Symbols

The national Parliamentary Joint Committee on Intelligence and Security Recommendations has released its report on the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023. 

The Bill would establish new offences in the Criminal Code for publicly displaying, and trading in goods that bear, prohibited Nazi or Islamic State symbols; and implement other measures relating to counter-terrorism offences and the listing of terrorist organisations. 

The Committee's recommendations are as follows 

1  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to remove the Islamic State flag from the definition of a prohibited hate symbol. The Committee further recommends that the Government give consideration to establishing a new offence that would prohibit the public display and trade of symbols associated with terrorist organisations. 

2  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the offence provisions for the trading of items bearing a prohibited symbol do not come into force for a period of 6-12 months, so that collectors have a window in which to dispose of part or all of their collections if they so wish. 

3  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to extend the journalistic purpose exemptions in sections 80.2H(9)(b) and 80.2J(5) include editors, producers and others involved in the news and current affairs reporting process. 

4 that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended so that the journalistic purpose defence in section 474.45D(1)(e) include editors, producers and others involved in the news and current affairs reporting process. 

5  that the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be amended to clarify that any report by this Committee in respect of terrorist listings under the Criminal Code be presented to the Parliament. 

6  that, subject to the amendments recommended in this report, the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 be passed by the Parliament.  

Greenwashing

The ACCC, consistent with its 2023-24 compliance and enforcement priorities (ie consumer, product safety, fair trading and competition concerns in relation to environmental and sustainability claims), has announced that yoghurt manufacturer MOO Premium Foods has provided an enforceable undertaking after the ACCC investigated ‘100% ocean plastic’ representations on MOO's yoghurt packaging, website, and social media pages. 

 Between at least November 2021 and the date of the undertaking, MOO claimed that its yoghurt tubs were made from ‘100% ocean plastic’, which the ACCC was concerned gave the impression they were made from plastic waste collected directly from the ocean, when this was not the case. While MOO included disclaimers on the top and back of the packaging, the ACCC considered they were insufficient to overcome the headline representation of ‘100% ocean plastic’. 

MOO has admitted in the undertaking it has given the ACCC that the ‘100% ocean plastic’ representations likely contravened the Australian Consumer Law, which prohibits false or misleading representations. 

“Our investigation revealed that the plastic resin used in the manufacture of MOO’s yoghurt packaging was collected from coastal areas in Malaysia, and not directly from the ocean,” ACCC Commissioner Liza Carver said. 

“Making false statements about a product’s environmental or sustainability qualities can mislead consumers, as well as putting the businesses making genuine claims at a competitive disadvantage.” “It is important that environmental and sustainability claims by businesses are correct as they are a key influence on consumer choices and what people spend their money on,” Ms Carver said.

MOO has undertaken to remove the ‘ocean plastic’ representations from its yoghurt packaging, social media platforms, and website alongside publishing corrective notices on its website and social media platforms. 

Genomics and life insurance underwriting

The Treasury Department's consultation paper 'Use of genetic testing results in life insurance underwriting' comments 

Over recent years, the use of genetic testing results in life insurance has been the subject of significant public debate. In 2018, a report by the Parliamentary Joint Committee on Corporations and Financial Services expressed concerns that the use of genetic tests in underwriting life insurance was adversely impacting participation in health research projects involving genetic testing. In 2019, Australia’s life insurance industry introduced a partial moratorium on the requirement to disclose genetic test results. The Moratorium was introduced in response to concerns that individuals would not undertake genetic testing for fear of negatively impacting their ability to obtain affordable life insurance. 

In June 2020, a $500,000 grant was awarded to researchers at Monash University to monitor the impact of the Moratorium, its effects on the uptake of genetic testing, and its impacts on genetic discrimination. The subsequent 2023 Australian Genetics & Life Insurance Moratorium: Monitoring the Effectiveness & Response (A-GLIMMER) report documented stakeholder concerns and experiences with genetic test results and life insurance. The report found that the existing moratorium continues to discourage consumers from participating in both established clinical genetic testing, which may identify a need for potentially life-saving treatment, and medical research involving genetic testing. Addressing these concerns requires review of the regulatory framework for the use of genetic testing in life insurance underwriting. This consultation paper seeks feedback on both the impacts of life insurers using genetic test results in underwriting on genetic testing and research, as well as a range of potential policy responses. 

Life insurance can be individually risk-rated 

Life insurance is a mechanism for consumers to aggregate and distribute the costs associated with mortality and morbidity risks. Pooling risk benefits the insured by spreading the significant costs associated with death, illness and injury amongst all the people insured. 

There are four main types of life risk insurance products in Australia:

1. Life cover (also known as term life insurance or death cover), which pays a lump sum in the event of the death of the policy holder. 

2. Total and permanent disability (TPD) insurance, which pays a lump sum to help with rehabilitation and living costs if the policy holder becomes totally and permanently disabled because of illness or injury. 

3. Trauma insurance, which pays a lump sum amount if the policy holder suffers a critical illness or serious injury (e.g., cancer, a heart condition, major head injury or stroke, but not mental health conditions). 

4. Income protection insurance (often referred to as individual disability income insurance or IDII), which pays a portion of the policy holders’ income if they can’t work due to illness or injury.

Life Insurance, like insurance products other than health insurance, is ‘risk-rated’ not ‘community-rated’. Risk-rating gives effect to the principle that insurance premiums should reflect individual risk. By contrast, community rating is the basis of Australia’s health insurance system. The Private Health Insurance Act 2007 requires private health insurers to offer community-rated health insurance, which means all policy holders pay the same premiums for the same policy, regardless of their gender, age or health status. The results of an individual’s genetic tests therefore have no direct bearing on their access to or the price of a complying health insurance product. 

Underwriting is a process where life insurers individually assess a person’s unique risk of illness, injury and death to determine the level of risk to be covered and enable the accurate pricing of premiums. This process ensures that the cost of the cover is proportionate to the risks that the individual concerned presents. Key factors taken into account during the underwriting process include an applicant’s personal medical history, age, smoker status, occupation, family history, lifestyle and pursuits. 

In Australia, default insurance provided through a superannuation fund or employer is not individually underwritten. However, voluntary insurance, including life insurance purchased from an insurer, via a financial adviser or a voluntary increase in group superannuation will generally be individually underwritten. 

As life insurance is a guaranteed renewable product, once a policy has been underwritten and commenced, the life insurer cannot change or cancel a person’s cover, provided they pay all future premiums when due. However, life insurers can generally increase premiums across a risk pool if claims are higher than was initially anticipated. 

Genetic testing can indicate potential for individual health risks 

Genetic testing investigates a person’s genetic variants and changes, some of which may contribute to the risk of developing a health condition . Genetic variants that are disease-causing can be inherited (called germline variants), acquired through the lifespan, or can be found in cancers (called somatic variants). There are over 5000 conditions known to be caused by germline variants, including some conditions which predispose individuals to a higher risk for certain cancers. 

The results from genetic testing can be used to identify the genetic origin of a disorder, diagnose rare inherited diseases more efficiently, or predict both the risk of individuals developing a genetic condition and their need for, or likely response to, specific treatments. Medical research involving genetic testing can be used to identify new links between genetic variants and health conditions, as well as develop new treatment methods. Consequently, there are significant medical and public health benefits associated with the use of genetic testing by individuals, as well as ongoing medical research involving genetic testing. 

There are various types of genetic test purposes, including diagnostic, predictive (of risk for future disease) and presymptomatic testing. In many cases, genetic testing is used to confirm a diagnosis when a particular condition is suspected based on current physical signs and symptoms. Clinical diagnostic genetic testing is used to identify or rule out a specific genetic or chromosomal condition in an individual with features that may have either a genetic or non-genetic origin. The results of a diagnostic genetic test can also inform the individual’s prognosis and influence a person's choices about health care and the management of their disorder. Where a person is experiencing symptoms of a diagnosed condition, they may be required to disclose this to the life insurer, regardless of whether that diagnosis is the result of a genetic test or other medical test. 

Predictive and presymptomatic testing is used to detect gene variants associated with heritable disorders that appear after birth, often later in life, but are not clinically detectable at the time of testing. Predictive testing of the general, currently unaffected population can identify variants that increase a person's risk of a developing disorder with a genetic basis. Presymptomatic genetic testing can determine whether or not a person is at risk of a condition that may have already been identified in other family members, or is likely to develop signs and symptoms of the condition in the future. The results of predictive and presymptomatic hereditary disease testing can differentiate between pre-symptomatic genetic diagnosis (which may result in future disease), asymptomatic carrier status (with the majority having no future adverse personal health consequence) or non-carrier status. Depending on the condition identified, a genetic diagnosis may not always result in clinical signs and the degree of severity may vary among those who do develop disease. This variability in risk may not be readily predicted from the genetic test findings alone. 

Genetic testing can be used for a range of other purposes, including diagnostic prenatal testing where a fetus is at risk for a heritable genetic condition, newborn screening to determine if a baby has one of a selected number of severe heritable genetic conditions that requires early management, cascade testing of family members once a heritable genetic condition is identified in a family member and carrier testing to determine risk of the condition in offspring. In the context of life insurance, the most relevant uses of clinical genetic testing are for diagnostic, predictive and pre-symptomatic testing, as well as for research purposes, where a genetic condition or risk for a genetic condition is identified in an individual. 

Recent Government initiatives in genetic testing and research include a $500.1 million investment to the Genomics Health Futures Mission, and a $28.1 million investment to develop a new government body to guide the future translation of genomic research and trials into clinical practice.  

Life insurers can request genetic testing results 

Under the Insurance Contracts Act 1984, consumers must take reasonable care not to make a misrepresentation to life insurers when entering into contracts, including failing to answer a question or providing an obviously incomplete or irrelevant answer to a question. Consumers have a responsibility to provide information requested by life insurers, including any genetic testing results. Life insurers can subsequently use this information, including, for example, when considering any offer to provide insurance to a consumer. 

While the Disability Discrimination Act 1992 makes discrimination on the grounds of disability (including a disability that may exist in the future because of a genetic predisposition) unlawful in many areas of public life, there are exceptions relating to the provision of insurance. Under section 46 of the Disability Discrimination Act 1992, discrimination in insurance and superannuation products (including life insurance) is permitted in the following circumstances:

• where the discrimination is based on actuarial or statistical data on which it is reasonable for the discriminator to rely; and the discrimination is reasonable having regard to the data and other relevant factors; or 

• where no such actuarial or statistical data is available and cannot reasonably be obtained – the discrimination is reasonable having regard to any other relevant factors. 

Consequently, provided the conditions above are satisfied, life insurers can request details regarding family medical history, and regularly use that information in the same manner. Life insurers are also able to request and use genetic testing results to inform their life insurance underwriting. Consumers can provide favourable genetic test results to life insurers, for example, to demonstrate that they are not at risk of developing certain health conditions despite previous family history. 

Consumers who believe they have been unlawfully discriminated against because of a genetic diagnosis, or risk for a heritable genetic condition, can make a complaint to the Australian Human Rights Commission, which has the power to investigate and attempt to conciliate complaints of discrimination. If the conciliation is unsuccessful, in certain circumstances a complainant may commence legal proceedings in the Federal Court of Australia or the Federal Circuit and Family Court of Australia. 

Concerns about the impact on participation in medical research involving genetic testing 

In 2016, the Parliamentary Joint Committee on Corporations and Financial Services conducted an inquiry into the life insurance industry. Part of the inquiry focused on use of genetic testing results in life insurance. In its final report, released in 2018, the Committee expressed concerns that the use of genetic tests in underwriting life insurance was adversely impacting the public’s willingness to participate in health research projects that involved genetic testing. The Committee made a number of recommendations directed towards the Financial Services Council (FSC), the then peak industry body representing the life insurance sector. These included that the FSC:

• in consultation with the Australian Genetic Non-Discrimination Working Group, assess the consumer impact of imposing a moratorium on life insurers using predictive genetic information, unless the consumer provides genetic information to a life insurer to demonstrate that they are not at risk of developing a disease; and 

• make any updates required to the relevant Standards to support the above recommendation.

The Committee further recommended that if the FSC and life insurers adopt a moratorium on the use of predictive genetic information as outlined above, that the Government continue to monitor developments in genetics and genetic testing to determine whether legislation or another form of regulation banning or limiting the use of genetic information by the life insurance industry is required. 

Moratorium on the use of genetic tests in life insurance 

Following the inquiry, the FSC introduced a moratorium on the use of genetic testing in life insurance. The updated standard, known as FSC Standard 11: Moratorium on Genetic Tests in Life Insurance, came into force on 1 July 2019. The standard aimed to facilitate an efficient life insurance industry, while also recognising a social responsibility to not hinder the adoption of new medical technologies that could improve health outcomes. 

Under the Moratorium, life insurers could only request or use the results of a genetic test if the total amount of cover a person would have – including both the cover being applied for and any existing individual and group insurance cover with any life insurers – was more than:

• $500,000 of lump sum death cover 

• $500,000 of total permanent disability cover 

• $200,000 of trauma and/or critical illness cover 

• $4,000 a month of any combination of income protection, salary continuance or business expenses cover.

For example, under the Moratorium, a consumer with no existing insurance applying for $300,000 worth of death cover would not be required to disclose any genetic testing results. Conversely, a consumer with $300,000 worth of existing death cover, seeking to apply for an additional $300,000 worth of cover (with either their existing or an alternative insurer), would be required to disclose any genetic testing results if asked. 

These limits compare to APRA data that suggests that the average sum insured of individual policies, exclusive of any group cover, is:

• $713,959 of lump sum death cover 

• $849,128 of total permanent disability cover 

• $207,414 of trauma and/or critical illness cover 

• $7,706 of disability income insurance.

There is currently no data available on the average sum insured via group cover. The extent of cover will generally vary by superannuation fund and the age of the fund member. 

The Moratorium also stated that regardless of the amount of cover sought, life insurers would not require or encourage applicants to take a genetic test as part of their life insurance application. Similarly, applicants would not be required to disclose results of genetic tests taken as part of medical research where the applicant would not receive the results. 

In February 2022, the FSC released a statement outlining the effectiveness of the Moratorium. Data released alongside the statement indicated that of the 846 applications for cover received by life insurers which included a genetic test result in the six months to 30 June 2021:

• In 653 cases (77 per cent) the genetic test result had no influence. 

• 73 cases (9 per cent) were adversely impacted by a genetic test result, all of whom were seeking cover above the FSC Moratorium limits. 

• 111 cases (13 per cent) were positively influenced by a genetic test result (i.e., the premium offered was lower than it would have otherwise been). 

Importantly, these statistics do not capture instances where consumers may have chosen not to apply for cover above the limit because they were aware that the FSC Moratorium only applies up to certain amounts of cover. 

In October 2022, the FSC undertook a review of the Moratorium, and subsequently announced the following changes: 

• The removal of the sunset clause (previously the FSC Moratorium was due to sunset in June 2024). 

• Immunity for genetic tests taken before, or while, the FSC Moratorium was in place. 

• The indefinite extension of the Moratorium, and its incorporation into the Life Insurance Code of Practice (from 1 July 2023). 

In June 2022, the Council of Australian Life Insurers (CALI) was established as the life insurance industry’s new representative body. As of October 2023, CALI’s 19 members represent 99 per cent of the life insurance market and all reinsurers in Australia. From 29 September 2023, CALI took over ownership of the Life Insurance Code of Practice from the FSC. 

The prevalence of genetic testing is increasing 

Over the last decade, the number of Medicare Benefits Schedule (MBS) genetic and genomic pathology services, as well as the amount of benefits paid, has trended upwards (Figure 1). This reflects both advances in genomic medicine and the addition of new genetic and genomic services to the MBS in response to Medical Services Advisory Committee (MSAC) recommendations. With ongoing advances in technology, and associated decreases in cost, the scope and utilisation of genetic testing is expected to increase significantly over the coming years. ... 

Concerns about effectiveness of Moratorium: The A-GLIMMER report In June 2020, a Medical Research Future Fund Genomics Health Futures Mission grant was awarded to researchers at Monash University. The researchers sought to monitor the impact of the FSC Moratorium, its effects on the uptake of genetic testing, and its impacts on genetic discrimination (the A-GLIMMER Report). 

The A-GLIMMER final report was released in June 2023. The report drew upon consultation with consumers, patients, health professionals and financial advisers to assess views on the effectiveness of the Moratorium. 

Key issues raised in the report included that:

• People who have genetic tests that indicate a predisposition to a condition are experiencing difficulties accessing life insurance. 

• People are not undertaking genetic tests or participating in scientific research due to concerns about obtaining affordable life insurance. 

• Stakeholders have concerns about the life insurance industry’s self-regulation of the Moratorium, as well as a low level of confidence in the effectiveness of the Moratorium. Many stakeholders were also concerned about the absence of any Government oversight. 

• Life insurers are not complying with the Moratorium, including asking applicants about genetic test results despite applications falling below the financial thresholds. 

• The Moratorium’s financial limits were too low. 

• There was poor awareness and knowledge about the Moratorium amongst some stakeholders.

The A-GLIMMER Project’s overall assessment was that the Moratorium is inadequate to address and prevent genetic discrimination in life insurance, and that self-regulation is an ineffective regulatory model to address genetic discrimination. The Final Report recommended that: 

• The Government amend the Disability Discrimination Act 1992 to prohibit insurers from using genetic or genomic test results to discriminate between applicants for risk-rated insurance, and consider amendments to the regulation of financial services to ensure insurers are subject to a positive duty to not discriminate. 

• The Government allocate responsibility and appropriate resources to the Australian Human Rights Commission (‘AHRC’) to enforce, promote, educate and support individuals and all relevant stakeholders to understand and meet the new legal obligations under the Disability Discrimination Act 1992.  

Options for regulatory intervention 

Genetic testing provides significant public health benefits, both through individual testing and when undertaken as part of medical research. Similarly, life insurance plays an important role in assisting Australians through some of their most challenging moments. Individuals should not be forced to decide between undertaking genetic testing and obtaining life insurance. 

However, there are concerns that the current moratorium is deterring individuals from potentially life-saving genetic testing, as well as from participation in genetic research, for fear that it might impact their ability to obtain affordable life insurance. As genomic technologies evolve, there will likely be improvements in the accessibility and affordability of genetic testing. This will lead to more Australians undertaking some form of testing and will likely exacerbate these concerns. As a result, regulatory intervention may be needed to enable consumers to access affordable life insurance, while simultaneously ensuring that the potential benefits of genetic testing are fully realised. In assessing regulatory interventions, appropriate consideration must be given to potential risks and market consequences. The primary risk of further restrictions on the use of genetic test results is the occurrence of ‘adverse selection’. Adverse selection occurs when a consumer, who is aware of a genetic test result indicating that they are at high risk of an early death or disablement, seeks a life insurance policy or level of cover that they otherwise would not have. The issues presented by adverse selection are likely most acute when insurers do not have access to the same information as the consumer (i.e., the genetic test result), as the insurer is unable to accurately assess the risk of a claim. At its most extreme, adverse selection has the potential to threaten the viability of a market, or lead to insurers amending product offerings to moderate any impacts. Where insurer offerings remain unchanged, an increase in coverage attributable to people acting in response to genetic tests may be reflected in increased premiums. 

There is mixed evidence on the impact of adverse selection on the behaviour of consumers or the risk exposure of life insurers. A US study found that consumers were up to five times more likely to purchase long-term insurance after a positive test for Huntington’s Disease. Conversely, the Canadian Privacy Commissioner commissioned several actuarial reports on the likely impact of a ban on using genetic test results in life insurance underwriting, which concluded that a ban would have negligible market impact at the time. Similarly, a 2022 Report commissioned by the UK Government found no evidence of a current risk to insurers as a result of restricting the use of genetic testing results by life insurers. 

A range of options for regulatory intervention are outlined below. For those options involving legislative action, the nature of any amendments or intervention (e.g., the specific Act or Acts to be amended) are not canvassed, as the options focus on the outcome of any proposed intervention. Any approach eventually adopted would be subject to periodic reviews to ensure there is flexibility and that the approach remains fit for purpose. Stakeholders are welcome to provide feedback on any implementation considerations that they may wish to raise. 

• Option 1: No Government intervention: Under this option no action would be taken by the Government. Instead, the use of genetic testing results by life insurers would continue to be governed by both the Disability Discrimination Act 1992, and the Life Insurance Code of Practice. This approach would limit the scope for additional adverse selection. Additionally, there would be no further regulatory burden placed on industry, as insurers would not be required to update existing policies or procedures. 

Conversely, this approach would fail to address the concerns outlined in the A-GLIMMER report. As outlined above, APRA data suggests that the monetary limits of the Moratorium are below the average sum insured of individual policies. Barring any voluntary action from the life insurance industry, both the disincentives to undertaking genetic testing and impacts on public health would remain as they currently are. Additionally, the Council of Australian Life Insurers has stated that the industry now supports government regulation of the use of genetic tests by life insurers to give Australians peace of mind. 

While not a matter for Government, options for industry-led action include increasing or otherwise altering the thresholds within the Moratorium, and submitting the Life Insurance Code of Practice to ASIC for approval as a code of conduct under s1101A of the Corporations Act 2001. 

• Option 2: Legislating a ban: Under this option, the Government would legislate a total or partial prohibition on the use of adverse genetic testing results by life insurers. 

Under a total ban, life insurers would be prohibited from requesting or utilising any adverse genetic testing results to inform their underwriting calculations. This approach would partially reflect the recommendations of the A-GLIMMER report, and align with the Canadian approach to the use of genetic test results by life insurers, as outlined in the Genetic Non-Discrimination Act. 

Under a partial ban, life insurers would be prohibited from requesting or utilising any adverse genetic testing results to inform their underwriting decision, subject to certain exemptions. This approach would broadly align with the United Kingdom approach, whereby insurers cannot use predictive genetic test results, except for those for Huntington’s disease, and only then in certain applications. A process for determining the nature and extent of any exemptions would need to be delivered to support this approach. 

A total or partial ban would provide increased certainty to consumers and medical professionals that undertaking genetic testing, or participating in medical research involving genetic testing, would not impact the ability of consumers to obtain life insurance. These approaches would address many of the concerns raised in the A-GLIMMER report. 

Conversely, in the event that a ban on the use of genetic testing is implemented, the information asymmetry between consumers and insurers may give rise to adverse selection. If insurers cannot use adverse genetic tests in any capacity, it is possible for a consumer who has knowledge of a condition to take out a level of cover that they otherwise would not have. Insurers would be unable to accurately assess the risk of a claim by that consumer. There are concerns that this may impact the viability of the life insurance industry, for example due to consumers with adverse test results attempting to take out very large amounts of cover. However, there is limited evidence that such concerns have eventuated in jurisdictions with similar restrictions. This option would also require life insurers to update relevant policies and procedures. Additionally, implementing only a partial ban may result in the disincentives to undertaking genetic testing remaining unaddressed. Consumers may not be aware of the existence of any limitations, and may lack clarity as to the exact circumstances in which life insurers may rely on the exceptions. Additionally, genetic test consultations, consent form, and research recruitment process will still have to involve a conversation regarding financial implications and life insurance, which may impact participation rates. 

• Option 3: Legislating a financial limit: This option proposes to legislate a financial limit, below which insurers cannot request or utilise adverse genetic testing results in their underwriting. This result broadly reflects the current limitations on the use of adverse genetic testing results by life insurers, as detailed in the Life Insurance Code of Practice. The financial limit may apply to the total cover held by an applicant (in line with Life Insurance Code of Practice), or be restricted to the cover sought under each individual application. Any financial limit developed under this option would exceed the existing thresholds detailed in the Life Insurance Code of Practice, and would be subject to regular and ongoing reviews to ensure they remain at an appropriate level. For example, the limit on death benefit covered could be increased to $1.5 million. 

This approach would ensure that consumers could obtain a certain level of cover, while limiting the scope for additional adverse selection. However, as demonstrated in the A-GLIMMER report, consumers are often unaware of the existence of financial limitations. A prescribed limit may also not reflect the needs or specific circumstances of individual consumers. Additionally, if consumers are aware that the financial limits may be revised in the future, they may continue to avoid genetic testing for fear of what implications might arise in future, once it is too late to choose not to have the genetic test. 

Effective enforcement is vital to ensuring consumer confidence in the protections afforded to them. While the most appropriate enforcement body may ultimately depend on the nature of the limitations adopted, options for enforcing a legislated regime covering the way life insurers utilise adverse genetic test results could include: 

• Option 1: The Australian Human Rights Commission (AHRC): The A-GLIMMER report recommends that the AHRC be given responsibility to enforce, promote, educate and support individuals and stakeholders to understand and meet any new obligations regarding genetic testing in life insurance. The report notes that the AHRC has extensive experience addressing, resolving, and seeking to prevent significant claims of discrimination in relation to insurance. 

• Option 2: The Australian Securities and Investments Commission (ASIC): As part of its regulation of life insurers, ASIC could be given responsibility for enforcing any new obligations regarding genetic testing in life insurance. ASIC has extensive experience regulating the conduct of life insurers, and a high level of familiarity with their operations. Under this approach, consumers would have the option of making a complaint to the Australian Financial Complaints Authority (AFCA).

Responsive Constitutionalism

'The New Responsive Constitutionalism' by Rosalind Dixon in (2023) Modern Law Review comments 

Constitutionalism is a near universal discourse. But it comes in many different variants: it can be democratic or authoritarian, liberal or post-liberal, and legal or political in nature. The term constitutionalism has also been used to describe different regional patterns in constitutional self-government, and modes of government in a variety of spheres – including ‘global’, ‘digital’ and ‘societal’ domains. 

Democratic constitutionalism itself has many variants and intersects with varying understandings of constitutionalism. Democratic constitutionalism can be legal or political in nature, and can take on a more preservative or a more transformative focus. It can likewise emphasise rights over structure (or vice versa), and either (or both) negative or positive rights traditions. 

There are important real-world consequences to these debates: constitutional lawyers, drafters and judges worldwide look not only to their own domestic traditions and politics but to these theoretical ideas to guide processes of constitutional design and construction. The ongoing process of constitution-making in Chile is only one of many recent examples. Constitutional drafters in Chile have proposed a wide variety of preservative versus transformative constitutional models, with different institutional variants, all within a framework of a commitment to democratic constitutionalism. 

This article describes a novel, distinctive version of democratic constitutionalism – responsive constitutionalism – which advances both thin and thick understandings of democracy, and proposes a new way of understanding democratic constitutionalism as involving a mix of legal and political, negative and positive, and entrenched and flexible constitutionalism. The idea of responsive constitutionalism draws on ideas about responsive law and regulation developed by scholars such as Nonet and Selznick, and Ayers and Braithwaite. 

Manuel Cepeda has also provided a compelling account of how these ideas can, and do, inform constitutional practice in real-world settings, including in countries such as Colombia. Indeed, he has used the term ‘responsive constitutionalism’ to describe a version of constitution making, institutional design and adjudication that involves the same emphasis as responsive law theorists on notions of participatory decision-making, ‘the competence and institutional capacity of [courts] to address complex problems’ and ‘promote substantive justice’, and the value of ‘invit[ing] experts, organizations, and universities’ to contribute to processes of constitutional interpretation and implementation. 

The idea of ‘responsiveness’, however, can be further adapted to fit a constitutional context, drawing on distinctive notions of institutional capacity in this context and what democracy is and requires. In previous work I have explored the idea of responsive judicial review as a distinct mode of constitutional construction and adjudication. Malcolm Langford has likewise put forward a concept of responsive courts in the context of social rights adjudication. This article attempts to spell out the broader theoretical framework in which these ideas sit, as well as the broader implications for constitutional design and construction. 

A ‘new’ responsive approach to constitutionalism, the article suggests, points to the importance of both unwritten and written, and politically and judicially-enforced constitutional norms in promoting democratic responsiveness. Hence, it is contended that responsive constitutionalism emphasises the value of: institutional pluralism; overlapping institutional authority; multiple access points to institutions; broad remedial power for relevant institutions, including courts; a balance between constitutional norms that promote rights-enhancing forms of state action and limits on state action; and strong institutional checks and balances, which are bolstered by an entrenched ‘minimum core’ of a democratic constitution. However, a more flexible set of constraints are appropriate in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators. 

Some aspects of this model can be achieved through formal constitutional design, and other aspects through a responsive approach to constitutional construction by courts. Constitutional design and constitutional construction will thus be potential complements as well as partial substitutes in realising a responsive model of constitutionalism. But there are also aspects of responsive constitutionalism that are beyond the scope of formal design or construction, and which depend on a supportive political and legal culture. For instance, the influence of responsive ideas on formal constitutional choices will depend on whether political elites and civil society actors support the logic of shared, balanced and/or tiered constitutional design. The effectiveness of these choices will depend on the independence and political support for institutions such as courts and ‘fourth branch’ bodies. And their continued implementation will depend on an ethos of both responsibility and restraint on the part of judges and legislators. Describing what responsive constitutionalism should look like, therefore, is not the same as saying what it would look like in different countries. This is a deeply important task, but one the article only begins to undertake. 

The article illustrates these arguments by reference to examples of constitutional electoral regulation in Australia, Kenya and the UK, as well as broader examples of the non-protection of constitutional rights in Australia. These systems share a common law and democratic parliamentary tradition, and as a group, they have a range of important similarities. But they also differ in the balance they strike between legal and political models of constitutionalism. The UK is well-known as an exemplar of political constitutionalism but has also added important elements of legal protection for constitutional rights – both by accession to the European Convention on Human Rights and adoption of the Human Rights Act 1998 (HRA 1998). The Australian constitutional system combines elements of both legal and political constitutionalism, but is notable in its continued emphasis on positive, political constitutional models for the protection of rights. And the 2010 Kenyan Constitution envisages both legal and political models of enforcement but goes much further in legally entrenching a wide range of democratic constitutional commitments.  In addition, the article draws on examples from Canada, New Zealand and South Africa to illustrate the broader terrain of democratic constitutional possibilities within the common law world. None of these examples prove the appeal of responsive constitutional approaches, over rival approaches. They simply show the plausibility of certain aspects of responsive constitutionalism in real world constitutional settings, and help demonstrate certain finer-grained aspects of the theory. 

The remainder of the article is divided into five parts. The second part sets out different understandings of democracy, and how a responsive approach attempts to reconcile both thin and thick understandings of democracy through the idea of a democratic ‘minimum core’ and broader, more democratically mediated notions of deliberation and constitutional rights. The third part sets out the idea of responsive constitutionalism as a model of shared legal and political authority, or one that depends on both legal and political forms of constitutionalism. The fourth considers the relationship between responsive constitutional ideas and notions of positive and negative constitutionalism, and how a responsive approach favours a balanced approach to both constraining and empowering democratic states. The fifth part explores the relationship between these ideas and notions of constitutional entrenchment, and how a responsive approach points to a ‘tiered’ approach to constitutional design, but also a quite distinct one, in which the democratic minimum core and only that core enjoys heightened protection against legislative override or amendment. The sixth part considers the relevance of responsive ideas to constitutional design and construction, while the seventh offers a brief conclusion on the promise and limits of formal constitutional design and construction as capable of realising responsive constitutional ideals.

Secrecy

The Attorney-General has released the report of the review of Commonwealth secrecy provisions, which 'addresses concerns raised by multiple reviews about the number, inconsistency, appropriateness and complexity of Commonwealth secrecy offences'. 

The report states 

2. In 2009, the Australian Law Reform Commission (ALRC) issued a report, Secrecy Laws and Open Government in Australia (the ALRC Report). The ALRC concluded that the number of secrecy offences was at odds with the general shift towards open and accountable government. The ALRC Report recommended reforms to repeal the then-existing offences in the Crimes Act 1914 (Crimes Act)2 and replace them with new general secrecy offences targeted to protect essential public interests. 

3. While new general secrecy offences were enacted in 2018,3 the number of secrecy provisions in Commonwealth laws has continued to grow. At the time of the ALRC report, there were 506 secrecy provisions in Commonwealth primary and subordinate legislation. Today – taking into account the general secrecy offences, specific secrecy offences and non-disclosure duties given criminal liability by section 122.4 of the Criminal Code Act 1995 (Criminal Code) – there are 875. 

4. The utility of secrecy offences in protecting certain information from being disclosed has come into focus more recently due to an increase in the frequency of data breaches, including the Optus and Medibank data breaches in 2022. PwC Australia’s alleged breach of confidence, brought to light in 2023, has similarly raised concerns about the adequacy and appropriateness of secrecy offences, including their coverage of those who receive confidential information from government on the one hand and their restriction of information-sharing between Commonwealth agencies on the other. 

5. In undertaking the task to inquire and report on secrecy provisions in Commonwealth laws and appropriate reforms, the Review was guided by the above context and the following key considerations:

1) Open and accountable government is fundamental to our democracy, and secrecy offences sit within a broader context of mechanisms that protect or facilitate access to Commonwealth information. 

2) Secrecy offences play a legitimate and important role in protecting the confidentiality of certain Commonwealth information where an unauthorised disclosure or other dealing may cause harm to public interests, such as national security and public safety, or harm to the relationship of trust between individuals and/or entities and the Australian Government. 

3) Criminal liability for unauthorised disclosures should be limited to the extent needed to protect essential public interests. Other sanctions (administrative or civil) may be more appropriate to deter and respond to unauthorised disclosures. 

6. The Review identified and considered the following secrecy offences across 238 Commonwealth laws: 11 general secrecy offences in Part 5.6 of the Criminal Code; 295 non-disclosure duties in 102 Commonwealth laws which attract criminal liability under section 122.4 in Part 5.6 of the Criminal Code;569 specific secrecy offences in 183 Commonwealth laws. 

7. The Review also identified 25 override provisions in 20 Commonwealth laws that operate to exclude secrecy offences in other Commonwealth laws. Scope of the Review 8. The Review’s terms of reference are at Appendix A. The Review was directed to conduct an inquiry and report on:

• any specific secrecy offences in Commonwealth legislation that are no longer required in light of the introduction of the general secrecy offences in the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) 

• the suitability and appropriate framing of the general and specific secrecy offences in Commonwealth legislation, having particular regard to: – the principles outlined in the ALRC Report, and – other relevant principles, including but not limited to those set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) 

• any amendments to general and specific secrecy offences in Commonwealth legislation that are necessary to adequately protect individuals who provide information to Royal Commissions balanced against other essential public interests, and 

• any amendments that are necessary to adequately protect public interest journalism balanced against other essential public interests. 

9. In January 2023, the Review provided an interim report to the Attorney-General that focused on protections for individuals providing secrecy-regulated information to Royal Commissions. This issue is considered further in Part 5, and the interim report is at Appendix D. 

10. The Review did not consider secrecy offences in the National Security Information (Criminal and Civil Proceedings) Act 2004 (consistent with Review’s terms of reference). The Independent National Security Legislation Monitor (INSLM) is currently considering these secrecy offences as part of a Review of the operation and effectiveness of the National Security Information (Criminal and Civil) Proceedings Act 2004.7 The INSLM is due to provide a final report to the Attorney-General by 31 October 2023. 

11. Further, issues around whistleblower protections are being considered as part of the review of the Public Interest Disclosure Act 2013 (PID Act), as are reforms to implement recommendations arising from the Parliamentary Joint Committee on Intelligence and Security (PJCIS) Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press (PJCIS Press Freedom Report). This data has been updated from the Review’s March 2023 consultation paper data. These updates are attributable to enactment of provisions, repeal of provisions, identification of additional provisions, and identification that some provisions were not secrecy provisions. Independent National Security Legislation Monitor, ‘Review into the operation and effectiveness of the National Security Information (Criminal and Civil Proceedings) Act 2004’ (2023). 

Consultation 

12. To help inform the Review, consultation was undertaken with all Commonwealth departments and agencies, as well as civil society, media organisations, legal experts and current Royal Commissions. In February 2023, the Attorney-General met with a range of media organisations to discuss issues affecting press freedom, including secrecy offences. In March 2023, the Review released a consultation paper inviting public submissions on the operation of secrecy provisions. The Review received 12 submissions from organisations and members of the public. With submitters’ consent, 10 of these submissions have been published on the Attorney-General’s Department’s website. 

Public consultation 

13. The public submissions to the Review were mostly from civil society, legal and media organisations. Their main concern was that the current state of secrecy law restricts public scrutiny of government processes and operations, and creates a chilling effect on public interest journalism and whistleblowers. They considered there were too many secrecy offences in Commonwealth legislation and that the existing offences were complex and overly expansive.  Submissions were also supportive of a reduction in criminal liability and proposed changes to narrow the application of general and specific secrecy offences to circumstances where there is clear harm to an essential public interest. 

14. However, the Review did not receive submissions from privacy stakeholders and submissions offered limited views on whether it is appropriate for secrecy offences to protect personal and commercial information. The public consultation period also concluded before the publication of PwC Australia’s alleged breach of confidentiality and the Report of the Royal Commission into the Robodebt Scheme and therefore, public stakeholders did not engage in those issues. 

Government consultation 

15. Consultation with Commonwealth departments and agencies sought to understand the particular context and need for secrecy provisions administered by each department, including whether criminal liability was necessary or whether administrative or civil sanctions were appropriate. These consultations included reviewing non-disclosure duties applying to Commonwealth officers that currently attract criminal liability through section 122.4 of the Criminal Code, which sunsets on 29 December 2023. 

16. Feedback indicated that many specific secrecy offences and non-disclosure duties do need to have criminal liability attached. Factors that departments and agencies considered in making their assessments included (but was not limited to):

• differences in the conduct covered by the general secrecy offences and the conduct covered by their specific secrecy offences 

• particular sensitivities of the information protected by specific secrecy offences and non-disclosure duties • whether the offences targeted actual or potential harm that might be caused by unauthorised disclosures 

• the need to assure stakeholders who provide information to government – including the Australian community and foreign partners – that there are appropriate penalties in place for unauthorised disclosure 

• the discrete roles played by different Commonwealth departments and agencies who hold information, for example, whether they are regulators, service providers, intelligence agencies or law enforcement agencies 

• whether there were alternative sanctions that could be better suited to deterring or punishing unauthorised disclosures, and 

• other benefits and implications of applying criminal penalties, such as supporting future decisions about whether a person should be a security clearance holder. 

17. The Review also notes that additional issues have been raised in these consultations about the adequacy of secrecy offences to:

• protect sensitive defence information in light of the changing strategic environment, including AUKUS 

• deter or respond to the broad range of breaches of confidentiality that could occur, including PwC Australia’s recent alleged breach of confidentiality, and 

• the impact of secrecy offences on information-sharing about breaches of confidentiality between departments and agencies. 

The term ‘secrecy provisions’ is used in this report to refer to both specific secrecy offences and non-disclosure duties. The difference between these is discussed further in Part 1. Part 5.6 of the Criminal Code Act 1995 (‘Criminal Code’) defines ‘Commonwealth officer’ to mean individuals employed or engaged by the Commonwealth, including Australian Public Service employees and contracted service providers. The definition also includes individuals appointed or employed by the Commonwealth other than under the Public Service Act 1999 including Commonwealth ministers, statutory office holders and individuals employed by the Commonwealth under other legislation such as the Members of Parliament (Staff) Act 1984. On 10 August 2023, the Government introduced the Counter-Terrorism and Other Legislation Amendment Bill 2023 to Parliament. Schedule 2, Part 2 of the Bill would extend the sunsetting date of section 122.4 of the Criminal Code to 29 December 2024. 

18. The Review developed the following 11 recommendations to guide future work to reduce the number of secrecy offences and support a consistent approach to the framing of secrecy offences 

Recommendation 1: The following principles be adopted for framing Commonwealth secrecy offences going forward: 

• Principle 1: Secrecy offences should be limited to circumstances where there is an essential public interest that requires criminal sanctions. 

• Principle 2: Criminal liability for the protection of Commonwealth information should primarily be imposed through general secrecy offences. 

• Principle 3: Specific secrecy offences should apply where criminal liability differs in significant and justifiable ways from general secrecy offences. 

• Principle 4: A harms-based approach should be taken in framing secrecy offences. Secrecy provisions should: – contain an express harm element – cover a narrowly defined category of information and the harm to an essential public interest is implicit, or – protect against harm to the relationship of trust between individuals and the Government integral to the regulatory functions of government. 

• Principle 5: Secrecy offences that apply to Commonwealth officers should also apply to former Commonwealth officers. 

• Principle 6: Secrecy offences should clearly identify any third parties regulated by the offence and separate offences should apply to third parties. 

• Principle 7: Offences capturing third parties should have a higher threshold for establishing criminal liability. 

• Principle 8: Secrecy offences should clearly identify the conduct regulated. 

• Principle 9: Fault elements for secrecy offences should generally require intention or recklessness (awareness of a substantial risk) in line with the default approach in the Criminal Code Act 1995 (Criminal Code). 

• Principle 10: Secrecy offences should have maximum penalties that reflect the potential seriousness of the conduct. 

• Principle 11: Offence-specific defences should be considered when framing secrecy offences, including to protect public interest journalism. 

• Principle 12: All Commonwealth departments and agencies should regularly review specific secrecy offences in legislation they administer as part of reviews of legislation and legislative instruments. 

Recommendation 2: Legislation be developed to repeal specific secrecy offences and non-disclosure duties identified through this Review’s consultations as no longer being required. 

Recommendation 3: To enable the further reduction of specific secrecy offences and non-disclosure duties, the Attorney-General’s Department develop a new general secrecy offence for inclusion in Part 5.6 of the Criminal Code to ensure Commonwealth officers and persons who perform services for or on behalf of the Commonwealth do not disclose information obtained in connection with their employment or the provision of the service, where that disclosure would be prejudicial to the effective working of Government or where the information was communicated to them in confidence. 

Recommendation 4: If Recommendation 3 is implemented, all Commonwealth departments and agencies identify which specific secrecy offences and non-disclosure duties may then be repealed. 

Recommendation 5: Repeal section 122.4 of the Criminal Code, or allow it to sunset on 29 December 2024. 

Recommendation 6: Repeal the proper place of custody offences in sections 122.1(3) and 122.2(3) of the Criminal Code. 

Recommendation 7: Protections be improved for individuals providing information to Royal Commissions by:

• amending the Royal Commissions Act 1902 to establish: – a framework that clarifies the application of secrecy offences to individuals providing information to Royal Commissions, and – appropriate protective security requirements for Royal Commissions. 

• amending section 122.5 of the Criminal Code to include an additional defence to a prosecution where the information is communicated for the purposes of a Royal Commission.  

Recommendation 8: Legislation be developed to apply a public interest journalism defence similar to the defence in section 122.5(6) of the Criminal Code to additional secrecy offences, to be identified through work following the Review in line with Principle 11 in Recommendation 1. 

Recommendation 9: Legislation be developed as a priority to require the protection of public interest journalism to be considered in decisions on warrant applications, including in the investigation of secrecy offences, as recommended by the Parliamentary Joint Committee on Intelligence and Security in its Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. 

Recommendation 10: The Attorney-General’s Department amend the Commonwealth’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers to include the 12 principles to govern the framing of secrecy offences at Recommendation 1 and develop public information materials on the operation of Commonwealth secrecy offences to increase awareness and understanding about secrecy offences, including protections for public interest journalism. 

Recommendation 11: Request the Independent National Security Legislation Monitor consider, as part of the Monitor’s review of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, the appropriateness of the definitions of ‘inherently harmful information’ and ‘cause harm to Australia’s interests’ contained in Part 5.6 of the Criminal Code.

Proxies

'Surveillance deputies: When ordinary people surveil for the state' by Sarah Brayne, Sarah Lageson and Karen Levy in (2023) 57(4) Law & Society Review 462-488 comments 

 The state has long relied on ordinary civilians to do surveillance work, but recent advances in networked technologies are expanding mechanisms for surveillance and social control. In this article, we analyze the phenomenon in which private individuals conduct surveillance on behalf of the state, often using private sector technologies to do so. We develop the concept of surveillance deputies to describe when ordinary people, rather than state actors, use their labor and economic resources to engage in such activity. Although surveillance deputies themselves are not new, their participation in everyday surveillance deputy work has rapidly increased under unique economic and technological conditions of our digital age. Drawing upon contemporary empirical examples, we hypothesize four conditions that contribute to surveillance deputization and strengthen its effects: (1) when interests between the state and civilians converge; (2) when law institutionalizes surveillance deputization or fails to clarify its boundaries; (3) when technological offerings expand personal surveillance capabilities; and (4) when unequal groups use surveillance to gain power or leverage resistance. In developing these hypotheses, we bridge research in law and society, sociology, surveillance studies, and science and technology studies and suggest avenues for future empirical investigation. 

In 2020, Amazon announced that over 10 million users had joined its “Neighbors” app (Huseman, 2021). The app is integrated into the company's home surveillance devices, including the popular “Ring” doorbell camera—a video-enabled device that enables users to view, speak with, and record their front door area as well as the people who visit it. When a person purchases and installs a Ring doorbell, they are automatically enrolled in the Neighbors app, which enables users to post videos of “suspicious” activities and crimes (including the theft of Amazon packages from their doorsteps; Molla, 2020) and to view similar content posted by other users within five miles of their location. Although these “surveillance as a service” devices are marketed to, purchased, and installed by civilians, the state regularly seeks access to their data (West, 2019). The content collected by Ring cameras is shared directly with more than 2000 police departments across the United States through a combination of subpoenas, warrants, court orders and memorandums of understanding between municipalities or homeowners' associations and local law enforcement agencies (Lyons, 2021). Most often, that content is shared with the state by users who volunteer it to police (Gilliard, 2021; Haskins, 2021). Ring and Neighbors thus represents a convergence of interests among consumers, the state, and one of the largest and most powerful technology companies. Homeowners can protect their property; police have access to previously difficult-to-reach surveillance content; Amazon profits. 

Ring exemplifies the phenomenon of what we term surveillance deputization: when ordinary people use their labor and economic resources to engage in surveillance activities on behalf of the state. Our analysis of the historical development and contemporary forms of surveillance deputization demonstrate that the phenomenon shows no signs of abating, as states continue to implore people to watch and report on one another. Despite its prevalence, sociolegal scholarship has rarely examined surveillance deputization as a coherent phenomenon, and it remains an underspecified mechanism of state power. The case of surveillance deputization illustrates broader forces at play, including neoliberal privatization of state functions, the cultivation of risk and fear, and the interplay between law, technology, and privacy. It also sheds new light on core themes and debates in law and society literature, including legal consciousness, legal mobilization, and legal ambiguity—concepts which consider how ordinary people make sense of ambiguous and rapidly changing legal and quasi-legal contexts. Therefore, we articulate a theoretical framework of surveillance deputization rooted in a law and society approach, describing how it functions, what motivates participation, its implications, and how it intersects with state and corporate interests. We offer four hypotheses about its dynamics and implications: (1) the interest convergence hypothesis; (2) the legal institutionalization hypothesis; (3) the technological mediation hypothesis; and (4) the social stratification hypothesis. 

Our hypotheses draw upon several key themes in the law and society literature. First, surveillance deputization represents a case in which ordinary people must contend with both an ambiguous legal environment and a new suite of technological capabilities. Future law and society scholarship might continue to examine this interplay between lay people's understanding of law and legal rights as they implement new tools that in turn support functions typically relegated to the state. Our hypotheses also invoke concepts of legal mobilization, when both private companies and private individuals actively leverage surveillance to obtain quasi-legal outcomes or aid in legal processes, exposing unclear meanings of the law in the digital, platformed age. Finally, our analysis directly engages law and society scholarship with studies of technology. As we show, the networked, data-intensive technologies that have become the infrastructure of everyday life—like smartphones, Internet of Things (IoT) sensors, software, and digital platforms—are both intensifying and transforming these practices (Ferguson, 2017; Murakami Wood & Monahan, 2019). Our analysis shows how these new devices and capabilities benefit the interests of both the user and the state; they allow more expansive and invasive surveillance capabilities as technology evolves; they allow governments to evade privacy-protective legal constraints; and, while they have the potential to further marginalize vulnerable groups, they can potentially be used to turn the lens back on the state itself. 

Although this article focuses on surveillance deputization, we hope the framework and empirical hypotheses detailed below spurs sociolegal work on questions of how the law deals with technological change, how ordinary people make sense of and contribute to the workings of the legal system, and continuities and changes in the practice of policing and in legal institutions. We begin with a brief social history of surveillance deputization, then explain our analytic and theoretical approach, including the literatures we draw from and the empirical examples we provide. We then move to a discussion of our four hypotheses, laying the groundwork for testable propositions in future empirical work. We close by encouraging scholars to continue to examine whether and how the acceleration of surveillance deputization augments the scope of state surveillance, intensifies the effects of surveillance on marginalized populations, and opens opportunities for collective resistance.

Forensics

The Queensland Government has today accepted the two recommendations of the Commission of Inquiry to examine DNA Project 13 Concerns. The media release states 

 The Commission of Inquiry found Project 13, which introduced automated DNA extraction methods to the Queensland Health forensics laboratory, was a ‘fatally flawed’ project, with scientifically sound methodologies sacrificed for speed while the laboratory was under pressure to accelerate DNA processing, when it was introduced more than 16 years ago. ... 

The recommendations relate to retesting some samples that were previously tested using the flawed Project 13 methodology between 2007 and 2016. 

A total of 103,187 casework samples were extracted using the automated DNA extraction method during that period. A single case can have multiple, sometimes hundreds, of samples. The existing ‘legal-led review’ process will determine which cases need their samples retested, and the priority order. 

Forensic Science Queensland will lead implementation, with efforts rolled into the existing program of work implementing First Commission of Inquiry recommendations. 

Given the findings of both Inquiries, amendments to the rules around the disposal of samples in the Police Powers and Responsibilities Act 2000 will be considered by Parliament next week. Currently, samples taken from a suspect in an indictable offence are to be destroyed after a year if proceedings have not been brought against the person in that time. 

The amendments will extend that time period to three years to ensure testing can be conducted. Additionally, some historical records which were not destroyed by the laboratory in line with the one-year disposal schedule, will have three years to be reviewed. 

A Bill will also be introduced into Parliament next week to give effect to recommendation 121 of the First Commission of Inquiry, to establish the position of Director of Forensic Science Queensland and the supporting Forensic Science Queensland agency. 

The interim FSQ and interim Advisory Board was created administratively within Queensland Health following the First Commission of Inquiry. The Bill will allow formal establishment of FSQ within the justice portfolio, which is expected to be in July 2024. 

Government will take steps to ensure the laboratory has the resources necessary to fulfill its obligations and restore public confidence in its operations.