Clinical trials and pharmaceutical access

'Clinical Trials Abroad: The Marketable Ethics, Weak Protections and Vulnerable Subjects of EU Law' (Queen's University Belfast Law Research Paper No. 1) by Mark Leslie Flear explores 

how the EU is a largely overlooked exporter of normative power through its facilitation and use of clinical trials data produced abroad for the marketing of safe pharmaceuticals at home; a move that helps to foster the growing resort to the latter as a fix for public health problems. These are made possible by the EU’s (de)selection of international ethical frameworks in preference to the international technical standards it co-authors with other global regulators. Clinical trials abroad underscore how ethics are contingent and revisable in light of market needs, producing weak protections and the vulnerable subjects of EU law. I argue that these components and effects of the regime are ultimately about that which undergirds, shapes and directs regulatory design. That is, I point to the use, infiltration, perpetuation and extension of market-oriented ideas, values and rationalities into formally non-market domains like biomedical knowledge production and public health. I explain how these are central to efforts at producing and legitimating the EU, its related imagined socio-political order based on a more innovative, profitable and competitive pharmaceutical sector in order to foster economic growth, jobs and prosperity, and with them the project of European integration. ‘Bioethics as risk’ is highlighted as a way to reshape and redirect the regulatory regime in ways that are more consistent with the spirit and letter of the ethical standards (and through them the human rights) the EU claims to uphold.

'A 'Duty' to Continue Selling Medicines' by William M Janssen in (2014) 40 American Journal of Law and Medicine comments

With disappointing frequency, shortages occur in the supply of prescription pharmaceuticals. Sometimes, those shortages persist for months (even years), and can implicate the only known medicine to treat a life-threatening medical condition. Sometimes, those shortages may also be due to avoidably negligent decisions in manufacture. Twice in the past two years, seriously ill patients — confronting just such medicine supply shortages — have resorted to the courts, demanding a judicial remedy for negligently caused supply interruptions to critically needed medicines. In doing so, they have asserted a bold litigating position: the law ought to impose upon drug manufacturers a legal duty to continue selling their medicines. In other words, once a pharmaceutical manufacturer enters a medicine market, it is obligated by law to remain there and preserve perpetually its medicine’s supply. This claim of compelled-access-to-pharmaceuticals pushes to the very frontier of drug law in America. 

This Article begins by tracing the two cases (one in Utah, the other in Florida) that confronted these creative compelled-access-to-medicines arguments. Earlier cases, resolving a distinctive but thematically similar compelled-access argument in the context of experimental drugs, are introduced as well. The discussion explains how each claim lost in court. The Article next performs an independent survey of a wide range of legal theories — in constitutional principle, enacted law, regulatory law, and case law — that could be cited as alternative potential sources for imposing a duty on manufacturers to continue selling their drugs. It demonstrates that none is likely to be a credible source for that duty. Finally, the Article examines the competing policy considerations that would be implicated by “inventing” such a duty, finds that a judicial invention is unwise, but offers a potential statutory amendment designed to strike a sound balance between the legitimate proprietary and autonomy interests of manufacturers and the health and survival interests of critically ill patients.

Anonymity

'Reasonable Expectations of Anonymity' by Jeffrey M. Skopek in (2015) 101 Virginia Law Review argues 

The Supreme Court has concluded that the Fourth Amendment's protections do not apply to information that has been exposed to the public. This conclusion is deeply flawed and derives from the mistaken conflation of anonymity and privacy. Although anonymity and privacy are similar in that both maintain the secrecy of personal information, they differ in a fundamental and legally relevant way: privacy hides the information, whereas anonymity hides what makes it personal. Understanding this difference reveals compelling substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also "reasonable expectations of anonymity." Further, the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court's teaching that the Fourth Amendment "protects people, not places."

Counter Terrorism Strategy and Law Enforcement White Paper

The 56 page Review of the Commonwealth’s counter terrorism arrangements from the Department of the Prime Minister and Cabinet states that

The Commonwealth has strong, well‑coordinated counter‑terrorism (CT) arrangements. Overall, these have been quite successful – although the Martin Place siege and the stabbing of police in Melbourne raise questions.

The threat of terrorism in Australia is rising and it is becoming harder to combat.

Responding to this worsening threat picture, on 4 August 2014 the Government boosted funding to CT activities. National security agencies are significantly bolstering their capabilities to detect and disrupt the threats we face.

Every dollar must be spent wisely. We face a new paradigm that demands ever more careful prioritisation. National security agencies must come together seamlessly around shared priorities.

A restructure or reshuffle of national security agencies is not the answer. But more must be done to strengthen cross-agency coordination and leadership.

Whatever we do, there is no short‑term solution to our evolving terrorist challenge. It is almost inevitable that we will have more terrorist attacks on Australian soil.

Long term, we must put a greater effort into reducing – rather than managing – the pool of terrorists, their supporters and sympathisers.

The report states - 

• Many plots – some quite major – have been disrupted.

• There have been 35 prosecutions and 26 convictions.

• There has been no large scale terrorist attack on Australian soil in the post-2001 period.

The three fatalities within this period all happened in the Martin Place siege. The two terrorist attacks in that period – the stabbing of two policemen in Melbourne and the Martin Place siege with its two tragic victims – were carried out by individuals who planned and acted alone. Crimes planned like this are, by nature, always extremely difficult for police and security agencies to prevent.

In the years since 11 September 2001:

• many more departments and agencies have been drawn into the CT effort. Coordination is better than ever

• new legislation has been progressively introduced to provide the legal tools to prosecute terrorists and better disrupt support to terrorism

• modest efforts to counter violent extremist ideology and to promote community cohesion are now underway.

After that, we're into cliches - rising tides and so forth

The rising tide of terrorism

The threat of terrorism in Australia is rising and it is becoming harder to combat.

• There are an increasing number of Australians joining extremist groups overseas.

• There are an increasing number of potential terrorists, supporters and sympathisers in our community.

• There is a trend to low tech ‘lone actor’ attacks which are exponentially harder to disrupt: there may be no visibility of planning and no time delay between intent and action.

• There is now an intergenerational dimension, with the families of known terrorists increasingly radicalised and involved.

• The international forces driving terrorist ideology and capabilities are stronger, and extremist narratives have increasing appeal in the Australian community.

• Terrorists are using sophisticated technologies and methodologies to stay under the radar.

• Terrorists are now adept at exploiting social media to distribute polished propaganda products.

Reflecting this environment, there is an increasing requirement for early disruption of terrorist plans to best ensure public safety. This comes at the cost of securing sufficient evidence to prosecute.

• This leaves potential terrorists at large. It also erodes trust, confidence and relationships with at risk communities. It may also undermine public confidence in national security agencies and the Government generally.

 No discussion, alas, of distrust induced by institutional overreach and hyperbole on the part of Government Ministers and associates.

Winning many battles – but not the war

Despite improvements in CT capability, a terrorist attack is possible. All of the terrorism related metrics are worsening: known numbers of foreign fighters, sympathisers and supporters, serious investigations.

We are not ‘winning’ on any front. The Martin Place siege and the Melbourne attack on police are examples of a global trend: we face an increasing number of potential terrorists who are hard to detect and often willing to attack using quickly implemented, low tech tactics.

Responding to this worsening threat picture, on 4 August 2014 the Government boosted funding to CT activities. National security agencies are significantly bolstering their capabilities to detect and disrupt the threats we face.

Every dollar must be spent wisely. We face a new paradigm that demands ever more careful prioritisation. National security agencies must come together seamlessly around shared priorities. A restructure or reshuffle of national security agencies is not the answer. But more must be done to strengthen cross-agency coordination and leadership. Whatever we do, there is no short term solution to our evolving terrorist challenge. It is almost inevitable that we will have more terrorist attacks on Australian soil. Long term, we must put a greater effort into reducing – rather than managing – the pool of terrorists, their supporters and sympathisers.

The community is key.

To counter violent extremism we must work with our at risk communities. We must build resilience to terrorist ideology and assist individuals to disengage and de radicalise from violent extremist beliefs and influences.

Future direction 

To combat the challenge most effectively, we need to:

5. acknowledge that we have entered a new, long-term paradigm of heightened terrorism threat with a much more significant ‘home grown’ element

6. further improve and broaden the scope of our national CT strategy to provide a clear direction to the national security community and to improve our cooperation with at-risk communities

7. strengthen further cross agency leadership and coordination by designating a National CT Coordinator as the Government’s leading advisor on CT

8. develop a COAG strategy to counter violent extremism, increasing Australia’s national commitment to this work

9. better manage increasing resource pressures by tightening priorities and lessening the burden of the efficiency dividend on some areas of national security agencies

10. improve our communication with the public on CT threats by introducing a single threat level system to improve usability and to give the public more meaningful information.

The recommendations (on the US model) are -

1. The Government, in close consultation with states and territories through the ANZCTC, develop a new national CT strategy which appropriately coordinates and balances our efforts to counteract the various threats we face, including from home-grown lone actors and radicalisation in our community.

2. The Government implement the following arrangements to provide strong, clear and co ordinated leadership to ensure agencies respond effectively and appropriately to terrorism:

a. designate a senior official as the National CT Coordinator.

b. establish and expand an Executive Group at the Secretary/Agency Head level, chaired by the CT Coordinator, to set the strategic direction for the Commonwealth’s CT efforts

c. mandate that the Australian Counter-Terrorism Centre draw together policy and operational agencies, including secondees from the states and territories, to work together closely on operations, policy challenges and capability development.

The Australian Strategic Policy Institute has meanwhile called [PDF] for a Commonwealth law enforcement white paper, commenting

Strong international, technological, political and social forces are changing the criminal challenge to Australia. These forces mean that the Australian Government will to need to take a greater role in law enforcement in the future.

So far, the Commonwealth’s responses to these challenges have been evolutionary, reactive or incremental. While those responses include excellent innovations, some change occurs because events make recent decisions redundant - a concern amply demonstrated by the recent funding top-up for counterterrorism spending. There are also questions about where national leadership is needed to meet these challenges, and whether our current responses, particularly to serious and organised crime, are still optimal. All our law enforcement agencies face important organisational challenges, especially with sharing information, getting people with the right skills, and incorporating technology into their work.

An examination of these factors shows that it’s time for the federal cabinet to take a coordinated and strategic look at its law enforcement responsibilities, starting with a review. While a national review covering all areas of law enforcement would be preferable - so that state and territory law enforcement agencies could be included - that’s probably not practical yet. So the initial step should be a review of how today’s Commonwealth law enforcement system needs to adapt to the anticipated operating environment over the next 10–20 years.

The review should examine the interdependencies within the Commonwealth system, its links with the state and territory law enforcement systems, international partnerships and capacity building, and the relationship between the Commonwealth agencies and the private and community sectors.

The review should lead to a statement of the desired policy, organisational, legislative, operational and resource landscape for law enforcement out to 2020–30. Such a statement should leverage and institutionalise relationships between all agencies with a stake in making Australia a ‘just and secure’ society.

A major policy statement is needed now because it would explain what the Australian Government intends to do in the law enforcement space in the future, and how it will work with the other jurisdictions to achieve those aims. A law enforcement white paper process, which would help inform the Federation White Paper that’s now under development, would be a good way to assemble the arguments and allow the federal cabinet to decide on what role it will take in this central policy area. It would also provide the clear policy lead for all federal law enforcement and related agencies to do their own forward planning, based on the understanding they are contributing to Cabinet’s aims and working as part of an interdependent system.

Refugee children and barbed wire

Catching up with the Australian Human Rights Commission report The Forgotten Children: National Inquiry into Children in Immigration Detention.

The report states

Australia currently holds about 800 children in mandatory closed immigration detention for indefinite periods, with no pathway to protection or settlement. This includes 186 children detained on Nauru.

Children and their families have been held on the mainland and on Christmas Island for, on average, one year and two months. Over 167 babies have been born in detention within the last 24 months.

This Report gives a voice to these children.

It provides compelling first-hand evidence of the negative impact that prolonged immigration detention is having on their mental and physical health. The evidence given by the children and their families is fully supported by psychiatrists, paediatricians and academic research. The evidence shows that immigration detention is a dangerous place for children. Data from the Department of Immigration and Border Protection describes numerous incidents of assault, sexual assault and self-harm in detention environments.

Importantly, the Government recognises that the fact of detention contributes significantly to mental illness among detainees.

The aims of the Inquiry have been to:

• Assess the impact of prolonged immigration detention on children’s health, wellbeing and development by collecting the evidence of children and their families, scholarly research, Department of Immigration and Border Protection data and the views of medical experts and the Australian community 

• Promote compliance with Australia’s international obligations to act in the best interests of children.

There is nothing new in the finding that mandatory immigration detention is contrary to Australia’s international obligations. The Australian Human Rights Commission and respective Presidents and Commissioners over the last 25 years have been unanimous in reporting that such detention, especially of children, breaches the right not to be detained arbitrarily. The aim of this Inquiry was not to revisit the Commission’s settled view of the law, but rather to assess the evidence of the impact of prolonged detention on children.

As the medical evidence has mounted over the last eight months of the Inquiry, it has become increasingly difficult to understand the policy of both Labor and Coalition Governments. Both the Hon Chris Bowen MP, as a former Minister for Immigration, and the Hon Scott Morrison MP, the current Minister for Immigration, agreed on oath before the Inquiry that holding children in detention does not deter either asylum seekers or people smugglers. No satisfactory rationale for the prolonged detention of children seeking asylum in Australia has been offered. ...

This Report is fundamentally different from previous reports by the Commission as it focuses in both a qualitative and quantitative way, on the impact of immigration detention on children as reported by children and their parents. The Commission conducted interviews with 1129 children and parents in detention, providing a much needed foundation for objective research findings. Standard questions were used in all interviews so that the reported impacts are measurable. The evidence documented in this Report demonstrates unequivocally that prolonged detention of children leads to serious negative impacts on their mental and emotional health and development. This is supported by robust academic literature.

It is also clear that the laws, policies and practices of Labor and Coalition Governments are in serious breach of the rights guaranteed by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The United Nations High Commissioner for Human Rights also suggests in his opening address to the Human Rights Council that Australia’s policy of offshore processing and boat turn backs is ‘leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries’.

The Commission comments -

The overarching finding of the Inquiry is that the prolonged, mandatory detention of asylum seeker children causes them significant mental and physical illness and developmental delays, in breach of Australia’s international obligations.

The following is a snapshot of the findings:

• Children in immigration detention have significantly higher rates of mental health disorders than children in the Australian community. 

• Both the former and current Ministers for Immigration agreed that holding children for prolonged periods in remote detention centres, does not deter people smugglers or asylum seekers. There appears to be no rational explanation for the prolonged detention of children. 

• The right of all children to education was denied for over a year to those held on Christmas Island. 

• The Minister for Immigration and Border Protection, as the guardian of unaccompanied children, has failed in his responsibility to act in their best interests. 

• The Commonwealth’s decision to use force to transfer children on Christmas Island to a different centre breached their human rights. 

• The numerous reported incidents of assaults, sexual assaults and self-harm involving children indicate the danger of the detention environment. 

• At least 12 children born in immigration detention are stateless, and may be denied their right to nationality and protection. 

• Dozens of children with physical and mental disabilities are detained for prolonged periods. 

• Some children of parents assessed as security risks have been detained for over two years without hope of release. 

• Children detained indefinitely on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress.

The Commission notes

It is troubling that members of the Government and Parliament and Departmental officials are either uninformed, or choose to ignore, the human rights treaties to which Australia is a party. The High Court of Australia in Teoh has confirmed that, when making decisions that affect children, government officials should take account of the rights guaranteed by the Convention on the Rights of the Child.

It accordingly recommends -

• All children and their families be released into community detention or the community on bridging visas with a right to work. 
• Legislation be enacted to ensure that children may be detained under the Migration Act for only so long as is necessary for health, identity and security checks. 
• Assessment of refugee status be commenced immediately according to the rule of law. 
• No child be sent offshore for processing unless it is clear that their human rights will be respected. 
• An independent guardian be appointed for unaccompanied children seeking asylum in Australia. 
• An independent review be conducted into the decision to approve the use of force to transfer unaccompanied children on Christmas Island on 24 March 2014. 
• All detention centres be equipped with sufficient CCTV or other cameras to capture significant incidents in detention. 
• ASIO review the case of each parent with an adverse security assessment in order to identify whether their family can be moved into the community. 
• Alternative community detention be available for children of families assessed as security risks. 
• Children in immigration detention be assessed regularly using the HoNOSCA mental health assessment tool. 
• Children currently or previously detained at any time since 1992 have access to government funded mental health support. 
• Children in detention who were denied education on Christmas Island for a year be assessed to determine what educational support they require. 
• Children and families in immigration detention receive information about the provision of free legal advice and access to phones and computers. 
• Legislation be enacted to give direct effect to the Convention on the Rights of the Child under Australian law. 
• A royal commission be set up to examine the continued use of the 1992 policy of mandatory detention, the use of force by the Commonwealth against children in detention and allegations of sexual assault against these children and to consider remedies for breach of the Commonwealth’s duty of care to detained children. 
• An independent review of the implementation of these recommendations be conducted in 12 months.

Childcare Inquiry

The Government has released the Productivity Commission report on the Commission's Inquiry into Child Care and Early Childhood Learning.

The report notes that

 The market for child care and early childhood learning services is large, diverse and growing, and it touches the lives of practically every family in Australia. Almost all children in Australia participate in some form of child care or early learning service at some point in the years before starting school. In 2012, around 19,400 child care and early learning services enrolled over 1.3 million children in at least one child care or preschool programme (comprising around 15,100 approved child care services and 4,300 preschools). The Australian Government is the largest funder of the sector, with outlays exceeding $5 billion a year and growing. It is important that this expenditure achieves the best possible impact in terms of benefits to families and children as well as the wider economy. The child care and early learning system can be improved because:

• families are struggling to find quality child care and early learning that is flexible and affordable enough to meet their needs and to participate in the workforce 

• a small but significant number of children start school with learning and developmental delays 

• there are shortfalls in reaching and properly supporting the needs of children with disabilities and vulnerable children, regional and rural families and parents who are moving from income support into study and employment 

• services need to operate in a system that has clear and sustainable business arrangements, including regulation, planning and funding 

• there is a need to ensure that public expenditure on child care and early childhood learning is both efficient and effective in addressing the needs of families and children.

The Inquiry objectives were

to examine and identify future options for a child care and early childhood learning system that: • supports workforce participation, particularly for women • addresses children's learning and development needs, including the transition to schooling • is more flexible to suit the needs of families, including families with non-standard work hours, disadvantaged children, and regional families • is based on appropriate and fiscally sustainable funding arrangements that better support flexible, affordable and accessible quality child care and early childhood learning.

The Commission was to  make recommendations about -

1. The contribution that access to affordable, high quality child care can make to: (a) increased participation in the workforce, particularly for women (b) optimising children's learning and development.

2. The current and future need for child care in Australia, including consideration of the following: (a) hours parents work or study, or wish to work or study (b) the particular needs of rural, regional and remote parents, as well as shift workers (c) accessibility of affordable care (d) types of child care available including but not limited to: long day care, family day care, in home care including nannies and au pairs, mobile care, occasional care, and outside school hours care (e) the role and potential for employer provided child care (f) usual hours of operation of each type of care (g) the out of pocket cost of child care to families (h) rebates and subsidies available for each type of care (i) the capacity of the existing child care system to ensure children are transitioning from child care to school with a satisfactory level of school preparedness (j) opportunities to improve connections and transitions across early childhood services (including between child care and preschool/kindergarten services) (k) the needs of vulnerable or at risk children (l) interactions with relevant Australian Government policies and programmes.

3. Whether there are any specific models of care that should be considered for trial or implementation in Australia, with consideration given to international models, such as the home based care model in New Zealand and models that specifically target vulnerable or at risk children and their families.

4. Options for enhancing the choices available to Australian families as to how they receive child care support, so that this can occur in the manner most suitable to their individual family circumstances. Mechanisms to be considered include subsidies, rebates and tax deductions, to improve the accessibility, flexibility and affordability of child care for families facing diverse individual circumstances.

5. The benefits and other impacts of regulatory changes in child care over the past decade, including the implementation of the National Quality Framework (NQF) in States and Territories, with specific consideration given to compliance costs, taking into account the Government's planned work with States and Territories to streamline the NQF.

6. In making any recommendations for future Australian Government policy settings, the Commission will consider options within current funding parameters.

The report offers the following 'key points' -

• Formal and informal Early Childhood Education and Care (ECEC) services play a vital role in the development of Australian children and their preparation for school, and in enabling parents to work. Many families use a mix of formal ECEC and informal, non-parental care. The number of formal ECEC services has expanded substantially over the past decade. Over the same period, Australian Government funding has almost tripled to around $7 billion per year, and now covers two thirds of total ECEC costs. Despite this, many parents report difficulties in finding ECEC at a location, price, quality and hours that they want. 
• Current ECEC arrangements are complex and costly to administer and difficult for parents and providers to navigate. There are over 20 Australian Government assistance programs, some poorly targeted. Assessing service quality is cumbersome and time consuming. 
• The benefits from participation in preschool for children’s development and transition to school are largely undisputed. There also appear to be benefits from early identification of, and intervention for, children with development vulnerabilities. 
• The National Quality Framework must be retained, modified and extended to all Government funded ECEC services. To better meet the needs and budgets of families, the range of services approved for assistance should include approved nannies and the cap on occasional care places should be removed. All primary schools should take responsibility for outside school hours care for their students, where demand exists for a viable service. 
• The Commission’s recommended reforms will achieve, at minimal additional cost, an ECEC system that is simpler, more accessible and flexible, with greater early learning opportunities for children with additional needs. The reforms would also alleviate future fiscal pressures, establish a system that is easier to adapt to future changes in ECEC, and tax and welfare arrangements. Assistance should focus on three priority areas: 
• mainstream support through a single child-based subsidy that is: means- and activity- tested, paid directly to the family’s choice of approved services, for up to 100 hours per fortnight, and based on a benchmark price for quality ECEC. In regional, rural and remote areas with fluctuating child populations, viability assistance should be provided on a limited time basis. 
• support the inclusion of children with additional needs in mainstream services, delivery of services for children in highly disadvantaged communities and the integration of ECEC with schools and other child and family services. 
• approved preschool programs funded on a per child basis, for all children, regardless of whether they are dedicated preschools or part of a long day care centre. 
• Additional workforce participation will occur, but it will be small. ECEC issues are just some of a broad range of work, family and financial factors which influence parent work decisions. The interaction of tax and welfare policies provide powerful disincentives for many second income earners to work more than part time. Shifting to the recommended approach is nevertheless estimated to increase the number of mothers working (primarily of low and middle income families) by 1.2 per cent (an additional 16 400 mothers). 
• Overall, more assistance will go to low and middle income families and their use of childcare is expected to rise. However, high income families who increase their work hours may also be better off. Enabling the lowest income families (those on Parenting Payments) some access to subsidised childcare without meeting an activity test may boost ECEC participation and improve child development outcomes for this group, but this comes at the cost of potentially higher workforce participation. 

The Commission makes the following recommendations and findings -

Families using mainstream services — improving accessibility, flexibility and affordability 

F11.1 The amount families pay for ECEC varies depending on their income, care use patterns and family size. For the vast majority of families, subsidies from the Australian Government cover more than half of their ECEC fees. Current subsidy arrangements make ECEC more affordable for families. However, there are a number of issues with the way Government support is delivered: • the existing system is complex and some families have difficulty understanding their entitlements under the Child Care Benefit and the Child Care Rebate • the design of these measures is resulting in a declining proportion of assistance to lower income families who are least able to afford ECEC services • the Jobs, Education and Training Child Care Fee Assistance program is not well targeted and the very high degree of subsidisation may encourage families to remain eligible for the program. 

R15.1 The Australian Government should combine the current funding for Child Care Rebate, Child Care Benefit and the Jobs Education and Training Child Care Fee Assistance to support a single child based subsidy, to be known as the Early Care and Learning Subsidy (ECLS). ECLS would be available for children attending all mainstream approved ECEC services, whether they are centre based or home based. 

R15.2 The Australian Government should fund the Early Care and Learning Subsidy to assist families with the cost of approved centre based care and home based care. The program should assist families with the cost of ECEC services: • supplied by approved providers that satisfy the requirements of the National Quality Framework • with a means tested subsidy rate between 85 per cent (for family incomes at or below $60 000) and 20 per cent (for family incomes at or above $250 000), with annual indexation of the thresholds • which is applied to an hourly benchmark price based on the median fees charged for the type of service, and differentiating by age of child for long day care • for up to 100 hours of care per fortnight for children aged 13 years and under of families that meet an activity test of 24 hours of work, study or training per fortnight, or are explicitly exempt from the activity test (recommendation 15.3) • paid directly to the service provider of the family’s choice on receipt of the record of care provided • be conditional on the child being fully immunised, unless care occurs in the child’s home. 

R15.3 The Australian Government should exempt families from the activity test in the following circumstances: • parents are receiving an income support payment, with those who receive only a Parenting Payment being exempt from the activity test for up to 20 hours only of ECEC use per fortnight • the primary carer is a grandparent or other non-parent primary carer • exceptional circumstances, including when a family has experienced a sudden change in employment circumstances that would mean they no longer satisfy the activity test, with the exemption to apply for a period of three months following this change in circumstances • the child has been assessed as ‘at risk’, with those who have had at least 26 weeks of being assessed as at risk exempt from the activity test for a further 18 months • the child is attending a service funded (in full or part) by the Community Early Learning Program • the child is attending a preschool program in an ECEC service, with the exemption to apply for the period of the preschool program (15 hours per week for 40 weeks per year). Unless otherwise stated, these families should still be subject to the same means test as applied to other families in determining the subsidy rate that applies to their use of the ECEC service. These activity test exemptions would replace the current Special Child Care Benefit, Grandparent Child Care Benefit, and Jobs Education and Training Child Care Fee Assistance arrangements and these programs should be abolished. 

R15.4 The Australian Government should establish a capped Viability Assistance Program to assist ECEC providers in rural, regional and remote areas to continue to operate under child based funding arrangements (the Early Care and Learning Subsidy), should demand temporarily fall below that needed to be financially viable. This funding would be: • accessed for a maximum of 3 in every 7 years, with services assessed for viability once they have received 2 years of support • be limited to funding the fee gap that arises from a decline in the number of children using the service relative to the previous 3 years • prioritised to centre based and mobile services that are viable in most years • be available to new services on the condition that they can demonstrate a business plan to be financially viable within two years. 

F10.1 The value of waiting lists to families would be increased if providers were to regularly publish on an appropriate platform: • information on the fees charged to join the waiting list • information on the number of families on the waiting list for each age group • statistics on the number of places offered to children on the waiting list over a given period. 

R10.1 The Australian Government should remove the ‘Priority of Access’ Guidelines once the proposed means and activity test requirements have been introduced. 

R10.4 The Australian Government should remove caps on the number of occasional childcare places and abolish operational requirements that specify minimum or maximum operating hours for all services approved to receive child-based subsidies. ECEC services to children under school age should be operational for at least 48 weeks per year in order to be approved to receive child-based subsidies. ECEC services for school age children should be operational for at least 7 weeks per year in order to be approved to receive child-based subsidies. The requirements for before and after school care services to operate on every school day should be abolished. 

R10.5 Governments should allow approved nannies to become an eligible service for which families can receive ECEC assistance. Assistance would not be available for use of nannies who do not meet the National Quality Standard. National Quality Framework requirements for nannies should be determined by ACECQA and should include a minimum qualification requirement of a relevant (ECEC related) certificate III, or equivalent, the same staff ratios as are currently present for family day care services, and be linked to an approved coordinator, as occurs in family day care. Assessments of regulatory compliance should be based on both random and targeted inspections by regulatory authorities. 

R10.7 The Australian Government should simplify working holiday visa requirements to make it easier for families to employ au pairs, by allowing au pairs to work for a family for up to the full 12 month term of the visa, rather than the current limit of six months per family. 

Additional needs — improving accessibility, flexibility and affordability 

F5.1 Generally, Australian children are doing well developmentally and most are well prepared to begin formal schooling. Those who are less well prepared tend to be Indigenous children, children living in socio-economically disadvantaged communities, children living in very remote areas and children from non-English speaking backgrounds. There is likely to be overlap across these groups. 

R5.2 Early intervention programs to address the development needs of children from disadvantaged backgrounds should be underpinned by research. Their impact on the development outcomes of the children attending ECEC should be subject to ongoing monitoring and evaluation, including through the use of longitudinal studies. 

F13.1 Having short-term arrangements that enable access to ECEC for children at risk of neglect and harm is an essential element of a wider solution to protect these children. Access for unlimited hours — in some cases 24/7 care — amounts to emergency care and is the responsibility of state and territory governments. 

R15.5 The Australian Government should continue to provide support for children who are assessed as ‘at risk’ to access ECEC services, funding an at risk children program that provides: • a 100 per cent subsidy for the benchmark price of ECEC services • up to 100 hours a fortnight, with exemption from the activity test • support initially for 6 weeks then in blocks of up to 26 weeks, on application by the relevant state or territory department and approval by the Department of Human Services • automatic extensions are to be provided for children for whom there is a current child protection order. Families who have had a child assessed as ‘at risk’ for a period of 6 months or more would be exempt from the activity test for on-going ECEC services for this child for a further period of up to 18 months. 

R15.6 States and territories should nominate an agency for ECEC providers to contact where the provider has identified a child as at risk and applied for the initial six weeks at risk subsidy. This state or territory agency should be responsible for assigning a case worker to the child. If assistance is required beyond the initial period, this agency should also be responsible for making any applications for extensions for assistance on behalf of the child to support their attendance at the ECEC service. The application would require approval by the Department of Human Services. ECEC providers should be required to contact the designated state or territory department contact agency within one week of applying for the six week at risk assistance. Continuation of access to the subsidy would be based on ongoing involvement by a state or territory agency with the child and their family, and approval by the Department of Human Services. The processes for providers to notify the nominated state or territory agency, and for the agency to apply for an extension of the full subsidy on behalf of a child, should be trialled to establish an effective process before being fully rolled out. 

R15.7 The Australian Government should retain the Inclusion Support Agency, Inclusion Support Subsidy, Bicultural Support, and Specialist Equipment Support elements from the Inclusion and Professional Support Program to form the core of a new Inclusion Support Program. The National Inclusion Support Subsidy Provider should also be retained. The budget should be increased for: • the Inclusion Support Agencies to allow for ‘value for money’ contracting based on the number of services and child populations, with an adjustment for level of disadvantage in the communities in their allotted district • the Inclusion Support Subsidy to allow for up to 7 hours of funding a day for up to 10 days a fortnight and paid at the certificate III award rate • Bicultural Support to allow services access to at least 20 hours of support to settle new culturally and linguistically diverse families and their children into an ECEC service. The ongoing need for Inclusion Support Agencies should be reviewed in five years. 

R13.2 The application process for the Inclusion Support Subsidy should be streamlined through: • sharing of information across government agencies to reduce the administrative burden on families and ECEC services • an upgraded and more user friendly IT portal. 

F13.2 Funding to providers has an important role to play in improving accessibility to ECEC for children who live in disadvantaged areas without access to ECEC. There is scope to improve the current Budget Based Funded Programme which delivers assistance directly to providers in disadvantaged areas. Current funding precludes new services from opening up and does not encourage existing services to transition from provider-based funding to child-based assistance. 

F13.3 Block funding is problematic for the long term sustainability of integrated services — the loss of one service (if funding for that service is not continued) can threaten the viability of other providers in the service. While the ECEC component of integrated services can be funded through mainstream ECEC funding arrangements, block funding of coordination functions may be required to realise the value of integration. Non-ECEC services should be funded through the appropriate budget portfolio. 

R13.3 Governments should consider greater use of integrated ECEC and childhood services in disadvantaged communities: • to improve accessibility for families of ECEC and other childhood services • to help identify children that are at risk of abuse or neglect or have additional needs • ensure that the necessary support services, such as health, family support and any additional early learning and development programs, are available • to improve the efficiency of related service provision. 

R15.8 The Australian Government should establish a Community Early Learning Program (CELP) to fund ECEC services for communities where the children in the community are at a high risk of development vulnerabilities. The CELP would fund the: • establishment of new services that have a five year business plan to transition to mainstream funding • operation of these and current Budget Based Funded Programme services as they transition to mainstream funding, with a declining share of funding being provided by the CELP over time • on-going support to CELP services to meet any unavoidable higher costs of supply to children after transition • activities undertaken by an ECEC service to organise and manage integration of the ECEC service with other family and child services • Indigenous Professional Support Agencies to assist CELP services in Indigenous communities in the establishment and transition of these services. The Inclusion Support Agencies are to provide these services for those CELP services that target refugee communities. These agencies would also provide advice to mainstream ECEC services on culturally relevant inclusion planning strategies. 

R15.9 Budget Based Funded (BBF) Programme services that are unable to transition even with on-going assistance should be reviewed every three years and closed if there are better alternatives available to provide ECEC services to the children attending the service. Activities (such as playgroups) in the BBF Programme that do not involve non-parental care do not fit within the ECEC non-parental care and early learning objectives and should find alternative non-ECEC sources of funding. 

Preschool — supporting universal access 

F12.1 Whether preschool is the responsibility of the states and territories or the Australian Government needs to be resolved and could usefully be a consideration of the White Paper on the Reform of the Federation. 

F12.2 Participation in a preschool program in the year before starting formal schooling provides benefits in terms of child development and a successful transition to school. An analysis of the effectiveness of the existing arrangements in improving development outcomes and evidence drawn from relevant Australian and overseas research is necessary before any decisions can be made on the value of extending the universal access arrangement to younger children. 

R12.1 Payment of a portion of the Family Tax Benefit Part A to the parent or carer of a preschool aged child should be linked to attendance in a preschool program, where one is available. 

R15.10 The Australian Government should continue to provide per child payments to the states and territories for universal access to a preschool program of 15 hours per week for 40 weeks per year. This support should be based on the number of children enrolled in state and territory government funded preschool services, including where these are delivered in a long day care service. A condition placed on the per child payments is that they should be directed by the state or territory to the approved preschool service nominated by the family. The Australian Government should reduce the benchmark price for the hours of preschool provided by a long day care centre by an equivalent amount to the per child preschool funding.   

Outside school hours care — improving the accessibility, flexibility and affordability 

R10.2 State and territory governments should proactively encourage the provision of outside school hours care on school sites. At a minimum, this should involve: • ensuring outside school hours care services receive high priority on any guidelines on access to school facilities in non-school time • placing the onus on school principals to take responsibility for ensuring there is an outside school hours care service for their students on and/or offsite if demand is sufficiently large for a service to be viable. 

R12.2 The Australian Government should ensure that any requirements on the age of children able to attend an outside school hours care service be sufficiently flexible as to enable an outside school hours care service to include, or operate primarily for, preschool age children. 

R7.2 Governments and ACECQA should remove educational and child based reporting requirements for outside school hours and vacation care services, and consider other ways to tailor the National Quality Standard to suit different service types. 

R7.6 Governments should develop and incorporate into the National Quality Framework a nationally consistent set of staff ratios and qualifications for those caring for school age children in outside school hours and vacation care services. • The minimum staff ratio for school aged care should be no stricter than 1:15. • At most, one-third of staff should be required to hold or be working towards an approved qualification. Approved qualifications may be a certificate III and could also include those from other relevant disciplines such as sport and recreation. • Outside school hours and vacation care service directors should be required to hold or be working towards at least a diploma level qualification. Removal of ECEC assistance to some providers 

R5.1 Australian Government ECEC funding should be limited to funding approved ECEC services and those closely integrated with approved ECEC services, and not be allocated to fund social services that largely support parents, families and communities. Any further Australian Government support for the Home Interaction Program for Parents and Youngsters (HIPPY) should be outside of the ECEC budget allocation. 

R9.1 In line with the broad level recommendations of the Productivity Commission’s 2010 study into the Contribution of the Not for Profit Sector, the Australian Government should remove eligibility of not-for-profit ECEC providers to Fringe Benefits Tax exemptions and rebates. State and territory governments should remove eligibility of all not-for-profit childcare providers to payroll tax exemptions. If governments choose to retain some assistance, eligibility for a payroll tax exemption should be restricted to childcare activities where it can be clearly demonstrated that the activity would otherwise be unviable and the provider has no potential commercial competitors. 

R10.3 The Australian Government should abolish the Community Support Programme. 

R10.6 The Australian Government should remove the In-Home Care category of approved care once nannies have been brought into the approved care system. 

R11.1 The Australian Government should remove the registered childcare category under the Child Care Benefit. 

R13.1 The Australian Government should remove the category of ‘financial hardship’ as a justification for receiving fully subsidised ECEC services. 

R14.1 The Australian Government should amend the Fringe Benefits Tax Act 1986 (Cth) to remove section 47(2), that is, the eligibility for Fringe Benefits Tax concessions for employer provided ECEC services. Section 47(8), which enables businesses to purchase access rights for children of their employees without this being considered an expenditure subject to the Fringe Benefits Tax should be retained but better publicised. 

Workforce participation 

F6.1 The workforce participation rate of mothers with children aged under 15 years has grown substantially in recent decades, in line with that for all women. However, the participation rate of mothers is below that of fathers and women without children. The employment rate of Australian mothers is also below the OECD average. 

F6.2 Of employed mothers with children aged under 15 years, more work part time than full time. The part-time share of employed mothers is much higher than that of fathers and women without children. Australia has a higher proportion of couple families where one parent works full time and the other part time than the OECD average. 

F6.3 Roughly 165 000 parents (on a full-time equivalent basis) with children aged under 13 years who would like to work but are not able to because they are experiencing difficulties with the costs and accessibility of suitable childcare, could potentially be added to the workforce. 

F6.4 Secondary income earners in couple families and single parent families with children under school age could face a significant disincentive to work more than 3 days a week due to high effective marginal tax rates from the cumulative impact of income tax and the withdrawal of childcare assistance, Family Tax Benefits and the Parenting Payment. 

F16.1 Reforming subsidies for early childhood education and care services on their own can only partially address disincentives for mothers to work. Greater workforce attachment can be achieved by simultaneously reforming childcare subsidies, taxation, family income support and transfer payments. Other factors that can encourage greater workforce participation of mothers include fathers being willing and able to work flexibly and take on more child caring responsibilities and having ECEC services that offer rich and engaging experiences (particularly in relation to outside school hours care). 

R6.1 The proposed White Paper on the Reform of Australia’s Tax System should include consideration of how taxation and the design of family income support and transfer payments impact on effective marginal tax rates. 

F6.5 The workforce participation of mothers of children aged under 15 years is affected by the preferences of parents to look after their own (particularly very young) children. These, in turn, can be affected by such factors as costs and availability of suitable childcare, the stresses of managing paid work and unpaid work at home, the provision of flexible work and other family-friendly arrangements by employers, the level of contact with the workplace, long-term career prospects and the effective marginal tax rates facing mothers. 

R6.2 Employer and employee associations, the Fair Work Ombudsman, the Australian Human Rights Commission and the Workplace Gender Equality Agency should all trial innovative approaches to: • increase awareness about legal rights and obligations with respect to flexible work • promote positive attitudes among employers, employees and the wider community towards parents, particularly fathers, taking up flexible work and other family-friendly arrangements. 

R6.6 Based on analysis in the Productivity Commission’s 2009 inquiry on Paid Parental Leave: Support for Parents with Newborn Children, it is unlikely that the Government’s proposed changes to the Paid Parental Leave scheme would bring significant additional benefits to the broader community beyond those occurring under the existing scheme. If the Government is seeking increased workforce participation, this may be achieved more effectively through additional funding of ECEC than through the modification of the Paid Parental Leave scheme. 

Quality assurance processes and regulation of ECEC 

R7.1 To simplify the National Quality Standard, governments and ACECQA should identify elements and standards of the National Quality Standard that can be removed or altered while maintaining outcomes for children. 

R7.8 Governments should: • urgently reconsider the design of the assessment and ratings system, giving particular consideration to finding ways to increase the pace of assessments • explore ways to determine services’ ratings so they are more reflective of overall quality • abolish the ‘Excellent’ rating, so that ‘Exceeding National Quality Standard’ is the highest achievable rating. 

R7.9 Governments, ACECQA and regulatory authorities, as applicable, should: • abolish the requirement for certified supervisor certificates • give providers more detailed and targeted guidance on requirements associated with Quality Improvement Plans, educational programming, establishing compliant policies and procedures and applying for waivers • identify and eliminate potential overlaps between the National Quality Framework and state and local government requirements • review ways that services with higher ratings (‘Exceeding National Quality Standard’) could be relieved of some paperwork requirements, where these are less important to ensuring quality given the service’s compliance history • remove the requirement for outside school hours care services operating on school facilities to provide site plans as a condition of service approval. 

R7.10 Governments should extend the scope of the National Quality Framework to include all centre and home-based services that are eligible to receive Australian Government assistance. National Quality Framework requirements should be tailored towards each care type, as far as is feasible, and minimise the burden imposed on service providers. In particular, child based educational reporting should not be required where children only attend services irregularly. 

R7.11 The quality standards in state and territory education legislation which apply to dedicated preschools should recognise those standards that are required to be satisfied under the National Quality Framework and any sources of inconsistency or duplication of requirements should be removed from the education legislation applying to preschools. 

R7.12 State and territory governments should, within two years, harmonise background checks for ECEC staff and volunteers by either: • advancing a nationally consistent approach to jurisdiction based ‘working with children checks’ as proposed in the National Framework for Protecting Australia’s Children, including mutual recognition of these checks between jurisdictions, or • implementing a single, nationally recognised ‘working with children check’. 

R7.13 Where there is an overlap with existing state and territory food safety requirements, Governments should exempt services from, or preferably remove, those requirements in the National Regulations. State and territory governments, in conjunction with Food Standards Australia New Zealand, should explore the possible exemption of childcare services from Standard 3.3.1 of the Australian food safety standards, as in New South Wales. 

R7.14 Local governments should adopt leading regulatory practices in planning for ECEC services. In particular, local governments should: • use planning and zoning policies to support the co location of ECEC services with community facilities, especially schools • use outcomes based regulations to allow services flexibility in the way they comply with planning rules, such as in relation to parking • not regulate the design or quality of any aspect of building interiors or children’s outdoor areas within the service property, where such regulation unnecessarily duplicates or extends the requirements of the National Regulations or other standards such as the Building Code of Australia • not impose regulations that interfere with the operation of the ECEC market, such as by restricting the maximum number of permitted childcare places in a service • provide clear guidelines for the assessment of development proposals in relation to ECEC services, and update these guidelines regularly. 

R7.15 State planning departments should, as in Victoria, develop flexible standard planning provisions that can be applied across local governments to ensure some level of consistency; and scrutinise amendments to local planning schemes that might seek the introduction of different standards, to guard against potentially costly requirements being imposed. 

ECEC qualifications and ratios 

F8.1 There are no significant regulatory or other impediments preventing the ECEC sector from addressing any recruitment, retention and workforce shortage issues through higher wages, better conditions and improved career opportunities. Some services have taken this approach. The use of wage subsidies to attract and retain staff is likely to be ineffective, inefficient and unsustainable. Implementing the required regulatory reforms around the NQF would increase the potential pool of eligible ECEC workers. 

R7.3 Where all children are aged 25 months and over, educator to child ratios for home based care services should be amended such that a ratio of 1 educator to 5 children is permitted for children aged from 25 months up to school age. 

R7.4 Requirements for educators in centre based services should be amended by governments such that: • all educators working with children aged birth to 35 months are, as a minimum, required to hold or be working towards at least a certificate III or equivalent and be under the supervision of at least a diploma qualified educator • services may determine the number of diploma qualified educators sufficient to supervise and support certificate III qualified educators, as is currently the case in family day care services • the number of children for which an early childhood teacher must be employed is assessed on the basis of the number of children in a service aged over 35 months. 

R7.5 Differences in educator to child ratios and staff qualification requirements for children under school age across jurisdictions should be eliminated and all jurisdictions should adopt the national requirements.

R7.7 To provide services with greater flexibility to meet staffing requirements: • all governments should amend the National Law and any other relevant legislation to allow ACECQA further flexibility in the way it approves qualifications — in particular to allow ACECQA to approve qualifications on a conditional or restricted basis • all governments should allow a diploma qualified educator to be replaced by a certificate III qualified educator for short irregular absences of up to half a day per week • ACECQA should continue to explore ways to make the requirements for approving international qualifications simpler and less prescriptive in order to reduce obstacles to attracting appropriately qualified educators from overseas • the New South Wales and South Australian Governments should allow a three month probationary hiring period in which unqualified staff may be included in staff ratios before beginning a qualification, as was recently adopted in all other jurisdictions. 

R8.1 Governments should ensure, through regulatory oversight and regular audits by the Australian Skills Quality Authority, that Registered Training Organisations maintain consistently high quality standards in their delivery of ECEC-related training. Where Registered Training Organisations are unable to rectify identified non-compliant processes, the Australian Skills Quality Authority should employ appropriate regulatory responses including the cancelling of registration. 

R8.2 ECEC employers should accept primary responsibility for the funding and support of ongoing professional development. • Funding for Professional Support Coordinators should be discontinued. That part of their function which relates to assisting services in the inclusion of children with additional needs should be provided through an inclusion support program. • Funding for the Long Day Care Professional Development Program should not be extended once the current funding arrangements have expired. 

R8.3 To retain skills and experience in those services being brought within the scope of the NQF, staff employed in the service at the time of transitioning to the NQF who have a minimum of five recent years of relevant practical experience should be considered as meeting the NQF minimum qualification and be included in the staff ratio requirements. Ongoing support for evaluation and ECEC policy assessment 

R17.1 The Australian Government should establish a program to link information for each child from the National ECEC Collection to information from the Child Care Management System, the Australian Early Development Census, and NAPLAN testing results to establish a longitudinal database. Where possible, this should also be linked to other key administration data sets and Censuses. A confidentialised file should be made available for statistical, research, policy analysis and policy development purposes. The ability of researchers to access unit record information should be permitted subject to stringent privacy and data protection requirements. The Australian Government agency that is the custodian of the Child Care Management System should provide a publicly available extract from the database each year for interested parties at a sufficiently detailed geographic level for planning purposes. 

R17.2 Centrelink and the Department of Human Services should clarify in the claim form for ECLS that parents have the ability to authorise ECEC providers to enquire or act on their behalf in relation to their claim. 

R17.3 The Department of Education should establish a complaints mechanism for parents to lodge a complaint about an approved ECEC provider with regard to pricing, accessability, and any other ECEC matter. The mechanism should include a referral of the complaint to the appropriate Australian Government or state and territory government agency. 

R17.4 The Australian Government should review the operation of the new ECEC funding system and regulatory requirements after they have been implemented. In particular: • within 2 years of introducing subsidies based on a benchmark price, any adverse unintended outcomes of the approach should be identified and resolved • within 3 years of extending the coverage of the National Quality Framework (including to current block funded services and to nannies), ACECQA should prepare a report identifying any legislative, regulatory or procedural difficulties arising from the wider coverage of the National Quality Framework • within 5 years of implementing the new ECEC funding system and regulatory requirements, the Australian Government should undertake a public review of the effectiveness of the revised arrangements.

Commonwealth-NSW Monis Review

The report of the Joint Commonwealth - New South Wales Review of the Martin Place Siege has been released, with a call to "maintain broadly the current balance in our existing regulatory and legislative framework".

The report states that

At around 8.33 am on 15 December 2014, Man Haron Monis walked into the Lindt Café, on the corner of Martin Place and Phillip Street, in the heart of Sydney’s commercial district. Shortly thereafter, he produced a gun and ordered that the customers and staff be locked inside as hostages. After a standoff lasting around 17 hours, the siege ended in gunfire. Three people died: two hostages and Monis. Several of the other hostages sustained injuries. The Martin Place siege has deeply affected the community.

The Review analysed the events that led up to the siege and the range of interactions Monis had with agencies including the criminal justice system, beginning with his arrival in Australia. It asked:

• were the decisions of government agencies in respect of Monis reasonable given the laws and policies in place when the decisions were made? 

• should decision-makers have had other information before them when making their decisions?

Overall, the Review has found that the judgments made by government agencies were reasonable and that the information that should have been available to decision-makers was available.

Changes to laws and policies in relation to national security involve judgments about public safety and personal liberty – i.e. the risk framework within which society operates. We expect that public discussion and consultation about these judgments will continue over the coming months as further information about the circumstances of the conduct of the Martin Place siege operation becomes available.

However, the Review has concluded that some modest changes are needed to our laws and government processes to mitigate the public security risks exposed by this case. Some of these changes are already being made. For example, new bail arrangements have now been introduced in New South Wales. New programmes to counter violent extremism in the community are being developed. Other initiatives, such as a review of immigration policies, laws and capabilities in relation to visa applications should be pursued.

The Review’s recommendations would maintain broadly the current balance in our existing regulatory and legislative framework.

The Review’s decision to not propose steps beyond this is based on our view that introducing substantial further controls involves a larger choice about the sort of society we wish to live in and is properly the province of the public and our elected representatives.

Any further controls would be based on judgments as to whether increases in policing, surveillance and controls and the related extra burden on the taxpayer and intrusions into Australians’ lives would make us appreciably safer.

Highlights are as follows

National Security threat level

At the time of the Martin Place siege, the general terrorism threat level was High – terrorist attack is assessed as likely. The threat level had been raised to High on 12 September 2014. While this was not based on any indication a terrorist attack in Australia was imminent, it recognised that the likelihood of such an attack had increased.

The decision to raise the threat level related to a range of factors indicating an escalation in the threat environment – in particular, increasing numbers of Australians connected with, or inspired by, terrorist groups such as the Islamic State of Iraq and the Levant, Jabhat al-Nusra, and al-Qa’ida which have a desire to attack Western countries, including Australia.

Law enforcement and security agencies’ assessments of Monis

Monis was the subject of many law enforcement and security investigations and assessments over the period of his residence in Australia. None of the results of these investigations, or the continuous assessment of information related to Monis in the intervening periods, provided any indication he had the intention to commit an act such as the Martin Place siege.

Of note, in the period April 2008 to January 2009, ASIO conducted a thorough investigation of Monis to determine if he was of concern from a terrorism threat perspective. It concluded that Monis:

• was not involved in politically motivated violence and had not tried to incite communal violence 

• had not expressed an intention to commit politically motivated violence 

• was not in significant contact with known individuals or groups of security concern.

In addition, none of Monis’s immediate circle of acquaintances were themselves in contact with known individuals or groups of security concern. ASIO’s final assessment of Monis at the conclusion of the 2008 09 investigation was that Monis was not a threat to national security.

The conclusion of this investigation did not mean that ASIO no longer paid attention to Monis. Indeed, is should be emphasized that the notion that ASIO has some sort of a ‘watchlist’ whereby individuals on the list are subject to scrutiny and individuals off the list are not, is incorrect. ASIO will always investigate national security related information that it receives whether that information relates to an old target, an existing target or a potential new target.

In Monis’s case, following the conclusion of the 2008-09 investigation, ASIO and police agencies continued to assess all new information received on Monis. He remained the subject of consideration and information exchange in the NSW Joint Counter-Terrorism Team due to subsequent National Security Hotline referrals, active social media presence and progress of non-national security-related criminal investigations. He was the subject of Joint Counter Terrorism Team discussions on numerous occasions between 2008 and 2014.

Criminal investigations of Monis undertaken by AFP and NSW Police Force, while not undertaken on national security grounds, also provided coverage of Monis over following years. None of these investigations identified any information to indicate Monis had either a desire or an intent to undertake an act of terrorism in Australia.

The National Security Hotline received 18 calls in relation to Monis between 9 December 2014 and 12 December 2014. All of these 18 calls were complaints about the offensive nature of the content of Monis’s public Facebook page. None of the calls related to any intentions or statements regarding a pending attack – imminent or otherwise.

Importantly, these Hotline reports were all considered by ASIO, AFP and, when deemed relevant to NSW, the NSW Police Force, prior to the siege. All three agencies considered the Facebook posts contained no indications of an imminent threat. The postings were not assessed to meet the threshold for prosecution under new ‘advocacy of terrorism’ legislation.

Given his long history of provocative, attention seeking behaviour and unreliable or false claims, the Review was alert to the possibility that ASIO or the police might actually have been complacent or even dismissive about Monis. There was no evidence this was the case. Each time security or law enforcement agencies received new information, it was assessed in accordance with their policies and procedures.

The Review found that right up until the siege, and not withstanding their familiarity with Monis, ASIO and law enforcement agencies never found any information to indicate Monis had the intent or desire to commit a terrorist act. This included consideration of Monis’s known activities and statements in the period leading up to the siege. While his language and sentiments were offensive, they were not exceptional, either in terms of his previous conduct or other material which is readily available on social media and elsewhere.

Monis was assessed by ASIO in early December 2014. On the basis of the information available at the time, he fell well outside the threshold to be included in the 400 highest priority counter-terrorism investigations. He was only one of several thousand people of potential security concern.

Arrival, Protection Visa, Citizenship

Monis arrived in Australia on a Business Visa on 28 October 1996. Within a month he had sought asylum in Australia.

Over the course of the next eight years he was granted a Bridging Visa (1996), a Protection Visa (August 2000) and Australian citizenship (October 2004). Monis was interviewed by ASIO several times over this period as part of security assessments undertaken for immigration purposes. Ultimately, he was found not to be a risk to national security.

Decisions made to grant Monis visas and Australian citizenship were made in accordance with the laws, policy and procedures of the time. The Review was advised by the Department of Immigration and Border Protection (Immigration) that if the Monis situation presented itself again today, it seems likely that a visa and citizenship would still be granted.

The Review notes that the establishment of a single Department of Immigration and Border Protection with an Australian Border Force will support improvements in border security. The Review also notes that as part of this merger Immigration will review its internal connectivity and information sharing processes, and identify key policy and legislative changes necessary to support decisions on whether to grant an initial visa, subsequent visas and, citizenship. The Review sees this as a key issue.

Social support

Monis received government funded income support for about seven and a half of the 18 years he lived in Australia. He appears to have supported himself through a variety of jobs and businesses during the other eleven years.

He first received income support through the Asylum Seeker Assistance Scheme, and later through both Newstart Allowance and Austudy. Monis was generally a compliant income support client. The Review did not find evidence he attempted to defraud welfare, and did not receive welfare while in jail.

Monis received treatment at a community mental health centre in 2010 and 2011. The Health Records and Information Privacy Act 2002 (NSW) prohibits the Review from releasing details of Monis’s medical history. That said, the Review has had access to these records and they have informed the judgements reached in the Review. The NSW Chief Psychiatrist has reviewed the medical documentation and concluded that at no time in his multiple encounters with mental health professionals was Monis assessed to represent a potential risk to others or to himself, and at no time was it necessary to admit him to hospital for treatment of mental illness, or for him to receive coercive or more restrictive care.

NSW Justice System

In July 2011, Monis was charged with intimidating his ex-partner (now deceased). The police made a provisional Apprehended Domestic Violence Order against Monis and this was continued by the court on an interim basis. A final Apprehended Domestic Violence Order to protect his ex-partner was sought by NSW Police Force, but not supported by the court and the charges were dismissed.

Monis was on bail for serious violent offences at the time of the siege. He had been granted bail on charges of being an accessory before (and after) the murder of his estranged partner who died on 21 April 2013. He had also been granted bail in relation to charges for numerous sexual offences.

Monis encountered the victims of his alleged sexual offences while presenting himself as a spiritual healer between 2002 and 2010.

The bail decisions in relation to Monis had been carefully scrutinised by police and prosecuting authorities. Consideration had been given to challenging the decisions, however, under the law in force at the time, and given the circumstances of Monis’s case, it was considered that there was not sufficient basis for such challenges to be successful.

NSW bail laws have undergone an intensive period of reform during the last two years and the effectiveness of these laws continues to be closely monitored. New bail laws, which came into force on 28 January 2015, include a strict ‘show cause’ requirement before bail can be granted in cases where serious charges are alleged. Bail laws have been strengthened since the decisions to grant Monis bail were made. The Coroner will examine how Monis came to be granted bail for the charges he was facing at the time of the siege and how police and prosecuting authorities responded to this.

The Review did not consider bail legislation in jurisdictions beyond New South Wales. Nevertheless, the Review recommends that other jurisdictions may wish to consider Recommendations 4 and 5.

Access to firearms

Monis entered Martin Place with a pump action shotgun. It was short, having been sawn off at the barrel and at the end. The Coroner has announced that his inquiry will examine in detail the gun used by Monis. On the information available to the Review, it appears that the firearm used by Monis may have entered Australia lawfully and became a ’grey market’ firearm when not returned as part of the 1996 National Buy Back program. Monis was at no time issued a firearms licence, and at no time did he legally own or import a firearm.

He did hold a security guard licence from 1997 to 2000 which would have allowed him to carry a pistol while on duty from March to June 1997. Relevant laws were subsequently changed and from 1 July 1997, Monis would have no longer been able to carry a pistol in his capacity as a security guard.

Through its considerations of the issues in this area, the Review has identified shortcomings in the accuracy and consistency of firearms data in Australia. The Review recommends that State and Territory police forces should conduct an urgent audit of their firearms data holdings before the National Firearms Interface is operational where this has not already occurred.

The Review understands that Monis used an illegal firearm. The Australian Crime Commission has advised there are in the order of 250,000 illegal firearms in Australia. The Review recommends that the Commonwealth and the States and Territories should give further consideration to measures to deal with illegal firearms. Information sharing and coordination

Monis was well known to security and police agencies. He had been investigated a number of times and successfully convicted on 12 postal charges. He had met with police and ASIO representatives on numerous occasions and these agencies, along with others, held hundreds of thousands of pages of information on him. Relevant information was shared in a timely and appropriate fashion between the various agencies.

Within the time available to it the Review did not identify within Commonwealth or NSW systems any information which should have led to different decisions by agencies. The information that was available was shared effectively between national security agencies and between Commonwealth and State and Territory agencies. Given the scale of the task facing law enforcement and security agencies, the Review accepts the need for prioritisation of counter-terrorism efforts as essential. Not every lead or concern can or should be treated as a top priority.

The Review supports new measures currently being developed to identify and respond to individuals who may be susceptible to radicalisation but who do not meet the threshold for investigation on national security or criminal grounds.

The Review recommends that all States and Territories review relevant legislation, in particular with respect to privacy and health, to ensure appropriate access by ASIO.

Preventive measures – national security legislative powers

While Monis was consistently on the radar of national security agencies from the time he arrived in Australia, at no point did he do or say anything which would have enabled him to be successfully charged with a terrorism offence under the law.

Control orders and preventative detention orders deny an individual their liberty based on a suspicion that an offence may be committed rather than based on an actual offence. The threshold for use of these orders is therefore very high and Monis’s actions never reached it. To date, control orders have only been used four times and preventative detention orders have been used three times.

Public Communication

Public communication during and immediately after the siege was conducted effectively and in accordance with relevant protocols. There was a constant flow of relevant information to the public.

Public safety was properly addressed, and the public received timely messages from political leaders and NSW authorities. The media was responsible, and effective community outreach helped to ensure there was no subsequent significant community backlash.

Identity

Monis interacted with Government agencies under a significant range of identities, aliases and titles. His multiple identities were not a barrier to information exchange between agencies, nor did he use them to inappropriately access social entitlements. However, the Review has made recommendations for general improvement in this area.

The specific recommendations regarding identity are -

16. Agencies should adopt name-based identity checks to ensure that they are using the National Identity Proofing Guidelines and the Document Verification Service, and by improving arrangements for sharing formal name change information between Commonwealth and State bodies (timing and budgetary impacts to be identified by all jurisdictions).

17. Agencies that issue documents relied upon as primary evidence of identity (e.g. drivers’ licences, passports, visas) should explore the possibility of strengthening existing name-based checking processes through greater use of biometrics, including via the forthcoming National Facial Biometric Matching Capability.

Those recommendations reflecvt the following comments

Man Haron Monis was born Mohammad Hassan Manteghi in Iran in 1964 and this was the name on his travel documentation when he entered Australia on 28 October 1996. NSW has strong laws governing changing a person’s name. Three changes of name are permitted (unless an exemption is granted) and protocols are in place to share change of name information between NSW Registry of Births, Deaths and Marriages and the NSW Police Force. Common law allows a person to use a new name without formally registering a change with the NSW Registry of Births, Deaths and Marriages, although many government agencies will require evidence of a formal registered change of name.

On 16 September 2002, Monis formally changed his name to Michael Hayson Mavros. On 21 November 2006 he again formally changed his name to Man Haron Monis. The Review has also found that Monis was known by as many as 31 aliases, which were either his legal names or various combinations around a theme of names. However, the Review has not found that any of these aliases were used to defraud, evade or deceive any government agencies. No evidence has been found to indicate that he registered other names in other States or Territories.

While Monis used his current legal name when dealing with NSW agencies, he used aliases when dealing with other agencies such as Australia Post, Australian Business Registry and the Australian Electoral Commission as he was not always required to prove his ‘legal name’ with formal documentation.

Some automated information sharing did occur between agencies such as the NSW Police Force, Roads and Maritime Services and the NSW Registry of Births, Deaths and Marriages. These exchanges related to identity information such as name changes, licence information and car registration details. Despite these exchanges, Monis was able to provide non-formal name details to agencies indicating that more robust checks on identity are needed in Commonwealth and State and Territory government agencies.

Work to improve identity checking has already begun. The Document Verification Service (established in 2009) is a secure online system that allows government agencies to verify information on evidence of identity documents (visa, citizenship, change of name, birth, and marriage certificates, Medicare, Passports, Immigration Cards, Registry by Decent) against the issuing agency. The National Identity Proofing Guidelines (issued in October 2014) set out procedures for collecting and verifying evidence of a person’s identity, based on varying, risk-based levels of assurance.

The Commonwealth has also developed the National Facial Biometric Matching Capability to help mitigate the vulnerabilities in name-based identity checks. These systems have not yet been adopted by all Commonwealth or States and Territories government agencies.