Alms

Noting explicit prohibitions on begging in Australian statutes -

In South Australia the relevant provision is  Summary Offences Act 1953 (SA) s 12 -

Begging alms 

(1) A person who—

(a) begs or gathers alms in a public place; or 

(b) is in a public place for the purpose of begging or gathering alms; or 

(c) goes from house to house begging or gathering alms; or 

(d) causes or encourages a child to beg or gather alms in a public place, or to be in a public place for the purpose of begging or gathering alms; or 

(e) exposes wounds or deformities with the object of obtaining alms,

is guilty of an offence. Maximum penalty: $250. 

In Victoria Summary Offences Act 1966 (Vic) s 49A -

Begging or gathering alms 

(1) A person must not beg or gather alms. Penalty: 12 months imprisonment. 

(2) A person must not cause, procure or encourage a child to beg or gather alms. 

Penalty: 12 months imprisonment. 

In Tasmania Police Offences Act 1935 (Tas) s 8 provides -

Begging, imposition, prostitution, &c. 

(1) A person shall not –

(a) in a public place beg or expose wounds or deformities, or place himself or herself or otherwise act so as to induce, or attempt to induce, the giving of alms, or instigate or incite a child to do any of those things; 

(1AA) A person who contravenes a provision of subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units or to imprisonment for a term not exceeding 6 months.

In Queensland Summary Offences Act 2005 (Qld) s 8 provides -

Begging in a public place 

(1) A person must not —

(a) beg for money or goods in a public place; or

(b) cause, procure or encourage a child to beg for money or goods in a public place; or

(c) solicit donations of money or goods in a public place.

Maximum penalty—10 penalty units or 6 months imprisonment.

In the Northern Territory the Summary Offences Act s 56 provides -

(1) Any person who: 

(c) wanders abroad, or from house to house, or places himself in any public place, street, highway, court, or passage, to beg or gather alms , or causes or procures or encourages any child so to do; 

(e) has on or about his person, without lawful excuse (proof whereof shall lie upon the person charged), any deleterious drug, or any article of disguise; or 

(i) habitually consorts with reputed criminals, shall be guilty of an offence. 

Penalty: 500 dollars or imprisonment for 3 months, or both.

Sectuion 57 of that Act provides -

Offences after finding of guilt under section 56, &c. 

(1) Any person who:

(a) having been found guilty of an offence under section 56 commits any of the offences mentioned in that section; 

(b) solicits, gathers, or collects alms , subscriptions, or contributions under any false pretence, or wanders abroad and endeavours by the exposure of wounds or deformities to obtain or gather alms ; 

(d) pretends to tell fortunes, or uses any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose upon a person; 

(e) has in his custody or possession, without lawful excuse (proof whereof shall be upon the person charged), any picklock, key, crow, jack, bit, or other implement of housebreaking; 

(l) being a suspected person or reputed thief, is in, on or near, with intent to commit any offence triable on information in the Supreme Court or any indictable offence, any river, canal, navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjacent thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent; or 

(p) leaves his wife or child: (i) chargeable, or whereby either of them becomes chargeable, to the public; or (ii) without means of support other than public charity,

 shall be guilty of an offence. 

Penalty: 1,000 dollars, or imprisonment for 6 months, or both.

Advertising

'Drug promotion in Australia: Policy contestation and the tightening of regulation' by Evan Doran and Hans Löfgren in (2013) 11(2) Australian Review of Public Affairs 19–41 [PDF] describes

developments in Australia’s regulation of prescription drug marketing and promotion. We show that the pharmaceutical industry has proved less capable of shaping the regulation of promotion than other areas of pharmaceutical policy. Public health advocates have effectively highlighted the negative impact of promotion on quality use of medicines. While consumers have long been assumed to be in need of protection from drug promotion, it is now accepted that marketing to medical professionals should also be more closely controlled. Government has responded by tightening such regulation but has stopped short of ending industry self-regulation.

The authors comment that

Concern that the promotion of therapeutic goods too often involves ‘quackery’ and ‘extravagant or otherwise objectionable’ claims has been a feature of Australia’s regulatory control of medicines since Federation in 1901 (McEwen 2007). Such apprehensions intensified as medicines came to play an increasingly important role in most Australians’ pursuit of health. The focus has been mainly, but not exclusively, on prescription drugs that often provide effective treatments but are also the most hazardous. Regulating prescription drug promotion is intended to prevent extravagant and objectionable claims by suppliers and minimise inappropriate, risky and expensive consumer demand. 

Pharmaceutical policies reflect the enduring tensions between government objectives of supporting economic activity, on the one hand, and ensuring that the public has access to safe, effective and affordable drugs, on the other (Grund 1996; Abraham 2008; Fox & Ward 2008a). Much is at stake in this policy domain—citizen health and safety, the public purse, and the profit interest of powerful corporations. The imperative for governments is to strike an acceptable balance between the competing interests and commitments of stakeholders—regulators, drug manufacturers, medical and pharmacy professionals, and consumers. The emphasis of Australia’s regulation of drug promotion has been on public safety and efficacy, closely followed by containing the cost of drug use that promotion is intended to stimulate. These goals, however, are meant to be achieved without imposing undue restrictions and costs on manufacturers (Toogoolawa Consulting 2002). 

The most salient feature of Australia’s regulation of prescription drug promotion is the ban on Direct-to-Consumer Advertising (DTCA). The Therapeutic Goods Act (1989) prohibits DTCA of prescription drugs although manufacturers are able to indirectly promote their products to the public in other ways (described below). The rationale for prohibiting DTCA is that consumers’ lack adequate knowledge of medicines and may be negatively influenced by promotion. Advertising and other forms of drug promotion directly to doctors (also described below) are permitted on the assumption that a doctor’s expertise largely precludes any negative influence. In other words, the information asymmetry between drug manufacturers and doctors is less stark than that between suppliers and general consumers. Controlling non- DTCA promotion has largely involved manufacturers self-regulating through a Code of Conduct framed within the relevant legislation. This is a co-regulatory governance arrangement, premised on partnership between government and business, but ultimately self-regulation is undertaken in the shadow of government. The industry can expect the imposition of more intrusive and direct government controls should self-regulation be deemed inadequate (Bartle & Vass 2005). 

For successive Australian governments, the balance between ensuring safety and minimising burdensome regulation has been struck through prohibition of DTCA in conjunction with the co-regulation of drug promotion to doctors, an arrangement (ostensibly) accepted by drug manufacturers. This is considered to provide adequate safeguards against inappropriate practices, making more direct regulation or legislation of promotion unnecessary (Medicines Australia 2010). This arrangement, however, has become less acceptable to critics of drug promotion. Many within Australia’s public health community consider self-regulation inadequate; a strong case has been made for it to be strengthened if not abandoned and replaced by independent oversight (Vitry, Lexchin & Mansfield 2007; Mintzes 2010). 

Drug promotion is one area of pharmaceutical policy where interests other than manufacturers and government—notably public health advocates and health consumer groups—have sought and achieved greater input. In this paper we show that owing to a sustained effort by such advocates, drug promotion is almost invariably constructed as a problem for quality use of medicines (safe, timely and affordable use) in current policy discourse. Significantly, while consumers have long been assumed to be vulnerable to drug promotion, it is increasingly accepted that doctors too are vulnerable and should not be exposed to unconstrained industry marketing. This has resulted in unprecedented scrutiny of drug promotion. But notwithstanding the relative success of public health advocates in constructing the policy issue as one of consumer safety, drug promotion in Australia remains largely self-regulated by the industry. 

The regulation and governance of pharmaceuticals emerges from the ‘nexus of power relations existing between the stakeholders in a social and political context’ (Fox, Ward & O’Rourke 2006). In an era of ‘regulatory capitalism’ Australian governments seek to minimise direct regulation (Braithwaite 2005). Indeed, a senior federal Cabinet member is titled the Minister for Finance and Deregulation. This does not necessarily translate into less regulation but is typically reflected in the devolvement of regulation to those stakeholders that are to be regulated, such as businesses and professions. Self-regulation may then be ‘meta-regulated’—a term for the regulation of self-regulation (or co-regulation). Self-regulation is a central element in contemporary governments’ attempts to establish governance of economic and social activities. Rather direct oversight and control, such governance works through interactive processes of networks and partnerships that develop capacities of jointly pursuing common goals (Stoker 1998). For proponents, this approach to governance achieves an ‘effective but light touch regulation’ where government is seen as ‘steering’ rather than ‘rowing’ towards public policy objectives (Bartle & Vass 2005). Steering rather than rowing is expected to reduce the ‘regulatory burden’ and avoid the ‘regulatory fallibility’ that can generate unintended negative consequences and ultimately undermine policy objectives (Banks 2003). 

Governance involves co-ordination by state agencies of conflictual interest groups through ‘set piece’ policy events such as commissions and public consultations and ‘behind the scenes’ negotiations between government officials and stakeholders (Fox & Ward 2008). Co-ordinating a plurality of policy actors relies less on command and coercions and more on sustaining a broad ‘field of consent’ regarding the appropriate goals and rules of the particular activity (Fox, Ward & O’Rourke 2006). Gaining and sustaining consent means that differences among stakeholders need to be accommodated and balanced, which requires an ongoing, dynamic process of brokering and compromise (Fox & Ward 2008). Governance is thus fluid and consent partial and contingent. Its configuration evolves in response to (cultural, political, economic and technological) changes in the wider environment and to changes in the relative power of stakeholders. An important element of the power of stakeholders is the force and currency of their ideas. 

A critical issue in policy contests is the capacity of stakeholders to frame the relevant issues in the terms of its own ideas (Sell & Prakash 2004). Ideas—theories, conceptual models, beliefs and values—define policy problems and provide legitimate programs for policy action (Yee 1996; Campbell 1998). Ideas range from abstract ontological and normative principles to specific theoretical propositions (Surel 2000) and can operate at a level of taken-for-granted general assumptions or as explicit imperatives and justifications for policy action (Campbell 2002). In the Australian context, the normative idea of equity underpinning pharmaceutical subsidy programs is an example of the former; the idea of ‘moral hazard’ underpinning prescription cost sharing is an example of the latter (Doran & Robertson 2009). The influence of an idea within a policy community at a given time will depend on the power of individuals and groups proposing particular policy perspectives. Influence will also depend on an idea’s normative and cognitive appeal to policy makers—an appeal intimately connected to prevailing intellectual and public sentiments. In the following, we focus on two ideas central to drug promotion regulation in Australia; minimising ‘regulatory burden’ and ensuring ‘quality use of medicines’ (QUM). We also highlight how a third idea—the susceptibility of doctors to drug promotion—has been used to shift the balance between the two.

Audit of the Central Movement Alert List

Belatedly catching up with the 136 page Australian National Audit Office (ANAO) Management of the Central Movement Alert List: Follow-on Audit report [PDF].

The Central Movement Alert List (CMAL) is a border electronic watch list

containing information about individuals who pose either an immigration or national security concern to the Australian Government as well as information on lost, stolen or fraudulent travel documents. It is an integral part of Australia’s layered approach to border security, identifying people of concern prior to their arrival at the border. 

CMAL is managed by the Department of Immigration and Border Protection (DIBP). Other  agencies  with an interest in CMAL include the Australian Security Intelligence Organisation (ASIO), Australian Customs and Border Protection Service (Customs), Australian Federal Police (AFP)  and Department of Foreign Affairs & Trade (DFAT).

The report notes that

Australia’s universal visa system requires non-Australian citizens or permanent residents intending to enter or transit through Australia to obtain either a visa or an Electronic Travel Authority. All travellers entering Australia are therefore checked against CMAL, usually at several points along the travel pathway and generally at some distance from the physical border. CMAL information is also taken into account when DIBP assesses applications for Australian citizenship. 

Passenger movements into and out of Australia are increasing annually: from approximately 17 million per annum in 2000–01 to almost 30 million in 2011–12. This number is expected to rise to 50 million per annum by 2020. DIBP will need to have the capability and capacity to meet the challenges presented by these expected demands.

CMAL comprises two databases -

• the Person Alert List (PAL), which stores the biographical details of identities of concern. As of 30 November 2013 it contained 683,287 primary identities. 
• the Document Alert List (DAL), which is a list of lost, fraudulent or stolen travel documents. As of 30 November 2013 it contained 969,320 travel documents

CMAL is reported by ANAO to have  "generated 306,509 potential match cases per month on average, which resulted in 174 415 true matches between November 2012 and November 2013". Using name matching software, the CMAL system queries its data holdings and identifies and presents potential or likely matches for assessment by Border Operations Centre (BOC) staff.

PAL records are categorised according to the alert reason code (ARC), i.e. the reason for listing the identity. There are 19 ARCs with each being categorised as high, medium or low risk. The national security ARC comprises approximately half the PAL database. ARCS include Interpol listings of serious criminals, United Nations travel sanctions, and lists regarding war crimes and weapons of mass destruction.

Generally Australian citizens are free to enter and leave Australia at will. In 2008 there were 772 Australians listed on MAL; by May 2013 the number of Australians listed on CMAL was down to 172.  Listings of adult Australians are confined to three ARCs only: national security, organised immigration malpractice and ‘surrender Australian travel document’. ANAO notes that  approximately 10,500 children are listed on CMAL, e.g. for child custody concerns or because they simply a member of a family.

For example United Nations travel sanctions will apply to the whole family, and DIBP lists children where there is a debt to the Commonwealth but that debt may have been incurred by a parent. Just over 2,500 children are listed under health concerns and almost 3,000 children are listed under child custody concerns. In addition, 1,315 children are listed on CMAL for debts to the Commonwealth. 

In assessing visa or citizenship applications the DIBP decision maker must take CMAL information into account

ANAO comments that

CMAL was introduced progressively in 2008 and 2009, replacing the previous decentralised Movement Alert List (MAL) system as the operational database. Successive reviews of MAL had judged it to be conceptually sound, but had also identified a number of operational and management deficiencies. The Wheen review, undertaken in 2003, in particular found that:

• there was an increasing number and proportion of data deficient alerts, emphasising the need for effective quality assurance processes; 

• effective reporting was needed to promote awareness of MAL’s performance and to manage the business to achieve optimal outcomes; 

• future management arrangements should include quality assurance processes to monitor and analyse trends and patterns of data, as well as feedback from users; 

• MAL had become a system serving the whole of government and an inter-agency forum should be established to consider agencies’ interests in the operations and future directions of CMAL; 

• negotiation of a formal understanding with ASIO to establish the extent of DIBP’s responsibility for the acceptance of and processing of national security alerts; and 

• ‘instructions’ to be developed covering the limited circumstances in which it would be appropriate to record Australian citizens on MAL.

The Wheen review also identifed the future need for MAL to have the capability to incorporate new technologies, such as biometrics as valuable additions in the identification of people of concern. 

 ANAO's  2008–09 performance audit of the management of the MAL indicated that "the lack of strategic or management planning for the database and the poor quality of the data contained within it, particularly its ‘completeness, quality and currency’, compromised the system’s effectiveness".

In its latest report ANAO characterises CMAL as "a key instrument" -

used to manage the entry into and presence in Australia of non-citizens who are of concern for immigration or border security reasons. CMAL information is taken into account when a person applies for a visa to come to Australia, to cross its borders, or applies for Australian citizenship. 

ANAO found that -

• CMAL works effectively at an operational processing level. Centralised data input has seen the overall data quality of CMAL improve, particularly for more recent records and around 92% of records now meet DIBP’s minimum data standards. System updates have also delivered improved technical functionality and DIBP’s centralised data matching expertise, together with upgraded data matching rules, now provide a high degree of data matching accuracy. 
• DIBP has also developed a close and effective relationship with its key external stakeholders, particularly ASIO and Customs. 
•  DIBP’s strategic management arrangements for CMAL still require development. There has been no strategic planning undertaken to guide the future direction of CMAL nor is there a clearly stated strategic objective for CMAL. Whole-of-government discussions have taken place in recent years to develop an integrated border security alert capability, through the establishment of a National Targeting Centre, that will have ramifications for the operation of CMAL. 
• DIBP needs to consider how it will manage CMAL in the years ahead for its own immigration purposes. In particular, technological advances in biometrics now make identification of individuals less dependent on biodata and intelligence gathering. 
• The ownership of CMAL data and consequential responsibility for data quality and integrity are unresolved issues. Addressing these issues, at both the data input stage and through the ongoing review of CMAL records, is important for the operational effectiveness and longer term sustainability of CMAL. 
• Until DIBP develops cost effective arrangements to measure CMAL’s outcomes and its impact on visa and citizenship decisions, the department will not be in a position to report on the system’s outcomes and its contribution to Australia’s border security arrangements. 
• Progress in implementing the recommendations in the 2008 audit report has been slow. Of five recommendations in the 2008 audit, only two have been implemented, so that: 

• there is no plan for the population, maintenance and review of the database, 

• performance reporting, particularly to demonstrate where CMAL has contributed to the reason for decisions in visa and citizenship applications, is not routinely undertaken 

• systems quality assurance reporting mechanisms have not been finalised 

• agreed formal reporting arrangements between DIBP and Customs  remain the subject of negotiation. 

• Given the centrality of CMAL information, there is a compelling case for the department to provide a stronger focus on its strategic positioning, in particular CMAL data ownership and quality control and performance reporting. 

The ANAO notes that

Despite CMAL’s significance to border security, DIBP still does not routinely collect performance information on the role CMAL plays in visa and citizenship decisions. 

In 2010, DIBP undertook an exercise to assess CMAL’s effectiveness in the context of visa and citizenship applications, where it was possible to identify that CMAL information was a factor in the decision making process. This process was largely manual and resource intensive. The exercise identified that, between November 2008 and October 2010, 201,532 individual clients had been matched to an alert. In 78% of these cases (156,520), the decision maker chose not to seek an override and declined the citizenship or visa outcome. In 22% of cases (45,012), the decision maker chose to override the red status and continue the visa or citizenship application process. 

This exercise provided helpful performance information about the extent to which CMAL information had been a factor in visa and citizenship decsions. However, it has not been repeated and, in the absence of any alternative arrangement, there is no information available to provide insights into CMAL’s current contribution to Australia’s border security arrangements. While recognising there is a cost associated with collecting such information, there would be benefit in DIBP building on this baseline data and investigating stream-lined and cost effective options for obtaining information about CMAL’s contribution to Australia’s border security. This information would assist DIBP to better advise the Government and Parliament and also provide a basis for more informed decision making in relation to CMAL.

ANAO comments that DIBP investigates "missed matches if and when they come to light".

From January 2010 until February 2011, nine missed matches were detected and individually investigated, with reports going to the Secretary and the Director-General of ASIO. 

In all instances, the missed matches were the result of human error and changes were made to BOC procedures.

It refers to

analysis of override data, which is where the decision maker, having checked CMAL, decides to proceed with the visa or citizenship application, notwithstanding the information contained in CMAL. The ANAO analysis of override data showed that low and medium risk ARCs were overridden more frequently than high risk ARC alerts, a finding indicative of a system working effectively. The override data also shows that some alerts have consistently high rates of overrides, suggesting that their ongoing inclusion in CMAL could warrant review by DIBP. For example, since 2011, alert matches for debts to the Commonwealth have been overridden by decision makers in over 55% of cases.

APS Terminations

The Australian Public Service Commission has released a short discussion paper seeking public comment (be quick, the deadline is 22 April) regarding whether staffing decisions - in particular, decisions to terminate APS employees' employment and the reasons for doing so - should continue to be notified in the Australian Public Service Gazette (which is available online).

The Commission notes that in 2013 the Parliamentary Joint Committee on Human Rights queried the requirement to notify those decisions in the Gazette, with particular regard to the right to privacy under article 17 of the International Covenant on Civil and Political Rights. The Committee also noted questions in relation to the Convention on the Rights of Persons with Disabilities in instances where termination is due to physical or mental incapacity.

The Commission indicates that it is considering whether employment decisions should continue to be publicly notified in the Gazette and, if so, to what level of detail.

Gazetting employment decisions provides assurance about the transparency of the APS and promotes confidence in the integrity of its administration. At the same time, however, an employee whose employment has been terminated has the right to privacy and to the protection of their reputation.

The discussion paper notes that

Public confidence in public administration is crucial to the effective working of government, and often depends on the proper balance of competing interests. Public confidence in the APS relies on a transparent, accountable public service—but also on due regard being had to the privacy of individuals and to the effective management of the APS. In this context, the Commission is reviewing the Service-wide practice of notification in the Gazette of employment decisions; in particular, of terminations of employment including the employee’s name and the reason for the termination. Gazetting employment decisions provides assurance about the transparency of the APS and promotes confidence in the integrity of its administration. At the same time, however, an employee whose employment has been terminated has the right to privacy and to the protection of their reputation.

The paper goes on to briefly discuss "the relationships between sometimes competing public and private interests, namely: the private interests of APS employees; in particular, their right to privacy and the protection of their reputation, the public interest in the protection of individuals’ privacy, and the interest of the public in its right to know how public resources are being managed".

Publication in the Gazette reflects clause 2.29 of the Australian Public Service Commissioner’s Directions 2013, which requires the gazettal of certain employment decisions. The paper comments that the requirement to gazette certain employment decisions has been a feature of Public Service legislation for many years, with for example  the Public Service Act 1922 (Cth)  s 92 providing that "notice of every appointment, promotion, retirement or dismissal of officers" "shall be published in the Gazette". The Public Service Act 1999 (Cth)  moved the public notification requirement to the regulations, of which Regulation 3.12 dealt with the requirement for public notification of 'certain employment decisions, including engagements, movements, assignments of duties, promotions, and terminations as well as retirements of SES employees' under s. 37 of the new Act.

That Regulation was amended in December 2000 to include a specific requirement that the gazettal of termination decisions include the grounds for termination in order to assist the Public Service & Merit Protection Commission in monitoring and reporting on the types of separations from the APS. Last year  the requirement to notify employment decisions was moved to the Commissioner’s Directions, albeit the Commissioner was authorised to agree to an agency withholding the name of an employee in a Gazette notice in certain work-related or personal circumstances. "Employee-initiated decisions such as resignation and retirements" are not gazetted .

The paper notes that only Tasmania and the ACT have a requirement to notify termination decisions in the equivalent of the Gazette. Tasmanian gazettal of all employment decisions, including termination, is taken as ‘conclusive evidence’ of the actions taken on the basis of these decisions. The Tasmanian  notice must include the name, department, and date of effect, but not the reason for the termination of employment. In the ACT retirements and dismissals are notified together, without differentiation, in a single section of the Gazette.

It is argued that public notification of APS employment decisions "reinforces the openness, transparency and accountability of the APS", enabling

the community to hold the public service to account that such decisions are based on the principle that the APS is staffed on merit and provides an easily accessible public record of when engagement and promotion decisions take effect. This public recordkeeping also facilitates the efficient management of the APS, including the process for employees to apply for review of promotion decisions. The routine notification of such decisions impacts on the privacy of the employees but because this type of information is commonly disclosed as part of normal social interaction and because of the strong public interest grounds the practice is arguably justified. Should a public servant’s personal situation be such that it outweighs the public interest of disclosure, the Commissioner’s Directions allow for a name to be withheld on application to the Commissioner. 

The paper goes on to comment that the rationale for publishing termination decisions (inc the name of the employee and the grounds for termination) is not as strong as that for continuing to notify engagement and promotion decisions. The grounds for termination are -

• the employee is excess to the requirements of the Agency; 
• the employee lacks, or has lost, an essential qualification for performing his or her duties; 
• non-performance, or unsatisfactory performance, of duties; 
• inability to perform duties because of physical or mental incapacity; 
• failure to satisfactorily complete an entry-level training course; 
• failure to meet a condition imposed under subsection 22(6); 
• breach of the APS Code of Conduct; 
• any other ground prescribed by the regulations 

In 2012-13 some 3130 employees were terminated - 85.4% on excess grounds, 8.8% on the grounds of physical/mental incapacity and 5.8% on 'other grounds' (of which 38 employees were terminated for a breach of the APS Code of Conduct.

The Commission asks three questions -

• Is there any justification for publishing in the APS Gazette termination decisions that show the name of the employee and the reason for termination? Are the goals of transparency and accountability sufficient to justify the intrusion on privacy entailed by gazettal? Is it necessary, in the interests of transparency and accountability, to include the employee’s name and the reason for the termination? 
• Is there any justification for treating particular termination decisions differently than others? Are there some types of terminations for which the justification for continuing to publish names and reasons for termination is stronger, for example when employment is terminated as a result of underperformance or a breach of the Code of Conduct, or where a monetary benefit has been received?  Is it necessary, in the interests of transparency and accountability, to include the employee’s name when publishing these types of termination decisions? If decisions about other types of terminations of employment are not gazetted, is it reasonable to gazette a smaller subset of decisions? 
• Could the intention of the gazettal requirement be achieved in some other way? Might it be sufficient, for example, to report in the Commissioner’s annual State of the Service report, or the APS Statistical Bulletin, on overall numbers of terminations of employment across the APS? Reasons for termination could be presented in aggregate form.

The Commission states that

Publishing names and the reasons for termination as a matter of routine in the Gazette assists the APS by providing an accessible and reasonably up to date public record of termination decisions which can be used to monitor these matters Service-wide and inform management decisions. The data supplements (and is occasionally used to reconcile) data published in the Australian Public Service Statistical Bulletin. The Bulletin publishes on an annual basis the numbers of separations from the APS and includes comprehensive information on separations including by type of separation, agency, classification, length of service, age group and sex. 

Publication thus offsets bureaucratic incapacity, i.e. agencies not providing data direct to the Commission. (One response might be that the effort involved in getting data into the Gazette could just as easily be invested in sending data to a Commission email address. The Commission argues that

publication of names and reasons for termination can assure the public that appropriate action is being taken in cases where the good management of the Service is compromised, such as in Code of Conduct and underperformance cases, particularly for senior employees whose decisions and actions may have a significant impact on the community. 

Publication of the names of employees who receive a monetary benefit because they are ‘excess to requirements’ can also reinforce the openness, transparency and accountability of the APS. 

In referring to privacy it notes that

When the requirement to publish termination decisions was introduced in 1902, personal information became protected by its ‘practical obscurity’ once archived, meaning that thereafter it could only be tracked down in a library or archive by a motivated researcher. Today, termination information published online in the Gazette is available years after the fact, and is discoverable via a search engine. This raises a new set of privacy challenges that may call for a different procedure.  … [I]t may be useful to have regard to what a reasonable employee would expect in the circumstances. 

Most employees would regard publication of information that would indicate that they are incapable of fulfilling their duties because of a physical or mental incapacity an unacceptable intrusion into their privacy. Many employees are also likely to consider that the publication of information indicating that they lack, or have lost, an essential qualification, failed to complete an entry-level training course, failed to meet a condition of their engagement (specified in subsection 22(6) of the Act), or are ‘excess to requirements’ as equally unacceptable. 

In relation to termination of employment for a breach of the Code of Conduct and non-performance or underperformance of duties, employees may consider that the penalty of termination of employment is sufficient punishment and that public release of such information is an additional and unwarranted punishment. 

On this basis, it is reasonable to consider removing the requirement to gazette termination decisions. The interests of transparency may be served in a different way; for example, by publishing information about termination of employment in aggregate form in the State of the Service report or the Bulletin. 

While agencies provide the Commissioner with data on the reasons for termination, this has not been published to date in the Bulletin but could be — for example, in a way that does not identify individuals. Aggregate data on termination of employment for breaches of the Code of Conduct is routinely published in the State of the Service Report. Publication of aggregated data showing the reasons for termination in these circumstances may be sufficient to maintain public confidence in the APS and avoids naming individuals.

Historic ACT Convictions

Action in Victoria and the UK to right historic wrongs through on-request expungement of criminal records regarding consensual same-sex activity has been noted elsewhere in this blog.

In January I wrote to the ACT Attorney-General, given his Government's high-profile support for same-sex marriage, best illustrated through its poorly-drafted and accordingly unsuccessful Marriage Equality (Same Sex) Act 2013 (ACT).

I called on the Government to emulate those other jurisdictions through statutory change to enable expungement. Change would not involve fundamental drafting or administrative difficulties. It would arguably be endorsed by many of the people who are disquieted by notions of gay marriage.

Three months later I have received the following reply

Dear Professor Arnold 

Thank you for your email dated 13 January 2014 which you called on the ACT Government to commit to expunging the criminal records of people convicted of certain homosexual offences in the ACT prior to 1976. This follows the recent announcement that the Victorian Government would legislate later this year to expunge the criminal records for those who were convicted of homosexual sex prior to 1981. 

I acknowledge that a criminal conviction for consensual sexual acts done in private is unjust for some individuals in our community. The ACT Government is strongly committed to achieving equality for the gay and lesbian community and in my view this should include addressing the harms associated with our historic legal legacy. 

Historic offences are a complex and sensitive area of the criminal law and any changes should only be made after careful consideration of all relevant issues. 

I have asked my directorate to provide me with advice on the legislative options in the context of measures adopted or being considered by other jurisdictions.

Regrettably the Government has not committed to quickly addressing what it acknowledges is an historic wrong. The Directorate will do its homework but apparently the Attorney-General is not prepared to take a stand.

The response might well have been written by the suave Sir Humphrey Appleby in Yes Minister mode. Yes there is injustice but because the matter is "complex" and "sensitive" and there's a need for "careful consideration of all relevant issues" let us not be hasty in seeking law reform.

It does not require much bravery on the part of the Attorney-General to issue a media release indicating that

a) the Government is aware of developments in Australia and overseas 

b) the Government acknowledges an historic wrong and 

c) the Government is moving to address that wrong.

We might assess the Government's commitment on that basis, rather than its familiarity with political weaselspeak.

APS Delation

With Banerji in mind it is interesting to see reports - accurate or otherwise - that Australian public servants will be encouraged to "dob in" peers engaged in inappropriate social media activity.

The Mebourne Sun-Herald and Sydney Daily Telegraph for example claim that

Public servants will be urged to dob in colleagues posting political criticism of the Abbott government on social media, even if the comments are anonymous, under new Department of Prime Minister and Cabinet guidelines.

The sweeping new rules will even cover public servants posting political comments anonymously, including mummy bloggers on parenting websites, if a colleague knew their online identity.

The new policy clearly states it covers the use of social media in an official and unofficial ­capacity, whether for professional or personal use. If public servants are found to have breached the Australian Public Service Code of Conduct they could be sacked. Colleagues will also be encouraged to dob in each other.

"If an employee becomes aware of another employee who is engaging in conduct that may breach this policy, there is an expectation that the employee will report the conduct to the department," the policy states.

"This means that if you receive or become aware of a social media communication by another PM & C employee that is not consistent with this policy, you should advise that person accordingly and inform your supervisor"

Human Rights Commissioner Tim Wilson has reportedly "backed the reforms", on the basis that "public servants knew what they were signed up for".

"There is nothing inconsistent with free speech and having codes of conduct or policies as a condition of employment that require professional, respectful behaviour in their role and the public domain", he said.

"It is not unreasonable for such policies to apply to conduct directly related to the primary and specific area of work of a public servant, but are unjustified when they are very broad and limit democratic participation".

"Anonymity should not justify exemptions because it can be connected back to the individual and their work".

The reported rationale for restrictions on being "harsh or extreme" in "criticism of the Government, Government policies, a member of parliament from another political party, or their respective policies" is that such expression "could raise questions about the employee’s capacity to work professionally, efficiently or impartially" and that a "gratuitous personal attack ... might reasonably be perceived to be connected with their employment".

We might wonder, however, about encouragement of delation ... albeit 'dobbing' is as Australian as football, beer and meat pies, with for example hotlines run by -

• Department of Immigration and Border Protection
• Centrelink
• Australian Taxation Office
• Department of Human Services 
• Australian Federal Police
• Victoria Police
• Consumer Affairs Victoria
• Victoria Taxi Directorate
• Cycling Australia
• KPMG
• Woolworths
• Business Software Association

I'm reminded of the literature on denunciation, including 'Signals from below: Soviet letters of denunciation of the 1930s' by Sheila Fitzpatrick in (1996) The Journal of Modern History 831-866, 'Letters of denunciation in the Lyon Region 1940-1944' by Ben Williams in (2001) 26(2/3) Historical Social Research 136-152, 'Slaves as criminal informers in ancient Rome' by Martin Kelly in (1999) 23(2) International Journal of Comparative and Applied Criminal Justice 307-312, 'Good tongues, bad tongues: Denunciation, rumour and revenge in the French Basque Country, 1943–1945' by Sandra Ott in (2006) 17(1) History and Anthropology 57-72, 'The theory and practice of denunciation in the French Revolution' by Colin Lucas in (1996) The Journal of Modern History 768-785, Snitching: Criminal Informants and the Erosion of American Justice (New York University Press, 2009) by Alexandra Natapoff, 'Thoughts on a neglected category of social movement participant: The agent provocateur and the informant' by Gary Marx in (1974) American Journal of Sociology 402-442, Inventing the enemy: Denunciation and terror in Stalin’s Russia (Cambridge University Press, 2011) by Goldman, Tear off the masks! Identity and imposture in Twentieth-Century Russia (Princeton University Press, 2005) by Fitzpatrick, Imperial inquisitions: prosecutors and informants from Tiberius to Domitian (Routledge, 2002) by Steven Rutledge, Confidential informant: law enforcement's most valuable tool (CRC Press, 1999) by John Madinger, and Accusatory Practices: Denunciation in Modern European History, 1789-1989 (1997) ed by Fitzpatrick and Robert Gellately.

Recent case law regarding employees in trouble for use of social media includes Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444; Banerji v Bowles [2013] FCCA 1052; Little v Credit Corp Group Limited [2013] FWC 9642; Pearson v Linfox Australia Pty Ltd [2014] FWC 446; and Wilkinson-Reed v Launtoy Pty Ltd [2014] FWC 644

DIBP Data Breach

The Guardian reports that in a Federal Circuit Court directions hearing Driver J has told counsel for the Immigration Minister and the Department of Immigration and Border Protection that proceedings in litigation by people in detention over the data breach noted elsewhere in this blog would be "simpler if we have some indication of what the process is".

The hearing concerns  whether it is within the Court’s jurisdiction to deal with claims  by the detainees. Their counsel reportedly argued that under section 198 of the Migration Act the government is obliged to remove failed asylum seekers “as soon as reasonably practicable”. Accordingly,  many detainees  fear  Australia will breach non-refoulement obligations under international law by removing them following  public disclosure of their personal information.

The Department  argues that the claim does not invoke the Court’s jurisdiction because until the process of dealing with the effects of the breach is complete "nobody will be under any threat of removal". Perceptions of threat are possibly not alleviated by actions such as that noted here.

The Department and its lawyers have been silent on process for handling the data breach. The Guardian, perhaps unkindly, sniffs that they

were unable to detail in court the processes by which the department was dealing with people in detention who had their personal details disclosed in a massive data breach.

A letter the department secretary, Martin Bowles, sent to detainees affected by the breach, who number almost 10,000, informs them the impact will be assessed individually in line with "normal processes".

Greater transparency about those processes is desirable.

The Government recently announced that the "End of taxpayer funded immigration advice to illegal boat arrivals saves $100 million".

 The government has fulfilled another election pledge with the removal of taxpayer funded immigration advice and assistance to people who arrived in Australia illegally by boat, Minister for Immigration and Border Protection, the Hon Scott Morrison said today. 

'From today people who arrived illegally by boat, as well as illegally by air, will no longer receive taxpayer funded immigration advice and assistance under the Immigration Advice and Application Assistance Scheme (IAAAS). This election commitment will save the budget $100 million,' Minister Morrison said today. 

'Australia's protection obligations do not extend to providing free immigration advice and assistance to those who arrived in Australia illegally. 

'The withdrawal of taxpayer funded immigration advice and assistance does not prevent those who arrived illegally having access to legal assistance. In addition, those who wish to provide immigration advice and application assistance pro bono are free to do so. 

'Access to any private and/or pro bono immigration advice by illegal boat or air arrivals will be facilitated by the Department of Immigration and Border Protection, with all costs to be met by the providers of these services. 

'If people choose to violate how Australia chooses to run our refugee and humanitarian programme, they should not presume upon the support and assistance that is provided to those who seek to come the right way, and they should certainly not receive additional assistance, as they did under the previous government. 

'Under these changes the government will provide illegal arrivals clear instructions in multiple languages setting out the asylum application and assessment process and will provide interpreters. This is similar to the process employed by the UNHCR around the world.