Bioprinting

'To Bioprint or Not to Bioprint' by Jasper L. Tran comments

Bioprinting is the upcoming emerging technology, but it has not made its move into the legal field yet — there is currently no legal scholarship written on bioprinting. Dr. Anthony Atala recently gave two TED talks, Growing New Organs and Printing a Human Kidney, presenting that bioprinting — printing mammalian or human body parts — is real and may be widely available in the near future. We live in a digitization age. Computers and the Internet digitize information. While 3D printing digitizes tangible goods, bioprinting digitizes human body parts, and potentially human. Although digitization offers many benefits, it also brings along challenges, i.e. causing disruption to both business and law.

Research involving bioprinted products used inside and outside a human body triggers different ethical concerns. For example, using bioprinted products inside a human body may trigger biosafety concerns and violate human dignity. Other ethical concerns include the questionable sources of the biomaterials’ as well as how to eliminate their “waste.” Although most of these ethical concerns are not unique to bioprinting, regulating bioprinting will foreseeably differ from regulating 3D printing.

Recent scholarship on regulating 3D printing implicitly presumes the same regulation should apply to printing from both non-biological materials and biological materials. However, this presumption is mistakenly grounded. Technically, bioprinting is a subcategory of 3D printing. However, printing from biological materials presents different public policy considerations than printing from non-biological materials. When experimenting with mammalian genetic materials, emerging technological and scientific advances attract strong political, regulatory and ethical debates. The societal scrutiny is further heightened when the genetic materials are from humans.

One analyst group speculates a global debate in 2016 of whether to regulate bioprinting or ban it altogether. Banning bioprinting altogether is an easy solution, but it will stop technology and science from progressing. The more difficult question is how the law should regulate bioprinting. Current regulations on synthetic biology are not sufficiently comprehensive to regulate bioprinting because bioprinting moves synthetic biology’s production out of the laboratory to everyone’s home. After analyzing different ways to regulate bioprinting, this paper offers a novel framework to regulate bioprinting: except for research and life-threatening emergency, the legislature and the medical profession should jointly regulate access to bioprinting’s blueprints, sources, and bioprinters.

This paper proceeds in five parts. Part I provides the scientific facts and current regulation on 3D printing, synthetic biology and bioprinting. Part II analyzes and synthesizes the rationales for regulating bioprinting by comparing it to 3D printing, synthetic biology, stem cell research, organ transplantation and cloning. Part III explores different ways to regulate bioprinting. From analyzing different ways to regulate bioprinting, Part IV proposes regulating bioprinting through joint efforts of the legislature and the medical profession to maximize bioprinting’s advantages while also considering the rationale behind bioprinting. Part IV further addresses the proposal’s advantages and implications, then rebuts some of the common counterarguments against this proposal. Part V concludes.

Agency

'On the Agency of the Non-Human World: A View from Latin America' by Angelica Maria Bernal and Elva Orozco-Mendoza at the American Political Science Association Meeting, Washington, DC 28 August 2014 argues

Do non-human entities have agency in politics? Can they be part of the political? In recent years, scholars such as Jane Bennett and Bruno Latour have challenged traditional binaries between nature-culture, subject-object to articulate the complex relations between humans and the non-human world, granting in turn the agency of the later. In this paper, we reconsider the relationship between human and non-human entities and their respective and interrelated agencies by interrogating the agency of the non-human to engage with the above questions.

We situate our interrogation within two recent cases surrounding the agency of the non-human in the context of Latin American politics. The first case surrounds anti-feminicide protests emerging Ciudad Juarez and Chihuahua, Mexico. The second case concerns recent protests against petroleum extraction in one of the most biologically sensitive areas in the world: Yasuni Biosphere Reserve in Ecuador. In the first case, mothering organizations led by the mothers of feminicide victims in these cities deployed a unique repertoire of protests, wherein objects become not simply vehicles for the protests but contained an agency which exceeded the human one that originally brought it into being, transforming the landscape of the city through a potent funeralization that challenged state inaction and the impunity of perpetrators. In the second case, protests by indigenous activists and their allies sought to challenge the state’s abandoning of a moratorium on petroleum extraction in this Amazonian reserve by not only taking to the streets, but also continuing to advance the rights of Nature, or Pachamama, as not only a subject but an agent of rights. Bringing to bear the insights of Bennett and Latour, into conversation with those of Marisol de la Cadena, Judith Butler, and Isabelle Stengers, we argue for the rethinking the agency of the non-human not simply as externalities to the human, or in their thingness or as use objects, but as beings in themselves, existing according to non-instrumental logics that exceed human agency and can indeed contain it to constitute politics and new political forms.

PJCIS 'Metadata Bill' report

The 362 page Advisory Report [PDF] by the Parliamentary Joint Committee on Intelligence and Security regarding the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (Cth) features the following recommendations, with the Government presumably ignoring several recommendations (eg RR 33, 38) and the Bill  becoming law in the near future.

R1 The Committee recommends that the Government provide a response to the outstanding recommendations from the Committee’s 2013 Report of the Inquiry into Potential Reforms of Australia’s National Security Legislation by 1 July 2015.

The data set

R2 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to include the proposed data set in primary legislation.

R3 To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare items for inclusion in the data set under the following conditions:

• The declaration ceases to have effect after 40 sitting days of either House, 

• An amendment to include the data item in legislation should be brought before the Parliament before the expiry of the 40 sitting days, and 

• The amendment should be referred to the Parliamentary Joint Committee on Intelligence and Security with a minimum of 15 sitting days for review and report.

R4 The Committee recommends that the proposed data set published by the Attorney-General’s Department on 31 October 2014 be amended to incorporate the recommendations of the Data Retention Implementation Working Group.

R5 The Committee recommends that the Explanatory Memorandum to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to make clear that service providers are not required to collect and retain customer passwords, PINs or other like information.

R6 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to make clear that service providers are only required to retain telecommunications data to the extent that such information is, in fact, available to that service provider.

R7 The Committee recommends that the Explanatory Memorandum to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to make clear that service providers are not required to keep web-browsing histories or other destination information, for either incoming or outgoing traffic.

R8 The Committee recommends that the Explanatory Memorandum to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to provide greater clarity in defining ‘sessions’ in proposed new subsection 187A(7) of the Bill.

Data retention period

R9 The Committee recommends that the two-year retention period specified in section 187C of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be maintained.

R10 The Committee recommends that the Explanatory Memorandum to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 clarify the requirements for service providers with regard to the retention, de-identification or destruction of data once the two year retention period has expired.

Application to particular services, and implementation, cost and funding arrangements

R11 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to define the term ‘infrastructure’ in greater detail, for the purposes of paragraph 187A(3)(c).

R12 The Committee recommends that the Attorney-General’s Department and national security and law enforcement agencies provide the Parliamentary Joint Committee on Intelligence and Security with detailed information about the impact of the exclusion of services provided to a single area pursuant to subparagraph 187B(1)(a)(ii) as part of the Committee’s review of the regime, pursuant to section 187N of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

R13 The Committee recommends that proposed section 187B in the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to require the Communications Access Co-ordinator to consider the objects of the Privacy Act 1988 when considering whether to make a declaration under proposed subsection 187B(2). If there is any uncertainty or a need for clarification, the Co-ordinator should consult with the Australian Privacy Commissioner on that issue before making such a declaration. Further, the Co-ordinator should be required to notify the Parliamentary Joint Committee on Intelligence and Security of any declaration made under 187B(2) as soon as practicable after it is made

R14 To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare additional classes of service providers under the following conditions:

• The declaration ceases to have effect after 40 sitting days of either House, 

• An amendment to include the class of service provider in legislation should be brought before the Parliament before the expiry of the 40 sitting days, and 

• The amendment should be referred to the Parliamentary Joint Committee on Intelligence and Security with a minimum of 15 sitting days for review and report.

R15 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 and accompanying Explanatory Memorandum be amended to enable the Communications Access Co-ordinator to refer any disputes over proposed implementation plan exemptions or variations to the Australian Communications Media Authority for determination.

R16 The Committee recommends that the Government make a substantial contribution to the upfront capital costs of service providers implementing their data retention obligations. When designing the funding arrangements to give effect to this recommendation, the Government should ensure that an appropriate balance is achieved that accounts for the significant variations between the services, business models, sizes and financial positions of different companies within the telecommunications industry. In particular, the Committee recommends that the Government ensure that the model for funding service providers:

• provides sufficient support for smaller service providers, who may not have sufficient capital budgets or operating cash flow to implement data retention, and privacy and security controls, without up-front assistance; 

• minimises any potential anti-competitive impacts or market distortions; 

• accounts for the differentiated impact of data retention across different segments of the telecommunications industry; 

• incentivises timely compliance with their data retention obligations; 

• provides appropriate incentives for service providers to implement efficient solutions to data retention; 

• does not result in service providers receiving windfall payments to operate and maintain existing, legacy systems; and 

• takes into account companies that have recently invested in compliant data retention capabilities in anticipation of the Bill’s passage.

Authority to access stored communications and telecommunications data

R17 The Committee recommends that criminal law-enforcement agencies, which are agencies that can obtain a stored communications warrant, be specifically listed in the Telecommunications (Interception and Access) Act 1979. To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare an authority or body as a criminal law-enforcement agency subject to the following conditions:

• the declaration ceases to have effect after 40 sitting days of either House; 

• an amendment to specify the authority or body as a criminal law-enforcement agency in legislation should be brought before the Parliament before the expiry of the 40 sitting days; and 

• the amendment should be referred to the Parliamentary Joint Committee on Intelligence and Security with a minimum of 15 sittings days for review and report.

Further, consistent with the existing provisions of the Bill, the Attorney-General must have regard to the factors listed in proposed paragraphs 110A(4)(b)-(f), and must also be satisfied on reasonable grounds that the functions of the agency include investigating serious contraventions.

R18 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, or its Explanatory Memorandum, or both, be amended to provide that the characteristics of a binding scheme referred to in proposed subparagraph 110A(4)(c)(ii) of the Telecommunications (Interception and Access) Act 1979 include a mechanism:

• for monitoring the authority or body’s compliance with the scheme; and 

• to enable individuals to seek recourse if their personal information is mishandled.

The Committee notes that the Australian Privacy Commissioner currently has these functions in relation to Commonwealth agencies, and some States have privacy commissions which would be well placed to perform these functions within these jurisdictions. Other jurisdictions may need to expand the functions of their existing oversight bodies, or establish new oversight arrangements to meet these requirements.

R19 The Committee recommends that the Attorney-General’s Department review whether:

• the agencies which may access the content of communications (either by way of interception warrants or stored communications warrants) under the Telecommunications (Interception and Access) Act 1979 should be standardised, and 

• the Attorney-General’s declaration power contained in proposed section 110A of the Telecommunications (Interception and Access) Act 1979 in respect of criminal law-enforcement agencies should be adjusted accordingly.

The Committee further recommends that the Attorney-General report to Parliament on the findings of the review by the end of the implementation phase of the data retention regime. 

R20 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to list the Australian Securities and Investments Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC) as criminal law-enforcement agencies under proposed section 110A of the Telecommunications (Interception and Access) Act 1979.

R21 The Committee recommends that enforcement agencies, which are agencies authorised to access telecommunications data under internal authorisation, be specifically listed in the Telecommunications (Interception and Access) Act 1979. To provide for emergency circumstances the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare an authority or body as an enforcement agency subject to the following conditions:

•  the declaration ceases to have effect after 40 sitting days of either House; 

• an amendment to specify the authority or body as an enforcement agency in legislation should be brought before the Parliament before the expiry of the 40 sitting days; and 

• the amendment should be referred to the Parliamentary Joint Committee on Intelligence and Security with a minimum of 15 sitting days for review and report.

Further, consistent with the existing provisions of the Bill, the Attorney-General must have regard to the factors listed in proposed paragraphs 176A(4)(b)-(f), and must also be satisfied on reasonable grounds that the functions of the agency include enforcement of the criminal law, administering a law imposing a pecuniary penalty, or administering a law relating to the protection of the public revenue.

R22 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, or the Explanatory Memorandum, or both, be amended to provide that the characteristics of a binding scheme referred to in proposed subparagraph 176A(4)(c)(ii) of the Telecommunications (Interception and Access) Act 1979 include a mechanism:

• for monitoring the authority or body’s compliance with the scheme; and 

• to enable individuals to seek recourse if their personal information is mishandled.

The Committee notes that the Australian Privacy Commissioner currently has these functions in relation to Commonwealth agencies, and some States have privacy commissions which would be well placed to perform these functions within these jurisdictions. Other jurisdictions may need to expand the functions of their existing oversight bodies, or establish new oversight arrangements to meet these requirements.

R23 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to prohibit civil litigants from being able to access telecommunications data that is held by a service provider solely for the purpose of complying with the mandatory data retention regime. To enable appropriate exceptions to this prohibition the Committee recommends that a regulation making power be included. Further, the Committee recommends that the Minister for Communications and the Attorney-General review this measure and report to the Parliament on the findings of that review by the end of the implementation phase of the Bill.

R24 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to make clear that individuals have the right to access their personal telecommunications data retained by a service provider under the data retention regime. Telecommunications service providers should be able to recover their costs in providing such access, consistent with the model applying under the Privacy Act in respect of giving access to personal information.

R25 The Committee recommends that section 180F of the Telecommunications (Interception and Access) Act 1979 be replaced with a requirement that, before making an authorisation under Division 4 or 4A of Part 4-1 of the Act, the authorised officer making the authorisation must be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate. In making this decision the authorised officer should be required to have regard to:

• the gravity of the conduct being investigated, including whether the investigation relates to a serious criminal offence, the enforcement of a serious pecuniary penalty, the protection of the public revenue at a sufficiently serious level or the location of missing persons; 

• the reason why the disclosure is proposed to be authorised; and 

• the likely relevance and usefulness of the information or documents to the investigation.

R26 The Committee acknowledges the importance of recognising the principle of press freedom and the protection of journalists’ sources. The Committee considers this matter requires further consideration before a final recommendation can be made. The Committee therefore recommends that the question of how to deal with the authorisation of a disclosure or use of telecommunications data for the purpose of determining the identity of a journalist’s source be the subject of a separate review by this Committee. The Committee would report back to Parliament within three months. In undertaking this inquiry, the Committee intends to conduct consultations with media representatives, law enforcement and security agencies and the Independent National Security Legislation Monitor. The review will also consider international best practice, including data retention regulation in the United Kingdom.

R27 The Committee recommends that the Telecommunications (Interception and Access) Act 1979 be amended to require agencies to provide a copy to the Commonwealth Ombudsman (or Inspector General of Intelligence and Security (IGIS) in the case of ASIO) of each authorisation that authorises disclosure of information or documents under Chapter 4 of the Act for the purpose of determining the identity of a journalist’s sources. The Committee further recommends that the IGIS or Commonwealth Ombudsman be required to notify this Committee of each instance in which such an authorisation is made in relation to ASIO and the AFP as soon as practicable after receiving advice of the authorisation and be required to brief the Committee accordingly.

R28 The Committee recommends that the Attorney-General’s Department oversee a review of the adequacy of the existing destruction requirements that apply to documents or information disclosed pursuant to an authorisation made under Chapter 4 of the Telecommunications (Interception and Access) Act 1979 and held by enforcement agencies and ASIO. The Committee further recommends that the Attorney-General report to Parliament on the findings of the review by 1 July 2017.

Safeguards and oversight

R29 The Committee recommends that the Government consider the additional oversight responsibilities of the Commonwealth Ombudsman set out in the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 and ensure that the Office of the Commonwealth Ombudsman is provided with additional financial resources to undertake its enhanced oversight responsibilities.

R30 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to require the Parliamentary Joint Committee on Intelligence and Security to commence its review no later than the second anniversary of the end of the implementation period. The Committee considers it is desirable that a report on the review be presented to the Parliament no later than three years after the end of the implementation period.

R31 At the time of the review required to be undertaken by the Parliamentary Joint Committee on Intelligence and Security under proposed section 187N of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, the Committee recommends that the Attorney-General request the Committee to examine the following issues:

• the effectiveness of the scheme, 

• the appropriateness of the dataset and retention period, 

• costs, 

• any potential improvements to oversight, 

• regulations and determinations made, 

• the number of complaints about the scheme to relevant bodies, and 

• any other appropriate matters.

To facilitate the review, the Committee recommends that agencies be required to collect and retain relevant statistical information to assist the Committee’s consideration of the above matters. The Committee also recommends that all records of data access requests be retained for the period from commencement until the review is concluded. Finally the Committee recommends that, to the maximum extent possible, the review be conducted in public.

R32 The Committee recommends that the Attorney-General coordinate the provision of a standing secondee or secondees to the secretariat of the Parliamentary Joint Committee on Intelligence and Security, in recognition of the additional oversight and review requirements associated with the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 and the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

R33 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to require the annual report prepared under section 187P to include:

• costs of the scheme, 

• use of implementation plans, 

• category of purpose for accessing data, including a breakdown of types of offences, 

• age of data sought, 

• number of requests for traffic data, and 

• number of requests for subscriber data.

The Committee also recommends that the Attorney-General’s Department provide the Committee with an annual briefing on the matters included in this report.

R34 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to provide that the Committee may inquire into any matter raised in the annual report prepared under proposed section 187P, including where this goes to a review of operational matters. Legislative change to the Intelligence Services Act 2001 should be implemented to reflect this changed function. The Committee further recommends that the Commonwealth Ombudsman and Inspector-General of Intelligence and Security provide notice to the Committee should either of them hold serious concerns about the purpose for, or the manner in which, retained data is being accessed.

R35 Having regard to the regulatory burden on small providers with an annual turnover of less than $3 million, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to require all service providers to be compliant, in respect of retained data, with either the Australian Privacy Principles or binding rules developed by the Australian Privacy Commissioner.

R36 The Committee recommends that the Government enact the proposed Telecommunications Sector Security Reforms prior to the end of the implementation phase for the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.

R37 The Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended to require service providers to encrypt telecommunications data that has been retained for the purposes of the mandatory data retention regime. To give effect to this recommendation, the Committee recommends that the Data Retention Implementation Working Group develop an appropriate standard of encryption to be incorporated into regulations, and that the Communications Access Co-ordinator be required to consider a provider’s compliance with this standard as part of the Data Retention Implementation Plan process. Further, the Communications Access Co-ordinator should be given the power to authorise other robust security measures in limited circumstances in which technical difficulties prevent encryption from being implemented in existing systems used by service providers.

R38 The Committee recommends introduction of a mandatory data breach notification scheme by the end of 2015.

R39 The Committee recommends that, following consideration of the recommendations in this report, the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be passed.

Update

The Government released its response - accepting all 39 recommendations late on 3 March 2015

Apotex

'Hippocratic obligation to shareholder profit? Medical treatment patents and the Australian High Court in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50' by Tim Vines in (2014) 21(4) Journal of Law and Medicine 797-809 comments

The method of treatment of suffering in patients, including through surgery and the administration of therapeutic drugs, are essential features of medical professionalism. Few, if any practitioners committed to developing the core professional virtue of loyalty to relief of patient suffering through consistently implementing the basic principles of medical ethics, would consider that such beneficial methods of practice are, or should be, the subject of a patent--requiring the practitioner utilising them to pay a royalty or risk infringement proceedings. Indeed a formal opinion of the American Medical Association declares "the use of patents, trade secrets, confidentiality agreements, or other means to limit the availability of medical procedures places significant limitation on the dissemination of medical knowledge, and is therefore unethical". Yet this could be the direction in which Australian patent law is heading. The decision of the High Court of Australia in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50, upholding a patent over a method of using a known drug to prevent or treat psoriasis, may ultimately force practitioners to re-consider whether their basic ethical obligations to patients are secondary to a requirement to maximise profit for shareholders in companies holding medical patents. This column reviews this decision and its possible implications for health practitioners. It places it in context of other recent court decisions that have expanded the intrusion of corporate-owned intellectual property monopolies into Australian medical practices, and how legislative restrictions upon them in the Patents Act 1990 (Cth) places practitioners and patients at risk of more costly, ineffective or restricted health care. This column concludes by cautioning that Australia's scope to address policy problems caused by this case may be limited should it sign up to the Trans-Pacific Partnership Agreement, particularly if that preferential trade and investment deal includes an Investor-State Dispute Settlement clause that creates a mechanism for multinational corporations to challenge offshore, Australian federal and state policy decisions they perceive undercut their investments.

OAIC Estimates Hearing

From this week's Legal and Constitutional Affairs Legislation Committee Estimates hearing regarding the  Office of the Australian Information Commissioner

CHAIR: Welcome. Do either of you want to make an opening statement? 

Mr Pilgrim : Yes, thank you. I would like to make a very short opening statement. I would like to possibly assist the committee on some developments with the Office of the Australian Information Commissioner since we last appeared before the committee in December of last year. I am appearing today as the acting Information Commissioner as well as in my usual capacity as Privacy Commissioner. Professor McMillan has asked me to extend his apologies to the committee for not being here as he is currently on leave, which was planned some time ago—last year, in fact. 

The committee will be aware that the bill to disband the OAIC was not considered by the Senate before it rose on 5 December 2014. So the office is continuing to discharge its functions under both the Privacy Act and the Freedom of Information Act. This work has continued but in changed circumstances. The Canberra office of the OAIC was closed on 5 December 2014 and all Canberra based staff except for the Information Commissioner have left or have taken up work in other government areas. The Information Commissioner himself continues to work from both the Sydney office and a home base in Canberra, with office assistance and IT support. He has, for example, worked in the Sydney office in three of the first six weeks of 2015. The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. 

In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT. The privacy functions are being undertaken by the majority of the staff in the Sydney office. And I would just like to add that over the past 12 months these staff have implemented some of the most significant reforms to the Privacy Act since its commencement and have done so at a time when we have seen quite a significant increase in privacy matters and complaints coming to the office. But in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values. Thank you. 

CHAIR: Thank you, Mr Pilgrim, and that last statement you made is very good, and we join you in acknowledging the work that your people have done. 

Mr Pilgrim : Thank you. 

Senator JACINTA COLLINS: Welcome, Mr Pilgrim. Can you refresh my memory as to what was occurring with your role, other than now acting Information Commissioner? 

Mr Pilgrim : Do you mean the position of Privacy Commissioner under the bill? 

Senator JACINTA COLLINS: Yes. 

Mr Pilgrim : The bill proposes that the Privacy Commissioner be established as an independent statutory officer but sitting within the Human Rights Commission but not— 

Senator JACINTA COLLINS: Ah, yes: you are the boy in the bubble! Mr Pilgrim : Yes, as we discussed at that hearing. I would be sitting with the Human Rights Commission but not as a Human Rights Commissioner; I would be independent to the Human Rights Commission. I would have responsibility for the functions under the Privacy Act. However, the resources and staff would be supplied to me through the Human Rights Commission. 

Senator JACINTA COLLINS: And this is once this FOI bill is resolved, is it? 

Mr Pilgrim : Yes—should the bill pass the Senate; that is correct. 

Senator JACINTA COLLINS: What happens in the meantime? Do you stay— 

Mr Pilgrim : At the moment the OAIC—the Office of the Australian Information Commissioner—is continuing on until such time that there is legislation passed to disband it. 

Senator JACINTA COLLINS: Where is your work base? 

Mr Pilgrim : Our office is now solely based in Sydney. 

Senator JACINTA COLLINS: And you are working from Sydney. 

Mr Pilgrim : Yes. I have always worked from Sydney. 

Senator JACINTA COLLINS: And Professor McMillan is still working from or based in Canberra? Mr Pilgrim : As I said in my opening statement, he has been spending time in the Sydney office over a period of the first few weeks of the year, and he has a home based office here in Canberra as well. 

Senator JACINTA COLLINS: Home based—I think it was kitchen based, if I recall correctly. 

Mr Pilgrim : I cannot recall that, but he has a home office. 

Senator JACINTA COLLINS: It led me to wonder whether he has a Thermomix! He would be very efficient at home. The evidence we received in the last round of estimates indicated that the government was not looking at re-funding the Office of the Information Commissioner, as the status of the bill would be resolved in February this year. So, further to your comments about late last year, to this point in time—including what sittings the Senate has had in February—it still remains unresolved. When will the government be bringing the bill on for debate in the Senate, Minister? 

Senator Brandis: That is a matter for the Manager of Government Business in the Senate, isn't it? 

Senator JACINTA COLLINS: You are not aware of when it may be scheduled? 

Senator Brandis: I am not aware of the date, no. 

Senator JACINTA COLLINS: It seems that the government is not in a position to pass legislation any time immediately. I think last time we had a discussion about what discussions had occurred with the Attorney-General's Department about ongoing funding arrangements. Mr Pilgrim, can you update me on that from your end? 

Mr Pilgrim : We are having continuing discussions with the Attorney-General's Department on what funding arrangements may need to be made, and the department is exploring those options and would be best placed to answer the question in any more detail. 

Senator JACINTA COLLINS: Yes, because I think that is what Mr Minogue essentially told us on the last occasion, except I think he was optimistic about February. I was less so. Can you give me an update, Mr Minogue, about the Attorney-General's Department's understanding of the ongoing funding arrangements? 

Mr Minogue : At the moment the funding that has been made available by government in the budget for the continuing privacy functions has been appropriated to the Human Rights Commission. That money is still to be made available for those continuing functions. So, it is a question of financial mechanics as to whether it is reappropriated back to the Office of the Information Commissioner—which, on the books as at today, because the bill has not passed, remains—or whether it is some other arrangement between the Human Rights Commission and the OAIC for the provision of that funding. But essentially the resourcing that has been appropriated by government for the functions of the OAIC will be made available—are available—for the OAIC to continue its functions. The precise mechanics about how that is returned or how it reflects that fact that the organisation, the entity, still exists is still to be finalised and published by government. But there is no risk to the ongoing funding for those functions, in line with the budget decision government took. 

Senator JACINTA COLLINS: Are we talking about this fiscal year? 

Mr Minogue : Yes. Senator JACINTA COLLINS: So, since July of last year, there has as yet been no reappropriation and the department is still exploring the mechanics of how such might occur. 

Mr Minogue : There has been no further budget cycle that would allow that to be affected, given that the government's intention is still that the bill be brought on at a time that the government chooses or decides. The bill still reflects government's policy. If the bill passes, then the budget decision reflects the will of parliament. If the bill does not pass, then an alternative arrangement would need to be found. But that crossroad has not been crossed yet. The bill still reflects the government's position. 

Senator JACINTA COLLINS: I understand that the bill still reflects the government's position, but these functions are being carried out under the existing legislative position under funding arrangements that have remained unresolved now for around eight months. 

Mr Minogue : That timing might be right, but the uncertainty surrounding the future of the bill has not been unresolved for that long. 

Senator JACINTA COLLINS: Sorry—the uncertainty has not been unresolved? 

Mr Minogue : The time period that would be relevant is the time from when there was a clear indication that the bill was or was not going to pass parliament. If the bill is not going to pass parliament then yes, government should act to conclusively reflect that new reality. If the bill is going to pass, it would be premature to appropriate moneys to one organisation and then back to another and then back to another as the bill goes through parliament. So, for the moment, it is unresolved only because the future of the bill is unresolved. 

Senator Brandis: And of course if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed.   

Senator JACINTA COLLINS: Well, if the government did not pre-empt the will of the Senate then it would not be a problem. 

Senator Brandis: I think you have it around the wrong way. 

Senator JACINTA COLLINS: I am sure you do think that. That is no surprise to me. 

Senator Brandis: Yes, I do, and it is no surprise to me that you have rudely interrupted me once again. As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon. 

Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner? 

Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that. 

Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything. 

Senator Brandis: Yes, Senator Collins. Move on to your next question. 

Senator JACINTA COLLINS: I am just looking at the remainder of the questions I had for Mr McMillan. I was not aware that he was on leave, so, thank you for that explanation, Mr Pilgrim. Can you tell me what the impact has been of these uncertain funding arrangements in terms of your capacity to meet the functions? 

Mr Pilgrim : As I said, we have moved to having only one site, in the Sydney building, and we are looking at processes to try to streamline the FOI functions we are undertaking by triaging Information Commissioner reviews that come in. For example, we are assessing those matters to see whether there are any that we can deal with quite quickly, whether that be over the phone with the applicant or with the respondent organisation. Otherwise, we are looking at the larger, more voluminous and more complex matters and we are working with the applicants to refer those on to the AAT. 

Senator JACINTA COLLINS: Are you able to fulfil your ongoing statutory obligations without further funding or staffing arrangements being settled? 

Mr Pilgrim : At the moment, as I said, we have had to streamline the process with the use of the power we have under the FOI Act to move more of the more complex and voluminous matters that we do not believe we would be able to get to in a timely fashion onto the AAT by way of assisting the applicants. 

Senator JACINTA COLLINS: But for how long is that streamlining sustainable? 

Mr Pilgrim : At the moment we are waiting to see what happens with the bill, but we are working on the basis that that process will go on until such time as there is resolution around the bill. 

Senator JACINTA COLLINS: So, you do not have any confidence in Mr Minogue's missions around finding mechanics or reappropriation of the funds that went to the Human Rights Commission? 

Mr Pilgrim : No, that is not what I am saying. We are working constructively with the department in terms of finding out those mechanisms to see if we do reach a point where we need to have those appropriations returned to the OAIC. 

Senator JACINTA COLLINS: Well, that is why I am asking how long the current arrangements are sustainable for. 

Mr Pilgrim : At the moment we are working on the basis that we have, if I can put it this way, cash reserves to be able to maintain the status quo as we have it now, through for some months to come. 

Senator JACINTA COLLINS: Mr McMillan referred I think on the last occasion to some cash reserves. Mr Pilgrim : That is correct. 

Senator JACINTA COLLINS: So, what you are telling us is that you still have some cash reserves to access. 

Mr Pilgrim : Yes. 

Senator JACINTA COLLINS: And I am not going to pressure you, but you are not providing any specific sense of how long that position is sustainable for. 

Mr Pilgrim : We are going to be reviewing that situation once we get more information on what is likely to happen with the bill, but I am confident that we can go on for a number of months more on the cash reserves that we do have. 

Senator Brandis: Senator Collins, this matter lies entirely in your hands. It is the opposition that is declining to pass the bill. The government wishes to pass the bill. If the bill were to be passed, this problem would not exist. But the government does not have a majority in the Senate. If you, Senator Collins, as the shadow Attorney-General's spokesperson in the Senate, were to give an indication that the opposition will pass the bill, this problem would disappear immediately. A solution lies entirely and exclusively in your hands. 

Senator JACINTA COLLINS: Oh, Senator Brandis, if politics were only that simple! 

Senator Brandis: It sounds pretty simple to me, Senator Collins. If you pass the bill, it will be passed. 

Senator JACINTA COLLINS: Oh, dear. If you give me what I want, everything will be fine! Mr Pilgrim, will the cash reserves last you until the next budget? 

Mr Pilgrim : I would like to take that on notice. 

Senator JACINTA COLLINS: Sure. 

Mr Minogue : It might assist, if I just mention—and I might have misunderstood the import of what you are saying, Senator—that it is not that the OAIC is only operating on the available cash reserves. Money that is appropriated to the Human Rights Commission for OAIC purposes remain available—and that was in the order of $19 million over four years. I just did not want there to be a misunderstanding that it was only the underspend or the reserves that were available to the OAIC at the moment. 

CHAIR: Thanks for clarifying that, Mr Minogue. 

Senator JACINTA COLLINS: Mr Minogue, you referred to re-appropriations and sorting through proper mechanics. What you are saying to me is that some of the funds that are currently available, other than the cash reserves, are already being utilised by the office of information commissioner, and there are other funds that you need to look for a mechanism or re-appropriation. Is that correct? 

Mr Minogue : Forgive me if I have made this messier that it needed to be. 

Senator JACINTA COLLINS: It is all right. It is after 10 o'clock. 

CHAIR: I may not forgive you. Mr Minogue : It is always dangerous to volunteer. I know that. 

CHAIR: Yes. 

Mr Minogue : The moneys that the government decided, in the budget, were to be made available to the office of the information commissioner for its ongoing functions were in the order of $19 million over four years. Because of the government's decision that the OAIC would be restructured and the Privacy Commissioner would move as an independent statutory officer to the Human Rights Commission, those moneys were appropriated not to the OAIC, but to the Human Rights Commission. Given that the bill has not passed, those monies are still in the appropriation of the Human Rights Commission, but only for OAIC purposes. The mechanics that I was talking about was that, if the bill passes, that remains a proper reflection of the government decision. If the bill does not pass, then a decision will need to be made by the government not to find new money for the OAIC, but to recognise the fact that under the first proposition the OAIC would no longer continue. Under the second alternative, if the bill is defeated, the OAIC does continue, so those monies would need to be re-appropriated back to the entity that will continue, whereas the decision of government was that it be initially appropriated to an organisation called the Human Rights Commission because the OAIC, in its current form, would not continue. 

Senator JACINTA COLLINS: But are there other funds, other than the cash reserves, currently available to the office of the information commissioner? 

Mr Minogue : Yes. The money that is made available to the OAIC for this financial year, which is probably in the order of some $5 million, remains available to the OAIC. 

Senator JACINTA COLLINS: Okay. Thank you. 

Senator LEYONHJELM: Mr Pilgrim, what is the staffing situation in relation to the OAIC resources? How many people are working on FOI in the office? 

Mr Pilgrim : We have approximately nine staff working on FOI matters. 

Senator LEYONHJELM: How does that compare with 12 months ago? 

Mr Pilgrim : Twelve months ago we had approximately 20. 

Senator LEYONHJELM: And the decline is attributable to the anticipated restructure and abolition of the function? 

Mr Pilgrim : That is correct. We took steps last year, on the basis that the government's intention was for the office to wind up by 31 December, and worked with our staff to make sure that we could place those staff in other positions where we could assist them in that process. 

Senator LEYONHJELM: How readily would you be able to get the office back on foot at short notice? 

Mr Pilgrim : The office is already undertaking some, although limited, FOI functions. It is a question I would have to take on notice, but the office is already undertaking certain functions. We already have the systems in place for putting that work into our complaints management system. Those sorts of structures already exist. 

Senator LEYONHJELM: To what date is Professor McMillan officially contracted? 

Mr Pilgrim : Professor McMillan was appointed for a five-year term. That term expires in November of this year. 

Senator LEYONHJELM: Am I right in understanding that he is moving to the AAT himself? 

Mr Pilgrim : No, that is not correct. The former Freedom of Information Commissioner, Dr James Popple, moved to the AAT on 1 January this year. 

Senator LEYONHJELM: Okay, I had the wrong person. You are probably the wrong person to ask this of, but it strikes me that there is the potential for that gentleman to be hearing appeals against his own decisions. How would that be dealt with? 

Mr Pilgrim : That would be a matter for the AAT. 

Senator Brandis: That could not really happen. 

Senator LEYONHJELM: He would recuse himself? How would it work? 

Senator Brandis: This is hypothetical of course, but you would expect that whoever arranged the AAT lists would ensure that that matter did not come onto his docket. 

CHAIR: In an area like Townsville, when barristers are appointed to the bench, they of course do not deal with cases that they had an interest in when they were barristers. 

Senator LEYONHJELM: I assumed that was the case but I just wanted confirmation.

APEC Privacy Framework

The APEC Data Privacy Subgroup meeting in the Philippines earlier this month featured a "comparative review" [PDF] by Australia, Canada and New Zealand of the 2013 changes to the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data in relation to the APEC Privacy Framework. The review is "a contribution to the APEC Privacy Framework Stocktake".

The review document comments that in updating the APEC Framework

The approach to be taken in any concrete proposals need not be identical to the approach taken by the OECD Guidelines as they must suit APEC conditions and objectives. However, the DPS should give some weight to the benefits of maintaining consistency with the OECD where that enhances interoperability and the facilitation of data transfers beyond the APEC region. 

The document offers the following findings

A. The 1980 OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data were the foundation and starting point for developing the APEC Privacy Framework.

B. The OECD Guidelines and APEC Framework have the same objectives and contain many similarities in terms of structure and content.

C. After 30 years of operation, the OECD Guidelines underwent a major review by experts resulting in the adoption of significant updating changes in 2013.

D. The 2013 changes modernised and supplemented the Guidelines, to make them more effective for the changed technological and business environment, while maintaining the 1980 principles unchanged and basic structure of the Guidelines intact.

E. Given that the origins of the APEC Framework lie in the 1980 version of the OECD Guidelines that are now superseded, and that substantial effort and expertise has gone into updating those Guidelines, it is fitting that the Stocktake should be based on an understanding and consideration of the 2013 updates to the 1980 OECD Guidelines.

F. As a result of the 2013 changes, there are several areas in which the APEC Framework is now lacking counterpart content to the OECD Guidelines.

G. The review has identified several areas where the APEC Framework may benefit from updating in areas where changes have been made to the OECD Guidelines.

It accordingly recommends the development of "concrete proposals" for updating the APEC Privacy Framework, in particular through -

a. Incorporation of the concept and elements of a privacy management programme into the APEC Framework Part IVA (Guidance for domestic implementation).

b. Adding breach notification into the APEC Framework at Part IVA(V) (Guidance for domestic implementation: Providing for appropriate remedies in situations where privacy protections are violated).

c. In Part IVA (Guidance for domestic implementation), include new content promoting:

i. Economy privacy strategies.

ii. Technical measures that will help protect privacy.

iii. The establishment of privacy enforcement authorities with reference to their role and the attributes and support needed for such authorities.

d. In Part IVB (Guidance for international implementation), include text promoting:

i. Interoperability with privacy frameworks based outside the APEC region.

ii. Internationally comparable metrics to inform policy making in relation to privacy.

e. In Part IVB (Guidance for international implementation), in existing part (III) or as a new part (IV), outline the factors to be considered in balancing trade considerations when restricting cross‐border transfers for reasons of privacy.

f. Make suitable updates to the preface and facing page commentary.

Food Systems

'Food Systems Law from Farm to Fork and Beyond' by Stephanie Tai in (2015) 45(1) Seton Hall Law Review comments 

In urging “responsible eating,” food writer Wendell Berry once wrote,“I begin with the proposition that eating is an agricultural act.” Yet the legal world has long treated food and agriculture as separate spheres. Food law in the United States has traditionally been viewed as the area of law related to the development and marketing of final food products, while agricultural law has been viewed as the area of law relevant to farmers and rangers,agri-businesses, and food processing and marketing firms. But more recently, both policymakers and scholars have been taking a more systems-oriented approach to food regulation through the re-framing of food and agricultural law into a broader food systems law. In particular, a number of legal scholars working in these areas have begun merging the fields of food law and agricultural law — as well as components of other fields of law — into something perhaps greater than the sum of its parts: a field of law that examines food systems as an interactive whole, rather than as individual components of the farm-to-fork process.

This Article is the first of a two-part project.This part explores trends in agricultural and food law scholarship to argue that a nascent integrated approach, one that is more systems-oriented, is developing within current legal scholarship. The Article begins by providing some broader context on systems-oriented approaches to understanding food, drawing from food policy and environmental policy literature. It next briefly describes the different origins and coverage of early agricultural law and food law, situating the distinct historical and theoretical foundations of agricultural law and food law into the broader literature of legal taxonomy. It then illustrates developing trends in scholarly articles, legal casebooks, and other law school institutional coverage to suggest the convergence of these two areas into a broader, more systems-oriented approach. Finally, the Article highlights distinctive features that might arise out of a more deliberate development of systems-oriented approach in this legal field. It argues that such an approach may provide insights into other cross-cutting areas of legal scholarship that the separated areas of food law and agricultural law cannot provide. In doing so, this Article lays the groundwork for the next part of this project, which presents case studies to provide a more complete an analysis of the benefits that would arise from such an approach and uses systems theory to develop important considerations for the deliberate cultivation of food systems law as a field of law.