constitutional federal Health Insurance Portability and Accountability Act of 1996.

Data privacy law should thus rarely be thought as implicating serious constitutional difficulties, which is a good thing. As we move into the digital age, in which more and more of our society is affected or constituted by data flows, we face a similar threat. If “data” were somehow “speech,” virtually every economic law would become clouded by constitutional doubt. Economic or commercial policy affecting data flows (which is to say all economic or social policy) would become almost impossible. This might be a valid policy choice, but it is not one that the First Amendment commands. Any radical suggestions to the contrary are unsupported by our Constitutional law. In a democratic society, the basic contours of information policy must ultimately be up to the people and their policymaking representatives, and not to unelected judges. We should decide policy on that basis, rather than on odd readings of the First Amendment.

Parentage

'The Birth of a Parent: Defining Parentage for Lenders of Genetic Material' by Lynda Wray Black in (2014) 92 Nebraska Law Review argues that

With the advances in assisted reproductive technology, the scholarly quest for an all-inclusive legal definition of parentage has proliferated. All too often this quest becomes muddled in Constitutional tangles, in shifting mores, in quagmires of evolving and inconsistent legal parameters on what constitutes a “family”, and in the perceived need to reconcile conflicting state laws governing marriage, adoption and surrogacy contracts. This article suggests a return to the basics. Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders to parentage. Once the examination of the concept of parentage is disentangled from the complications of related, but logically independent, legal questions, it becomes clear that unless and until the rights and obligations of parentage are either (voluntarily) contractually waived or (involuntarily) judicially or statutorily terminated, the law must recognize as parent any individual (regardless of his or her gender, sexual orientation or marital status) who is biologically related to a child.

Black comments

Historically, questions surrounding the parentage of a child were limited in scope to the identity of the biological father for support or inheritance purposes. With time, additional parentage issues presented themselves, namely, the replacement of a biological parent through adoption or the use of surrogacy arrangements to award parentage contractually to infertile heterosexual couples. Consequently, until fairly recently the totality of parentage questions could be resolved by reference to a state’s paternity, adoption or surrogacy laws and judicial decisions. If there were a question regarding the identity of a child’s father, states provided several alternative means by which a man could establish parental rights in a child. Likewise, in the surrogacy context, under both traditional and gestational surrogacy arrangements, the statutory and common law of a state governing surrogacy contracts determined who shall be recognized as the legal parents of the child. With respect to adoption, state law has detailed the process by which the rights of the biological parents are terminated and parental rights are established in the adoptive couple. Within each of these evolving bodies of law, however, the starting point of parentage is a biological connection to the child.

More recently, the parentage conversation has been extended to children of same sex couples. Generally, the legal discussion surrounding the parentage of children of same sex couples has focused on establishing parentage using the laws of adoption. This focus is misguided for children born “out of” a lesbian relationship. The adoption process creates a relationship in one who is not a biological or birth parent. Not only does parentage based upon an adoption model relegate same-gender parents to a conceptually secondary, rather than primary, parental status, all too often the adoption statutes limit the right to adopt to “couples” which brings both the gender and the marital status of the adoptive parent into consideration. Adoption laws are premised on the absence of or termination of someone else’s parental status coupled with the demonstrative intent to parent by the adoptive parent. Logically, adoption statutes place both qualitative and quantitative limits on who may fill the parental vacancy through the right to adopt. Someone else’s pre-existing status as parent could constitute sufficient reason for denial of parentage by adoption; an analysis of all parties with parental claims is required. Acquisition or continuation of traditional parentage based upon consanguinity, by contrast, requires neither satisfying a qualitative standard nor referencing the parental rights of any other person or persons. The determination is made as if in a vacuum with the vertical relationship of child to biological parent as the only consideration. The rights of one biological parent are contemporaneous with, equal to and not mutually exclusive of the rights of another biological parent.

The questions of parentage posed by the introductory hypothetical are more analogous to traditional questions of paternity based upon establishing the biological connection to the child than they are to questions of creating legal parentage in a genetic stranger by adoption. Traditional thinking, namely, that a child can have only one mother, has curtailed the logical extension of establishing paternity by biology to the establishment of maternity by biology. As will be addressed in Part II, maternity has been understood as a question of fact, that fact being childbirth. Maternity is still a question of fact, but the scientific facts have changed to permit two biologically related females for one child. It has become prescriptive rather than descriptive to limit the label of biological mother to either (i) the genetic mother or (ii) the gestational mother. If a biological connection to the baby is the starting point for legal parentage, the law must embrace the science supporting the biological connection of not only the genetic mother but also the gestational mother. ART terminology which is deemed to waive the biological connection of parentage must be revised, as the suppliers of sperm and eggs may be intended parents. In addition, parentage statutes which remain gender-specific, with one individual identified as father and the other identified as mother, simply do not contemplate or accommodate parentage by same-sex couples. Consequently, the statutes of many states would fail to acknowledge the parentage of both mothers in the introductory hypothetical. If the titles of parent are gender limited, once the “position” of mother is filled, the only parental vacancy is for a father.

This article maintains that an intended parent with a genetic relationship to a child should be entitled to full legal parental rights and obligations with respect to that child irrespective of the genetic parent’s gender. In order to achieve this equality, the law must replace gender specific biological routes to parentage with a gender-neutral genesis of parentage. In the remainder of Part I will discuss two leading parentage cases (one from the state of California and the other from the state of Florida) in which a biological mother is seeking recognition of her parental rights when such rights have been cut off by her former partner who is the child’s gestational mother. Part II of this article will examine two flaws in current parentage statutes that have fostered this inequality, namely, the false conflict between the gestational and the genetic mother and, secondly, the unintended outcome of gender-specific paternity statutes that provide men, but not women, with several means by which to establish parental rights. Part III suggests that, in light of the steady increase in the number of nontraditional families and the claim to parentage by the adults in these nontraditional relationships with respect to the children they intended to and did raise as their own, current statutory schemes no longer provide a reliable starting point for the determination of parentage. This part will advocate a paradigm shift, namely, that both statutes and courts return to the essence of the parent-child relationship: genetics. By using the genetic relationship as a foundation for the passage of gender-neutral parentage statutes and by embracing advances in ART which extend the biology of parenting to a third gestational parent, biology (limited by the intent to parent) will be the first cornerstone of legal parentage. Part III will propose a parentage decision tree that incorporates both the intent to parent and the biological bases for parentage without respect to the gender of the parent. Additionally, Part III will demonstrate that gender-neutral parentage statutes are consistent with other existing parentage concepts and public policy positions. Part IV will discuss the measures that private parties, state agencies and courts should take to resolve parentage cases in a gender-neutral manner until state legislatures enact explicit gender-neutral parentage statutes.

Conspiracy

The Supreme Court of Victoria, Court of Appeal in Director of Public Prosecutions (DPP) (Cth) v Fattal [2013] VSCA 276 has dismissed applications for leave to appeal against conviction and sentence of three people convicted of conspiracy to do acts in preparation for or planning of a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth).

According to the Crown in R v Fattal & Ors [2011] VSC 681 the proposed terrorist act was to attack the Holsworthy Army Base in south-west Sydney, killing as many soldiers and other people as possible.

Among other matters the Court of Appeal considered whether judge of first instance sufficiently directed the jury as to the need for the Crown to prove intent to advance Islam through violence, whether the strength of the Crown case against one co-accused was so much weaker as to require that the indictment be severed, whether proscription of advancement of religious causes by violent means is a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution, and whether evidence of the accused’s hostility towards Australia and her citizens should be excluded as evidence of which the probative value was outweighed by prejudicial effect.

In relation to religious freedom the Court stated that

125 The argument advanced under Ground 9 was that El Sayed had a constitutional right to freedom of religion under s 116 of the Commonwealth Constitution and thus that he was free to seek the fatwa.

126 That argument fails in limine. Section 116 of the Constitution forbids the making of any law ‘for prohibiting the free exercise of any religion’. It does not confer an absolute freedom of religion. As Gummow J said in Kruger v The Commonwealth, the preposition ‘for’ directs attention to the objective purpose of the law in issue and, as McTiernan J observed in Adelaide Company of Jehovah’s Witnesses’ Inc v The Commonwealth, the section is most likely not aimed at executive action. The question for the purposes of s 116 is whether the Commonwealth has, by passing s 101.6 of the Criminal Code, made a law in order to prohibit the free exercise of any religion.

127 Clearly it has not. The proscription of the advancement of religious causes by violent means restricts the freedom of an individual to advance a religious cause by violent means. But, as Starke J observed in Adelaide Company of Jehovah’s Witnesses’ Inc v The Commonwealth, s 116 does not confer an unlimited licence to propagate or disseminate subversive doctrines or, we add, to inflict violence upon others. It leaves Parliament empowered within the scope of its constitutional authority to enact laws reasonably necessary for the protection of the community and the interests of social order. There is no right in the name of religion or in pursuance of some perceived religious duty to the Almighty to disobey those laws; the ‘critical question is whether a law is reasonably necessary for the protection of the community and in the interests of social order’. We think it plain beyond argument that s 101.6 of the Criminal Code is just that.

128 Finally, we note that, although there was a suggestion in El Sayed’s written submissions that this matter attracted the operation of the Charter of Human Rights and Responsibilities, the notion was rightly abandoned in the course of oral argument. Clearly, as a State enactment, the Charter cannot affect the proper interpretation of Commonwealth legislation any more than any other Act of the Victorian Parliament can affect the interpretation of Commonwealth legislation. To the extent of any inconsistency between the two, the latter, if otherwise valid, will necessarily prevail by reason of s 109 of the Constitution.

The Court also dismissed a Crown appeal against the sentences imposed, ie a term of 18 years’ imprisonment with a minimum term of 13 years and six months’ imprisonment, with the Cth Director of Public Prosecutions contending that those sentences (less than life imprisonment) were manifestly inadequate.

Bubbles

'Melbourne’s High Rise Apartment Boom' [PDF] by Bob Birrell and Ernest Healy of the Centre for Population and Urban Research at Monash University foreshadows pain for the stacked dogboxes - little boxes, little boxes, and they're all made of tickytacky etc - at Docklands and similar locations in Melbourne.

The authors comment

There has been an unprecedented surge in high-rise apartment completions in Melbourne since the late 2000s – far more than in Sydney, which was once the epicentre of such development. They are located primarily in the inner city, particularly the City of Melbourne (COM) and suburbs on the fringe of the COM.

The apartment surge is just beginning. The inner-city skyline was transformed in the three years 2010-2012 when 22,605 apartments were completed. This transformation will accelerate in the next few years when around 39,000 additional apartments are likely to be completed. These are all apartments which have been released for sale (that is, part of developments where off-the-plan marketing has begun) or where construction has commenced.

The apartment boom is driving Melbourne’s extraordinary share of Australia’s dwelling approvals. In 2012-13 they constituted 24.3% of the Australian total. Yet Melbourne’s share of Australia’s population in mid-2012 was 18.5%.

Does this mean that households in Melbourne are embracing inner-city apartment living? Our analysis indicates that it does not. Rather, it is an investor rather than an occupier driven boom. Investors are responding to financial incentives, including those deriving from negative gearing.

Apartment residents remain overwhelmingly young singles or couples who are renters. As in the past, they are transients who will move into family-friendly housing when they decide to raise a family. Most of the growth in new households in Melbourne will be looking for such housing. There is no large potential source of apartment occupiers (including empty nesters) come near to filling the expansion in the apartment stock expected.

Melbourne is not like Sydney, where restrictions on outer suburban expansion have compelled 11% of households (including some families with children) to occupy apartments. In Melbourne, there are huge tracts of outer suburban land zoned for the development. Detached houses can be bought for far less than two bedroom apartments in the inner city. By 2011, only 4% of households in Melbourne lived in apartments of four stories or more.

In the case of the COM, there has been an increase in the number of those who live and work there. Nevertheless, by 2011, they comprised just 27,912 of the 344,790 persons who worked in the COM. Overseas students have also been an important source of apartment occupiers. In addition, to our surprise, there has been an increase in the number of those who live in the COM and work outside it. They increased by 5,246 between 2006 and 2011 to 19,108.

There will have to be massive increases in the numbers in each of these categories if they are to approximate the expected surge in apartments on the market. Local apartment developers, who dominate the inner suburb apartment market are backing off on new proposals. Overseas developers are undeterred. They have the resources to outbid locals for sites in the inner city and are likely to approach 100% of completed apartments in this area by 2016. They are responsible for the recent surge in proposals for CBD apartment towers.

The authors argue that

Melbourne is a more attractive to developers than Sydney because there are more potential sites for high-rise apartment projects which can be developed at prices affordable to most investors (less than $500,000). These pricing priorities are also responsible for the increasing share of apartment projects comprising tiny apartments (mostly sub 50 square metres in net living area).

Inner Melbourne has also attracted because of its amenities. These have been enhanced by massive State Government and COM investment in infrastructure (including CityLink and Southern Cross Station), public spaces (Federation Square), parks (Birrarung Marr) and laneways. This investment was intended to enhance Melbourne’s prospects of becoming a centre of knowledge-intensive industries by enhancing the city’s liveability. It was hoped that this would attract the ‘creative class’ believed to drive this transformation. For its part, the COM has long wanted to transform the CBD and surrounds into an inviting mix for residence, work and entertainment.

This investment has helped in the fashioning of a ‘Melbourne Story’, which has been particularly attractive to Asian developers and investors.

However the apartment boom is squandering this investment. It is delivering tiny, poor quality apartments that will repel rather than attract the ‘creative class’. The COM planners have recently issued a withering critique of the outcome. The chief advocate of the COM’s original vision, Rob Adams, has declared that the current ‘flood’ of apartments has gone too far.

Despite warnings of an apartment glut the State Government and the COM are pressing on with plans to facilitate further urban renewal. They include Fishermans Bend and the City North and Arden-Macauley precincts of the COM to the north of the CBD. The COM’s planning blueprint assumes that the number of dwellings in the COM will increase from 67,533 in 2012 to 110,533 in 2031.

The State Government wants the apartment boom to continue because it is one of the few bright lights of the current Melbourne economy. It can ignore the COM planners’ concerns because it holds the planning authority for apartment towers in excess of 25,000 square metres floor space. It is approving almost all proposals put to it. The outlook is that the investment in the city’s amenities will be squandered. The city is heading towards becoming a dormitory rather than a centre for knowledge-intensive industries. The balance between apartments and offices in the CBD is swinging rapidly towards the former with the prospect that apartments will crowd out sites for offices in prime CBD locations.

In the three years 2013 to 2015 there will be three times the amount of floor space completed for apartments in the CBD and Docklands for new office space. The planning elites shaping Melbourne’s future are ignoring the disconnection between the investor driven apartment boom and real housing preferences. Their plans for the inner city’s expansion and for its economy are based on a property boom that our analysis indicates will implode.

 They go on to suggest that the COM case for massive inner-city growth is unconvincing

The COM commissioned two consulting firms to advise it on the city’s economic prospects. The first by ACIL Tasman puts some flesh on the widely disseminated claim that the COM is already a thriving knowledge city. The report is optimistic that the COM is well placed to contribute to the long-standing State Government ambition to make it a focal point of knowledge industries in Victoria. It states that the COM already has recognized strengths in fields ‘such as advanced manufacturing, biotechnology, creative industries (particularly design) event management, financial services’ and so on. It also has key ‘World Class’ assets including the Walter and Eliza Hall Institute and the University of Melbourne.

ACIL Tasman repeats the Florida thesis discussed earlier in the context of the Victorian Government’s original vision for Docklands. It states that:

Melbourne has many of the attributes that Richard Florida (the leading international theorist on what attracts creative people to certain locations) believes the “the creative class” attaches much importance to, such as a vibrant and diverse street life; compact, distinctive and authentic neighbourhoods with a diversity of buildings; a finely meshed street pattern; and pedestrian-friendly public spaces.

The Report provides a good account of the kind of economy so many of Australia’s leaders aspire to create, now that the impetus from the mining investment boom is waning. The hope is that the exports of services into Asia will fill the gap. Unfortunately, the Report does not document the COM’s achievements so far. There are no case studies of successful start-ups, for example, in bio-technology. It does not acknowledge that the ‘World Class’ assets, including the Walter and Eliza Hall Institute are mainly academic research institutes almost totally dependent on Commonwealth and State government support. The Institute does indeed have a fine research record, but the revenue it generates from royalties or other commercial offshoots is minimal (just $2.5 million in 2011).

This is not to knock these aspirations. It is vital for Victoria that new knowledge industries do emerge in the Asian Century. The point is rather that the aspirations expressed in the ACIL Tasman Report and the COM’s own claims to be a knowledge city are a flimsy base for the COM’s dwelling and population growth projections. The second report commissioned by the COM was by SGS Economics & Planning (SGS). It is entitled, Understanding the property and economic drivers of housing and was released in January 2013. It offers an interpretation of the factors generating the surge in job creation in the city between 2006 and 2011. It argues that these factors will continue to drive job creation in the COM and that many of those attracted to these jobs will be interested in residing in the COM.

The SGS report shows that, over the thirty years 1961 to the early 1990s, there was little growth in employment in the CBD or in the COM. Thereafter, job growth was rapid, except for a slowdown in the early 2000s. As noted earlier, an unprecedented 46% of all job growth in Greater Melbourne occurred in the COM over the years 2006-2011.

The report makes a convincing case that this job surge in the COM since early the 1990s was a consequence of successive Hawke and Keating Government economic reforms. They included the floating of the Australian dollar, the dismantling of restrictions on foreign financial firms operating in Australia and on international financial transactions and tariff reductions which forced Australian-based enterprises to compete in the international marketplace.

The result was a massive increase in trade, information and of commercial interchange with the global economy. SGS argue that Sydney and Melbourne have been the main beneficiaries of this process. They have provided the dominant sites for the international and domestic firms engaged in this interchange. Also, their size has generated agglomeration effects which SGS puts great store on. These refer to the synergies and efficiencies which emerge when there is a high concentration of professional service firms clustered around the main domestic and international institutions in the service economy (like the big four banks and Telstra). According to SGS, these agglomeration advantages will become more pronounced as Sydney and Melbourne continue to grow.

Though to some degree in Sydney’s shadow, Melbourne has done relatively well in recent years because it has provided more space for office expansion (Docklands), much cheaper rents than are available in Sydney and improvements in ease of access to the CBD (CityLink and the Ring Road), again by comparison with Sydney. SGS argue that:

For Melbourne, the ongoing shift in global trade is likely to mean continued growth of the knowledge intensive and Advanced Business Service sector. This is one key area in which Melbourne is internationally competitive… Given Melbourne is a location with high liveability and a highly skilled work force, it is very likely it will continue to be an attractive location for such firms in the long term, provided, of course, the city can maintain the competitive strengths inherent in its urban quality and functionality.

Interestingly the SGS report does not play up the ‘knowledge city’ factor. It merely suggests that, with continued growth in the finance sector and associated professional services, this will attract more professionals and in the process generate demand for a range of supporting services in retail, cafes etc. SGS goes on to say that: ‘The amenity that this creates will also attract some firms e.g. creative architecture/ IT/ start-up firms into the surrounding areas.’ The operative word is ‘some’.

The SGS report is much thinner on the prospects of the additional workers it believes will work in the COM deciding to reside in the COM. It asserts that the ‘shift towards inner city living is likely to continue’. It cites international evidence that well paid knowledge workers like to live in ‘dense urban environments and large cities, reside in well-established knowledge communities and seek cultural and education opportunities as well as affordable housing’. But, there is no probing into whether the kind of apartment stock being added to the COM will be attractive to these knowledge workers. Nor does SGS grapple with the recent evidence, cited above, that only a minority of the extra persons employed in the COM were resident there by 2011.

The weak point in the SGS report is that it does not substantiate its argument that the COM is now ‘internationally competitive’ in the provision of services. The COM has undoubtedly benefited from its role as a financial mediator between Australia and the rest of the world. But, the main impetus to employment in the COM in recent years has been the provision of financial and professional services within Australia which are linked to Australia’s rapid economic and population growth during the 2000s and the increased income of most its residents.

Employment growth in the COM has already diminished, with the peaking of the mineral investment boom and the overall slowdown in the Australian economy. As credit growth has slowed, the big banks and finance enterprises are no longer taking on new staff. Rather, some are looking to augment their profits by aggressive outsourcing and offshoring. As a consequence, the Melbourne office market is softening. According to BIS Shrapnel, Melbourne faces a ‘bleak’ two year period.

One indicator is that the net absorption of office space in the Melbourne CBD contracted slightly in the year to July 2013.

There is reason to believe that there will be no rapid revival of the housing and consumption boom of the 2000s. As a number of economic commentators have pointed out, during the commodity price boom of the past decade, nearly half of the increase in Australian residents’ real income came from the improvement in Australia’s terms of trade. As a consequence residents were able to buy more imported stuff per Australian dollar than before.

This source of real income growth has come to an end with the slump in commodity prices and decline in the value of the Australian dollar. Maybe it is just a short-term phenomenon. Nonetheless, its impact will be significant while it lasts because, if the terms of trade do continue to fall, the impact will be felt as a contraction of real income. The outlook, according to the Australian Treasury, is that Australia’s terms of trade will decline steadily over a prolonged period to 2029-30.  If this is the case, one major source for the property boom of the 2000s, according to the Reserve Bank and other authorities quoted earlier, will diminish. This is the increase in real household income which made it possible for households to take on high levels of mortgage debt and the mortgage payments resulting.

If SGS is correct, the situation will be rescued by Melbourne’s ‘internationally competitive’ knowledge-intensive industries. However, the recent record is not encouraging. The education industry has been by far the largest exporter of services in Victoria. This derives from the expenditure of overseas students on fees and expenses while in Australia. The COM has been an important site for this industry, not just via enrolments at RMIT and Melbourne University but also by branches of regional universities, notably Central Queensland University. It has also been a focus for TAFE institutions offering hospitality courses. At its peak in the late 2000s, there was a string of kitchens and hairdressing salons in the COM providing such courses. Most are now gone. As noted earlier, enrolments in the higher-education sector have also declined. The export of education-related services from Victoria, which peaked at $5.5 billion in 2009-10 have since been estimated to have fallen to $4.4 billion in 2011-12.

Official estimates for the export of telecommunication and business services from Victoria indicate that the level is low relative to NSW and declining. The peak year for the export of business services (which includes legal, accounting and management consulting as well as architectural, engineering and scientific services) was in 2008-09 when they reached $1.93bn (compared with $4.4bn in NSW). After falling sharply in 2009-10, they have since increased to $1.87bn in 2011-12.  We conclude that there is no convincing case that the COM will repeat the jobs boom of the period 2006-2011 in the medium term. If this is the case, it is unlikely that this important driver of demand for apartments will continue as in the recent past.

We conclude the warnings by BIS Shrapnel and others are correct. The massive number of apartment completions to be completed from already released projects plus those soon to be released by overseas developers in the CBD and vicinity is far more than is likely to be needed.

Divides and dollars

'Trying to connect: Telecommunications access and affordability among people experiencing financial hardship' by Sarah Wise (Anglicare Victoria, 2013) is a reminder of of persistent digital divides.

Wise comments that

With rapid changes in telecommunications technology comes concern about inequalities opening up between those who have access to the information and other benefits new telecommunications technology transfers and those who do not.

Anglicare Victoria’s Hardship Survey 2013 focussed on the affordability and accessibility of telecommunication technology among it’s low-income sample. Early in 2013 a total of 325 clients were surveyed across 25 Emergency Relief and Financial Counseling services located right across metropolitan and nonmetropolitan Victoria.

She notes that the findings show that

• telecommunications are not universally accessible 
• deprivation of home Internet (49.2%) and mobile Internet (56.1%) were unacceptably high 
• clients living with dependent children had better access to home Internet than other clients 
• too many clients with home Internet relied on a dial-up/phone service, particularly in non-metropolitan areas
• the majority of clients see the benefits of home Internet access
• deprivation of home phone was high (38.2%), although clients prefer mobile phone to home phone 
•  mobile phone ownership is widespread and essential to client’s lives 
• almost half (45.2%) of clients with mobile phones used it as their only form of telecommunication
• monthly expenditure on mobile phone was low relative to other forms of telecommunications and the majority of users consider it somewhat or very affordable
•  two-thirds (66.0%) of mobile phone users had difficulty paying their account and 61.7% of clients with a pre-paid account ran out of credit sooner than expected
• clients engaged in a range of meaningful strategies to try and manage their expenditure on, and increase their access to, telecommunications.

The Health expenditure Australia 2011-12 report [PDF] by the Australian Institute of Health and Welfare (AIHW) meanwhile estimates that expenditure on health in 2011-12 was $140.2bn, up from $82.9bn in 2001-02 and $132.6bn in 2010-11.

In 2011-12, health expenditure as a percentage of gross domestic product (GDP) was 9.5%, up from 8.4% in 2001-02. Much of the increase coincided with the Global Financial Crisis. From 2001-02 to 2007-08, the ratio of health expenditure to GDP increased by 0.4 percentage points from 8.4% to 8.8%. In just the following two years, the ratio increased by 0.6 percentage points to 9.4% in 2009-10.

The ratio of government health expenditure to taxation revenue was relatively stable between 2001-02 and 2007-08, increasing from 19.9% to 20.8%. It then rose to a peak in 2009-10 of 26.2% and declined to 25.6% in 2011-12. Over the decade to 2011-12, the Australian Government ratio of health expenditure to taxation revenue rose by 4.0 percentage points to 26.4%, while the state and territory governments ratio rose by 8.1 percentage points to 24.5%.

Analysis of health inflation suggests that the annual increase in prices in the broader economy in recent years has generally been faster than increases in prices in the health sector. Growth in health expenditure, has largely been driven by increases in the volume of health goods and services purchased, rather than price.

In 2011-12, the estimated national average level of recurrent expenditure on health was $5,881 per person. Expenditure varied from $5,711 per person in New South Wales to $8,512 per person in the Northern Territory.

Governments funded 69.7% of total health expenditure during 2011-12, an increase from 69.1% in 2010-11. The percentage contribution of the Australian Government fluctuated throughout the decade, dropping from 44.0% in 2001-02 to 42.4% in 2011-12. The state and territory contribution grew steadily from 23.2% to 27.3% over the same period. Non-government sources funded 30.3% in 2011-12, down from 32.8% in 2001-02.

Spending on public hospital services in 2011-12 was estimated at $42.0bn, or 31.8% of recurrent expenditure. Expenditure on medical services ($23.9bn, or 18.1%) and medications ($18.8bn, or 14.2%) were other major contributors. Increased spending on public hospital services of $2.1bn in real terms was the largest component of the increase in health expenditure since 2010-11, accounting for approximately one-third (32.9%) of the increase in recurrent expenditure. This was followed by spending on medical services, which grew by $1.0bn in real terms.

The Australian Government's share of public hospital services funding was 38.2% in 2011-12, down from 39.6% in 2010-11. State and territory governments' share was 53.3% in 2011-12, up from 52.0% in 2010-11 and 47.2% in 2001-02.

Based on the Organisation for Economic Co-operation and Development (OECD) System of Health Accounts framework, Australia's health expenditure to GDP ratio in 2011 (9.1%) was just above the OECD median (9.0%). Australia's average health expenditure per person in 2011 ($5,952) was also higher than the OECD average ($5,484) and median ($4,851).

Mugshots

Today's NY Times features an article on commercial mugshot site, of interest in relation to the 'right to be forgotten', consumer protection law, privacy and personality rights.

the mug shot from [name's arrest for an offence resulting in a spent conviction] is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “[name]” were mug-shot sites.

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid.

To Mr. [name], and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. ...

It was only a matter of time before the Internet started to monetize humiliation. In this case, the time was early 2011, when mug-shot Web sites started popping up to turn the most embarrassing photograph of anyone’s life into cash. The sites are perfectly legal, and they get financial oxygen the same way as other online businesses — through credit card companies and PayPal. Some states, though, are looking for ways to curb them. The governor of Oregon signed a bill this summer that gives such sites 30 days to take down the image, free of charge, of anyone who can prove that he or she was exonerated or whose record has been expunged. Georgia passed a similar law in May. Utah prohibits county sheriffs from giving out booking photographs to a site that will charge to delete them.

But as legislators draft laws, they are finding plenty of resistance, much of it from journalists who assert that public records should be just that: public. The Reporters Committee for Freedom of the Press argues that any restriction on booking photographs raises First Amendment issues and impinges on editors’ right to determine what is newsworthy. That right was recently exercised by newspapers and Web sites around the world when the public got its first look at Aaron Alexis, the Navy Yard gunman, through a booking photograph from a 2010 arrest.

“What we have is a situation where people are doing controversial things with public records,” says Mark Caramanica, a director at the committee, a nonprofit organization based in Arlington, Va. “But should we shut down the entire database because there are presumably bad actors out there?”

Mug shots have been online for years, but they appear to have become the basis for businesses in 2010, thanks to Craig Robert Wiggen, who served three years in federal prison for a scheme to lift credit card numbers from diners at a Tex-Mex restaurant in Tallahassee, Fla. He was looking for another line of work, according to news articles, and started Florida.arrests.org.

The idea soon spread, and today there are more than 80 mug-shot sites. They Hoover up most of their images from sheriffs’ Web sites, where rules and policies about whose mug shot is posted and for how long can vary, from state to state and from county to county.

.... Justmugshots is one of several sites named in a class-action lawsuit filed last year by Scott A. Ciolek, a lawyer in Toledo, Ohio. Mr. Ciolek argues that the sites violate Ohio’s right-of-publicity statute, which gives state residents some control over the commercial use of their name and likeness. He also says the sites violate the state’s extortion law.

“You can’t threaten to embarrass someone unless they pay you money,” he said, “even if they did exactly what you are threatening to embarrass them about.”

Lance C. Winchester, a lawyer in Austin who represents BustedMugshots and MugshotsOnline, both named in the lawsuit, says Mr. Ciolek’s lawsuit is a stinker because the United States Supreme Court has ruled time and again that mug shots are public records.

“I understand people think there is a dilemma presented by a Web site where you can pay to have a mug shot removed,” he said. “I understand that people don’t like to have their mug shots posted online. But it can’t be extortion as a matter of law because republishing something that has already been published is not extortion.”

The Times comments that

The trick is balancing the desire to guard individual reputations with the news media’s right to publish. Journalists put booking photographs in the same category as records of house sales, school safety records and restaurant health inspections — public information that they would like complete latitude to publish, even if the motives of some publishers appear loathsome.

The Reporters Committee for Freedom of the Press favors unfettered access to the images, no matter how obscure the arrestee and no matter the ultimate disposition of the case. Even laws that force sites to delete images of the exonerated, the committee maintains, are a step in the wrong direction.

“It’s an effort to deny history,” says Mr. Caramanica, the committee director. “I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.”

People eager to vanish from mug-shot sites can try a mug-shot removal service, a mini-industry that has sprung up in the last two years and is nearly as opaque as the one it is intended to counter. “I’m not going to go into what we do,” said Tyronne Jacques, founder of RemoveSlander.com (Motto: “Bailout of the Internet for good!”). “Whatever works.”

Removal services aren’t cheap — RemoveMyMug.com charges $899 for its “multiple mug shot package” — and owners of large reputation-management companies, which work with people trying to burnish their online image, contend that they are a waste of money.

“Their business model is to find someone willing to pay to take down their image, which marks them as a target who is willing to pay more,” says Mike Zammuto, president of the reputation company Brand.com.

... AS painful as they are for arrestees, mug shots seem to attract big online crowds. Google’s results are supposed to reflect both relevance and popularity, and mug-shot sites appear to rank exceptionally well without resorting to trickery, according to Doug Pierce, founder of Cogney, a search engine optimization company based in Hong Kong. At the request of The New York Times, Mr. Pierce studied a number of the largest mug-shot sites and found that they were beloved by Google’s algorithm in part because viewers who open them tend to stick around.

“When others search your name, that link to Mugshots.com is way more attention-grabbing than your LinkedIn profile,” Mr. Pierce said. “Once they click, they stare in disbelief, and look around a bit, which means they stay on the page, rather than returning immediately to the search results. Google takes that as a sign that the site is relevant, and that boosts it even more.”

What’s curious is that Google doesn’t penalize these sites for obtaining their images and text from other places, a sin in the company’s guidelines. The idea is that Web sites should be rewarded for coming up with original material and receive demerits for copying.

If it acted, Google could do what no legislator could — demote mug-shot sites and thus reduce, if not eliminate, their power to stigmatize.

Initially, a Google spokesman named Jason Friedenfelds fielded questions on this topic with a statement that amounted to an empathetic shrug. He wrote that the company felt for those affected by mug-shot sites but added that “with very narrow exceptions, we take down as little as possible from search.”

Two days later, he wrote with an update: “Our team has been working for the past few months on an improvement to our algorithms to address this overall issue in a consistent way. We hope to have it out in the coming weeks.”

Mr. Friedenfelds said that when he sent the first statement, he was unaware of this effort. He added that the sites do, in fact, run afoul of a Google guideline, though he declined to say which one. Nor would he detail the algorithmic changes the company was considering — because doing so, he explained, could spur mug-shot sites to start devising countermeasures.

As it happens, Google’s team worked faster than Mr. Friedenfelds expected, introducing that algorithm change sometime on Thursday. The effects were immediate: on Friday, two mug shots ... which had appeared prominently in an image search, were no longer on the first page. For owners of these sites, this is very bad news.

And, it turns out, these owners face another looming problem: getting paid.

Asked two weeks ago about its policies on mug-shot sites, officials at MasterCard spent a few days examining the issue, and came back with an answer.

“We looked at the activity and found it repugnant,” said Noel Hanft, general counsel with the company. MasterCard executives contacted the merchant bank that handles all of its largest mug-shot site accounts and urged it to drop them as customers. “They are in the process of terminating them,” Mr. Hanft said.

PayPal came back with a similar response after being contacted for this article.

“When mug-shot removal services were brought to our attention and we made a careful review,” said John Pluhowski, a spokesman for PayPal, “we decided to discontinue support for mug-shot removal payments.”

American Express and Discover were contacted on Monday and, two days later, both companies said they were severing relationships with mug-shot sites. A representative of Visa wrote to say it was asking merchant banks to investigate business practices of the sites “to ensure they are both legal and in compliance with Visa operating regulations.”

Health Practitioner Vetting

The Australian Health Practitioner Regulation Agency (AHPRA) is conducting a further public consultation [PDF] on international criminal history checking.

The APHRA consultation paper seeks feedback on options for refining international criminal history checks used in assessing applications for registration for the 14 health professions regulated under the Health Practitioner Regulation National Law, ie

• Aboriginal and Torres Strait Islander Health Practice Board of Australia
• Chinese Medicine Board of Australia
• Chiropractic Board of Australia
• Dental Board of Australia
• Medical Board of Australia
• Nursing and Midwifery Board of Australia 
• Medical Radiation Practice Board of Australia
• Occupational Therapy Board of Australia
•  Optometry Board of Australia 
• Osteopathy Board of Australia 
• Pharmacy Board of Australia 
• Physiotherapy Board of Australia
• Podiatry Board of Australia, 
• Psychology Board of Australia. 

Section 79 of the National Law provides that before deciding an application for registration, a National Board must check the applicant’s criminal history, with the Board being authorised to  obtain a written report about the applicant's criminal history from

• CrimTrac;
• an Australian  police commissioner;
• an entity in a jurisdiction outside Australia that has access to records about the criminal history of persons in that jurisdiction. 

The vetting poses questions about spent convictions, fraud (several practitioners with serious overseas offences have massaged their CVs) and criminalisation of political activity in some nations.

Criminal history is defined in the National Law as:

a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;

b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;

c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. 

The word ‘offence’ is not defined in the National Law and has its ordinary meaning of ’a breach of the law’.

The current approach to checking criminal histories involves:

1. seeking an Australian criminal history through CrimTrac and

2. requiring the applicant to sign a declaration on the registration application form disclosing their criminal history in all countries, including Australia. ;

In cases where applicants declare that they have no criminal history outside Australia; no further evidence, audit or authentication is currently required, nor sought. Further investigation takes place in instances where applicants declare a criminal history,  with that history being assessed according to the relevant Board’s Criminal history registration standard.

AHPRA and the National Boards have been considering "possible ways to refine the mechanisms for international criminal history checks", balancing requirements for public protection with the need for "responsive and timely application and assessment processes for health practitioners seeking registration in Australia". In the initial consultation there were four options -

1: Applicant declaration only

2: Applicant provides criminal history clearance evidence with application

3: AHPRA obtains clearance/information from jurisdictions outside Australia when processing application

4: Applicant makes declaration and AHPRA undertakes random sample audit 

Following disagreement evident in the small number of responses to the initial options AHPRA has sought comment on a new option (option 5), involving conduct of  international criminal history checks by an external provider with demonstrated expertise in employment screening, including international checks.

AHPRA argues that option 5

would establish a similar process for checking international criminal histories to the current process for checking domestic criminal histories through CrimTrac. It would strike a reasonable balance between risk, undertaking comprehensive checks where appropriate and not imposing unnecessary delays on applicants becoming registered.

The applicant would be required to meet the cost of the international criminal history checks. Existing general requirements would continue to apply (every applicant to undergo a domestic criminal history check, make a declaration about their criminal history and arrange the provision of Certificates of Registration Status from every jurisdiction where they have been registered). 

The option would involve the following aspects -

• AHPRA would tender to identify a provider with expertise in international criminal history checking.
• All applicants would continue to have an Australian criminal history check before registration.
• An international criminal history check would also be done for any applicant who declares that they have lived in a country other than Australia for a specified period of time when 18 years of age or older.
• A check would be done on each country where the applicant has lived a specified period of time when 18 years of age or older.
• The check would apply to the applicant’s entire criminal history (there will be no time limit on the check).
• The check would be done after the applicant is registered. The period between granting registration and the completion of the check would be covered by the applicant making a declaration about their international criminal history.
• The applicant would pay the cost of the international criminal history checks required plus an administration fee.