Disaster Resilience

The Australian Business Roundtable for Disaster Resilience & Safer Communities has released  Building an Open Platform for Natural Disaster Resilience Decisions [PDF], a report that "provides an overview of natural disaster data and research in Australia" and claims to identify strengths and weaknesses of Australia's approach to natural disaster data and research and examine best-practice examples from around the world and from other Australian sectors.

It states that

The financial and emotional burden of natural disasters in Australia has been great and the costs of extreme weather events continue to rise.

To help make better, more informed decisions regarding safety from and resilience to natural disasters, it is imperative that communities, businesses and governments can access the latest research founded on accurate data.

The stakes are high

This report builds on previous work commissioned by the Australian Business Roundtable for Disaster Resilience and Safer Communities, which analysed the opportunities for Australia to design a more sustainable and comprehensive national approach to making communities safer and more resilient.

‘Building our Nation’s Resilience to Natural Disasters’ demonstrated that the economic cost of natural disasters to Australian communities amounts to an average of $6.3 billion per year, with $700 million of that borne by all levels of government, the majority of which is spent on post disaster relief and recovery. By 2050, this is forecast to rise to $23 billion per year, with a total government budget impact of around $2.3 billion annually in present value terms.

Carefully targeted disaster mitigation investments can reduce these costs. For example, an annual investment of $250 million over the period to 2050 could generate government savings of around $12.2 billion, in present value terms, if carefully targeted to achieve an overall benefit-cost ratio of 1.25.

Providing wider access to accurate, relevant natural disaster data and research could increase government savings by between $500m and $2.4 billion in present value terms, over the period to 2050. Data and research which facilitates targeted and prioritised investment has the potential to deliver higher overall benefit-cost ratios of between 1.3 and 1.5. Based on this, total savings to government could rise to anywhere between $12.7 and $14.6 billion in present value terms, over the period to 2050.

However, without access to critical data and research, communities, businesses and governments cannot make informed decisions on how to target these investments to achieve the greatest impact.

This report investigates the decision-making challenge and identifies the strengths and weaknesses of Australia’s approach to natural disaster data and research. It recommends a way forward to support Australia as it designs a more sustainable and comprehensive national approach to making communities safer and more resilient. Notably, the effectiveness and sustainability of Australia’s natural disaster funding arrangements is currently the subject of a Productivity Commission Inquiry. The purpose of the Inquiry is to identify reforms to achieve a balance between recovery and mitigation to help communities better prepare for disasters.

The Roundtable argues that

Accurate data and research is fundamental to better understanding natural disasters and their impact on communities, businesses and governments. It is essential to supporting better decision-making and prioritising mitigation investments to build a safer Australia. Optimal decisions on resilience investments require access to high quality data and research.

However, the process of linking data and research to end users for optimal decision-making is a challenge faced by many countries. Natural disaster resilience is an interdisciplinary issue. Multiple agencies are involved in collecting data and undertaking research. This results in numerous platforms to access and utilise the range of necessary information, increased search costs and complexity and disparity in understanding. ... [T]he key set of inputs required by end users consists of:

• Foundational data – data that provides the basic layers of locational information. This includes information on the characteristics of assets at risk, community demographics, topography and weather, and is also used for a range of other purposes. 

• Hazard data – hazard specific information on the risks of different disaster types, providing contextual data about the history of events and the risk profile for Australian locations. 

• Impact data – data on the potential and actual impacts associated with natural disasters, including information on historical costs and damage, and the current and predicted future value at risk. 

• Research activities – activities that draw on data and seek to answer specific research questions across a range of areas. There is often also feedback from research to data, where research outputs build on the existing stock of data that is available.

The information needs of end users across communities, businesses and governments vary significantly. In order to increase the safety, resilience and productivity of Australian communities, it is imperative that data and research is accessible in consistent formats and is fit for a variety of purposes.

The report notes that

Australian and state government policies recognise the importance of providing access to information and in supporting research activities to drive resilience and productivity. For instance, through the 2010 Declaration of Open Government, the Australian Government publically committed to providing public sector information that is useable and accessible (Department of Finance, 2010).

This is consistent with experiences in international jurisdictions and other sectors in Australia, such as the US Open Government Initiative, the National Observatory for Natural Hazards in France, and the approach to the curation and supply of financial data undertaken by the Australian not-for-profit company, Sirca.

In practice, a large number of stakeholders across Australia are making valuable contributions to the body of knowledge on natural disasters and resilience, combining expertise from numerous disciplines, including earth science, psychology, health, engineering, construction, economics and information technology. This encompasses at least seven Australian Government departments and agencies, all eight state and territory governments, many local councils, six major research institutions, 24 universities and numerous private sector firms and agencies.

While the total costs of data collection are uncertain, this review has identified over $283 million in public funding for natural disaster research activities in Australia between 2009 to 2021. Over 40% of this investment is directed towards disaster risk reduction research efforts, with the remaining 60% allocated to research on disaster response and recovery.

Notably, significant barriers remain that restrict optimal decision-making that is dependent on and informed by data and research. This limits our progress towards a more resilient Australia.

Gaps and barriers to optimal decision-making

The approach to data and research into natural disasters in Australia has no comprehensive mechanisms to ensure that these inputs are available in a consistent and appropriate format for the spectrum of end users involved in decisionmaking. This review highlights some of the key barriers and gaps in the data and research systems, respectively.

Data

There is evidence of gaps in the critical data inputs required to inform resilience investments. This significantly limits the ability of various stakeholders to understand the exposure of different communities and the true extent of losses that might arise should a natural disaster occur. These issues are compounded by barriers which restrict access by end users to critical data. These barriers include:

• Reluctance to share data – for example, the potential legal implications from data sharing are an issue of particular concern for local government • Restrictive licensing arrangements which prevent wider distribution and use of data • High costs of collection which encourages a piecemeal approach to the development of critical data inputs • A lack of co-ordination and standardisation, which impedes the ability of end users to pull together data from different sources on a consistent basis • High cost of providing accessibility and transparency which weakens incentives for data sharing where the broader range of benefits are unclear. These barriers lead to duplication of data collection, higher transaction costs of using data and restricted access for end users.

To the extent that the benefits for the full range of end users exceed the costs of providing data, the current arrangement is inefficient, and fails to deliver the best outcome for Australian communities and taxpayers.

Research

From the evidence of research activities identified by this review, it has been found that less funding is directed towards understanding the effect of mitigation, value at risk and the process of coping with natural disasters compared with other areas of research such as risk management, vulnerability, hazard detection, policy and decision support. This limits the ability of decisionmakers to understand the baseline costs associated with exposure to natural disasters, as well as the benefits that could be achieved through mitigation.

Furthermore, while it is evident that there are strong networks among Australian researchers, from an end user perspective it is difficult to identify what relevant research activities are being undertaken, and to leverage research findings to better inform decision-making on resilience investments. While projects undertaken by the newly established Bushfire and Natural Hazards Cooperative Research Centre (BNHCRC) explicitly involve end users, this practice should be adopted more broadly. This could be supported through better transparency and evaluation of the outcomes of research activities.

The Roundtable's recommendations are

Consistent with the recommendation of ‘Building our Nation’s Resilience to Natural Disasters’, a National Resilience Advisor within the Department of Prime Minister and Cabinet would be well placed to address these issues. Developing resilient communities should be elevated to the centre of government decision-making to deliver effective and efficient co-ordination of activities across all levels of government, business and communities. Specifically, there is a need for continuous involvement of the full spectrum of end users in the development and application of natural disaster data and research, to unlock the full potential of Australia’s data and research capabilities.

This should be directly supported by a Business and Community Advisory Group to facilitate a more co-ordinated response and ensure that business and the not-for-profit sector are represented at the highest levels of policy development and decision-making.

More specifically, there are  three recommendations for an enhanced approach to natural disaster information.

The recommendations focus on the benefits possible through optimal end user decisions around data and research:

Efficient and open - deliver a national platform for foundational data Given that foundational data is used for a broad range of purposes, beyond the scope of natural disaster issues, the Australian Government should provide a single point of access for all Australians. While weather information and data on community demographics is consistently provided by the Bureau of Meteorology and the Australian Bureau of Statistics respectively, allocation of responsibility for consistent topography and geocoded asset data at the national level is required. A national platform for this broader key data would facilitate prioritisation across local government and state borders in the national interest.

Transparent and available - remove barriers to accessibility of data and research Access to data and research is restricted. Greater transparency across the system is required to identify the full range of end users and allow for the development of a system of optimal access which weighs up overall costs and benefits. There is a need for clear delegation of responsibility for hazard and impact data (such as hazard mapping) and a stronger approach for involving end users in research. This should also address concerns with legal liability, unnecessarily restrictive licensing and ensure standardisation across jurisdictions.

Enabling effective decision-making - establish a prioritisation framework A national prioritisation framework for investment in resilience should be established, consistent with the approach adopted by Infrastructure Australia1. This will enable best practice use of natural hazard data and research to be collected and disseminated and ensure an optimal outcome from investment in resilience for Australia, through focus on consistent, evidence-based cost-benefit analyses. This approach would build a common understanding of the nation’s areas of highest risk and also the most effective measures to reduce that risk and assist in prioritising the research agenda.

UN HRC Privacy Report

The United Nations High Commissioner for Human Rights has released a short and formulaic report [PDF] on The right to privacy in the digital age

In its resolution 68/167, the General Assembly requested the United Nations High Commissioner for Human Rights to submit a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, to the Human Rights Council at its twenty-seventh session and to the General Assembly at its sixty-ninth session, with views and recommendations, to be considered by Member States. 

The Council, international relations being what they are, is an entity that on occasion has featured nations such as Iran and Syria that are guilty of egregious human rights abuses.

The Commissioner states

Deep concerns have been expressed as policies and practices that exploit the vulnerability of digital communications technologies to electronic surveillance and interception in countries across the globe have been exposed. Examples of overt and covert digital surveillance in jurisdictions around the world have proliferated, with governmental mass surveillance emerging as a dangerous habit rather than an exceptional measure. Governments reportedly have threatened to ban the services of telecommunication and wireless equipment companies unless given direct access to communication traffic, tapped fibre-optic cables for surveillance purposes, and required companies systematically to disclose bulk information on customers and employees. Furthermore, some have reportedly made use of surveillance of telecommunications networks to target political opposition members and/or political dissidents. There are reports that authorities in some States routinely record all phone calls and retain them for analysis, while the monitoring by host Governments of communications at global events has been reported. Authorities in one State reportedly require all personal computers sold in the country to be equipped with filtering software that may have other surveillance capabilities. Even non-State groups are now reportedly developing sophisticated digital surveillance capabilities. Mass surveillance technologies are now entering the global market, raising the risk that digital surveillance will escape governmental controls. 

Concerns have been amplified following revelations in 2013 and 2014 that suggested that, together, the National Security Agency in the United States of America and General Communications Headquarters in the United Kingdom of Great Britain and Northern Ireland have developed technologies allowing access to much global internet traffic, calling records in the United States, individuals’ electronic address books and huge volumes of other digital communications content. These technologies have reportedly been deployed through a transnational network comprising strategic intelligence relationships between Governments, regulatory control of private companies and commercial contracts.

The report's conclusions are

International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data. Practices in many States have, however, revealed a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight, all of which have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy. 

In addressing the significant gaps in implementation of the right to privacy, two observations are warranted. The first is that information relating to domestic and extraterritorial surveillance policies and practices continues to emerge. Inquiries are ongoing with a view to gather information on electronic surveillance and the collection and storage of personal data, as well as to assess its impact on human rights. Courts at the national and regional levels are engaged in examining the legality of electronic surveillance policies and measures. Any assessment of surveillance policies and practices against international human rights law must necessarily be tempered against the evolving nature of the issue. A second and related observation concerns the disturbing lack of governmental transparency associated with surveillance policies, laws and practices, which hinders any effort to assess their coherence with international human rights law and to ensure accountability. 

Effectively addressing the challenges related to the right to privacy in the context of modern communications technology will require an ongoing, concerted multi-stakeholder engagement. This process should include a dialogue involving all interested stakeholders, including Member States, civil society, scientific and technical communities, the business sector, academics and human rights experts. As communication technologies continue to evolve, leadership will be critical to ensuring that these technologies are used to deliver on their potential towards the improved enjoyment of the human rights enshrined in the international legal framework. 

Bearing the above observations in mind, there is a clear and pressing need for vigilance in ensuring the compliance of any surveillance policy or practice with international human rights law, including the right to privacy, through the development of effective safeguards against abuses. As an immediate measure, States should review their own national laws, policies and practices to ensure full conformity with international human rights law. Where there are shortcomings, States should take steps to address them, including through the adoption of a clear, precise, accessible, comprehensive and non-discriminatory legislative framework. Steps should be taken to ensure that effective and independent oversight regimes and practices are in place, with attention to the right of victims to an effective remedy. 

There are a number of important practical challenges to the promotion and protection of the right to privacy in the digital age. Building upon the initial exploration of some of these issues in the present report, there is a need for further discussion and in-depth study of issues relating to the effective protection of the law, procedural safeguards, effective oversight, and remedies. An in-depth analysis of these issues would help to provide further practical guidance, grounded in international human rights law, on the principles of necessity, proportionality and legitimacy in relation to surveillance practices; on measures for effective, independent and impartial oversight; and on remedial measures. Further analysis also would assist business entities in meeting their responsibility to respect human rights, including due diligence and risk management safeguards, as well as on their role in providing effective remedies. 

Post-Snowden changes to Aust National Security Law

The National Security Legislation Amendment Bill (No. 1) 2014 (Cth) introduced in the Australian Parliament today is intended to "modernise and improve the legislative framework that governs the activities of the Australian Intelligence Community", primarily the Australian Security Intelligence Organisation Act 1979 (Cth) and the Intelligence Services Act 2001 (Cth).

It is of particular interest as a response to Wikileaks and Snowden and for a more permissive approach to device/network access by national security agencies.

It reflects the 2013 Potential Reforms of Australia’s National Security Legislation report by the Parliamentary Joint Committee on Intelligence and Security, along with "some additional measures to update and strengthen the secrecy offences in the ASIO Act and the IS Act in relation to the intentional unauthorised communication, handling or treatment of intelligence-related information".

The Government states that

The Bill enhances the capability of our intelligence agencies in seven key areas:

• Modernising ASIO’s statutory employment framework (Schedule 1) 

• Modernising and streamlining ASIO’s warrant-based intelligence collection powers (Schedule 2) 

• Strengthening ASIO’s capability to conduct covert intelligence operations, with appropriate safeguards and oversight (Schedule 3) 

• Clarifying and improving the statutory framework for ASIO’s co-operative and information-sharing activities (Schedule 4) 

• Enhancing the capabilities of IS Act agencies (Schedule 5) 

• Improving protection of intelligence-related information (Schedule 6), and 

• Renaming of Defence agencies to better reflect their roles (Schedule 7). 

Schedule 1 modernises ASIO Act employment provisions to more closely align them with Australian Public Service (APS) standards, streamlines and simplifies terminology used to describe employment and other relationships and makes consequential amendments to a range of other Acts

Schedule 2 modernises and streamlines ASIO's warrant based intelligence collection powers, including in relation to computer access warrants, surveillance devices and warrants against an identified person of security concern

Schedule 3 provides ASIO employees and ASIO affiliates with limited protection from criminal and civil liability in authorised covert intelligence operations (referred to as 'special intelligence operations')

Schedule 4 clarifies the ability of ASIO to co-operate with the private sector and enables breaches of section 92 of the ASIO Act, related to non-disclosure of identity obligations, to be referred to law enforcement agencies for investigation

Schedule 5 amends the IS Act to

enable Australian Secret Intelligence Service (ASIS) to undertake a new function of co-operating with ASIO in relation to the production of intelligence on Australian persons in limited circumstances, will create a new ground of Ministerial authorisation enabling ASIS to protect its operational security and will allow ASIS to train certain individuals in use of weapons and self-defence techniques. It will also extend immunity for IS Act agencies for actions taken in relation to an overseas activity of the agency, provide a limited exception for use of a weapon or self-defence technique in a controlled environment and clarify the authority of the Defence Imagery & Geospatial Organisation (DIGO) to provide assistance 

Schedule 6 relates to the protection of intelligence-related information by creating two new offence provisions and updating existing offence provisions, including by increasing penalties in the IS Act and ASIO Act.

Schedule 7 provides for the formal renaming of DIGO as the Australian Geospatial Intelligence Organisation (AGO) and the Defence Signals Directorate (DSD) as the Australian Signals Directorate (ASD).

The legislation is expected to update ASIO Act employment provisions to more closely align them with the APS standards, providing for the secondment of staff to and from ASIO and facilitating the transfer of ASIO employees to APS agencies while protecting their identity.

The Bill also seeks to enhance ASIO’s intelligence-collection powers by:

• enabling it to obtain intelligence from a number of computers (including a computer network) under a single computer access warrant, including computers at a specified location or those which are associated with a specified person 
• amending the current limitation on disruption of a target computer 
• allowing ASIO to use third party computers and communications in transit to gain access to a target computer under a computer access warrant 
• modernising provisions related to surveillance devices to better align them with the Surveillance Devices Act 2004 and improving their functionality and operation 
• establishing an identified person warrant for ASIO to utilise multiple warrant powers against an identified person of security concern 
• enabling warrants to be varied by the Attorney-General where minor changes in circumstances or administrative errors are identified 
• facilitating the Director-General of Security to authorise a class of persons able to execute warrants rather than listing individuals 
• clarifying that the search warrant, computer access, surveillance devices and identified person warrant provisions authorise access to third party premises to execute a warrant, and 
• clarifying that force which is necessary and reasonable to do things specified in the warrant may be used at any time during the execution of a warrant, not just on entry 

The Bill seeks to introduce an evidentiary certificate regime in relation to special intelligence operations and specific classes of warrants issued under Division 2 of Part III of the ASIO Act to protect the identity of employees, sources and sensitive operational capabilities. The legislation is intended to

• provide limited protection from criminal and civil liability for ASIO employees and affiliates, in relation to authorised special intelligence operations, subject to appropriate safeguards and accountability arrangements 
• confirm ASIO’s ability to co-operate with the private sector 
• enable breaches of section 92 of the ASIO Act (publishing the identity of an ASIO employee or affiliate) to be referred to law enforcement for investigation when it is not otherwise relevant to security 
• enable the Minister responsible for ASIS to authorise the production of intelligence on an Australian person who is, or is likely to be, involved in activities that pose a risk to, or are likely to pose a risk to, the operational security of ASIS
• enhance the ability of ASIS, without a Ministerial authorisation, to co-operate with ASIO when undertaking less intrusive activities to collect intelligence relevant to ASIO’s functions on an Australian person or persons overseas in accordance with ASIO’s requirements
• enhance the ability for ASIS to train staff members of a limited number of approved agencies that are authorised to carry weapons in the use of weapons and self-defence and ensuring that ASIS is not restricted in limited circumstances from using a weapon or self-defence technique in a controlled environment (such as a gun club or rifle range or martial arts club) 
• clarify the DIGO’s authority to provide assistance to Commonwealth, State and Territory authorities (and certain non-government bodies and foreign governments approved by the Minister for Defence) 
• extend the protection available to a person who does an act preparatory to, in support of, or otherwise directly connected with, an overseas activity of an IS Act agency to an act done outside Australia, and 
• enhance protections for information and records acquired or prepared by or for an intelligence agency in connection with the performance of its functions

That post-Snowden and post-Wikileaks enhancement involves -

• updating sections 39, 39A and 40 in the IS Act, and increasing the penalties for existing unauthorised communication of information offences in the ASIO Act and the IS Act from two to ten years, to better reflect the culpability inherent in such wrongful conduct 
• extending the existing unauthorised communication offences in the IS Act to the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) 
• creating a new offence in the ASIO Act and the IS Act, punishable by a maximum of three years imprisonment, where a person intentionally deals with a record in an unauthorised way (for example, by copying, transcription, retention or removal), and 
• creating a new offence in the ASIO Act and the IS Act, punishable by a maximum of three years’ imprisonment, in relation to persons who intentionally make a new record of information or matter without authorisation.

US Data Breach Metrics

The 24 page Information Exposed: Historical Examination of Data Breaches in New York State report [PDF] from the state Attorney General's office drew on mandatory reporting in offering some metrics on data breaches in the US.

A corresponding tabulation and analysis by government in Australia would be welcome.

The Attorney General comments that

the number of reported data security breaches in New York more than tripled between 2006 and 2013. As a result, in just eight years, the number of victims in New York has exploded. Over 22 million personal records have been exposed since 2006, jeopardizing the financial health and well-being of countless New Yorkers and costing the public and private sectors in New York — and around the world — billions of dollars. … 

Nearly 5,000 individual data breaches were reported to the NYAG by businesses, nonprofits, and government entities between 2006 and 2013. Together, these breaches exposed 22.8 million personal records of New Yorkers. The number of data security breaches reported annually to the NYAG more than tripled between 2006 and 2013 – and 2013 was a record-setting year, during which 7.3 million records of New Yorkers were exposed. So-called mega-breaches are also becoming increasingly common: Five of the ten largest breaches reported to the NYAG have occurred since 2011. 

In 2013, data breaches cost entities conducting business in New York upward of $1.37 billion. The overall cost of data security breaches is nothing short of staggering: In 2013 alone, breaches are estimated to have cost organizations doing business in New York State over $1.37 billion. Hacking intrusions – in which third parties gain unauthorized access to data stored on a computer system – were the leading cause of data security breaches among organizations conducting business in New York State, accounting for roughly 40 percent of all breaches between 2006 and 2013. Hacking attacks are driven primarily by the black-market value of personal information, which can fetch up to $45 per record. Reports of insider wrongdoing and inadvertent exposure have increased over the past eight years, with incidents of insider wrongdoing reaching their highest level in 2013. Although instances of lost or stolen equipment/documentation declined in recent years, these incidents are responsible for a significant portion of data breaches and personal record loss since 2006

Among other statistics the report claims that the 'retail services' sector was most likely to experience (or report?) a data breach, with estimated exposure as follows

Retail Services (54 reported breaches) - 163,319 people 

Financial Services (31) 624,000 

Health Care (29) 1,012,269 

Banking (27) 560,208 

Insurance (20) 72,138 

Professional Services (16) 788,280 

Educational Inst. (15) 103,787 

Government Agency (14) 86,548 

Loan Services (9) 133,866 

Hospitality (8) 16,091 

Technology (7) 13,195 

Telecommunications (4) 80,963 

Credit Reporting (3) 3,120 

Credit Card Company (2) 237,296 

Nonprofit (1) 507 

Public Utility (1) 50,456

Medical Indemnity Claims Data

The Australian Institute of Health & Welfare has released a 175 page report [PDF] on Medical Indemnity Claims 2012-2013.

The report offers data on Australia’s public sector medical indemnity claims, and public and private sector claims combined, from 2008–09 to 2012–13. (There is an exclusion regarding public sector claims for Western Australia, which did not report claims data for 2010–11 to 2012–13.)

The AIHW comments that

Claims arise from allegations of negligence or breach of duty of care by health-care practitioners during the delivery of health services. A new claim is created when a reserve amount is placed against the costs expected to arise in closing the claim. A claim is closed after being finalised through a court decision, a negotiated settlement between claimant and insurer, or discontinuation (either by the insurer, or the claimant’s withdrawing the claim). 

Claim numbers 

The number of new public sector claims was less in 2012–13 (about 950) than any of the previous 4 years (1,200–1,400) while the number of closed public sector claims was higher (about 1,500) compared with the previous 4 years (1,100–1,400). 

The number of new private sector claims remained steady at 3,200 to 3,300 per year from 2010–11 to 2012–13. This was higher than the 2,300–2,500 new private sector claims in 2008–09 and 2009–10.  The number of closed private sector claims increased each year, from 2,400 to 3,800. 

There were about 14,000 public and private sector claims open at some stage during the year for the 2010–11 to 2012–13 years, compared with 12,500 for 2008–09 and 2009–10. 

New claims 

The proportion of new public and private sector claims (combined) against general practitioners was less in 2012–13 (23%) than any of the previous 4 years (28–32%). 

The proportion of new claims against Obstetrics and gynaecology specialists decreased from 12% in 2008–09 to 8% in 2012–13. The proportion of new claims allegedly associated with Digestive, metabolic and endocrine systems increased from 10% to 24% between 2008–09 and 2012–13. 

Closed claims 

Between 2008–09 and 2012–13, there was a decrease in the proportion of public sector claims closed for less than $10,000 and a corresponding increase in the proportion closed for $100,000 to less than $500,000. For public and private sector claims combined, there was little change over the years in the claim size category proportions, including the 63–65% closed for less than $10,000. 

Between 2008–09 and 2012–13 there was a trend towards 2 features associated with less costly claims: a higher proportion of claims associated with a mild rather than a severe extent of harm to the patient, and a shift towards more claims connected with a private medical clinic rather than a public hospital/day surgery. 

Length of time between health-care incident and claim closure 

With public sector claims, the length of time between health-care incident and when a claim was opened was on average about 2 years, and 3 to 4 years between the incident and when a claim was closed. 

The proportion of claims closed within 5 years of the incident fluctuated between 70% and 78% of claims with incident years between 2001–02 and 2007–08.

Recognition

The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples has released its interim report.

The Committee was established to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition, with the resolution stating

 a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition, and in conducting the inquiry, the committee:

• work to build a secure strong multi-partisan parliamentary consensus around the timing, specific content and wording of referendum proposals for Indigenous constitutional recognition; and 

• consider:

• the creation of an advisory group whose membership includes representatives of Aboriginal and Torres Strait Islander people to assist the work of the committee; 

• the recommendations of the Expert Panel on Constitutional Recognition of Indigenous Australians; and 

• mechanisms to build further engagement and support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples across all sectors of the community, and taking into account and complementing the existing work being undertaken by Recognise.

The Expert Panel advising the Committee made the following recommendations:

Recommendations for changes to the Constitution 

That section 25 be repealed. That section 51(xxvi) be repealed. 

That a new ‘section 51A’ be inserted, along the following lines:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples 

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; 

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; 

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; 

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; 

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together. 

That a new ‘section 116A’ be inserted, along the following lines:

Section 116A Prohibition of racial discrimination 

The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

That a new ‘section 127A’ be inserted, along the following lines:

Section 127A Recognition of languages 

The national language of the Commonwealth of Australia is English. The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage. 

Recommendations on the process for the referendum 

In the interests of simplicity, there should be a single referendum question in relation to the package of proposals on constitutional recognition of Aboriginal and Torres Strait Islander peoples set out in the draft Bill (Chapter 11). 

Before making a decision to proceed to a referendum, the Government should consult with the Opposition, the Greens and the independent members of Parliament, and with State and Territory governments and oppositions, in relation to the timing of the referendum and the content of the proposals. 

The referendum should only proceed when it is likely to be supported by all major political parties, and a majority of State governments. 

The referendum should not be held at the same time as a referendum on constitutional recognition of local government. 

Before the referendum is held, there should be a properly resourced public education and awareness program. If necessary, legislative change should occur to allow adequate funding of such a program. 

The Government should take steps, including through commitment of adequate financial resources, to maintain the momentum for recognition, including the widespread public support established through the YouMeUnity website, and to educate Australians about the Constitution and the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples. Reconciliation Australia could be involved in this process. 

If the Government decides to put to referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples other than the proposals recommended by the Panel, it should consult further with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their views in relation to any such alternative proposal. 

Immediately after the Panel’s report is presented to the Prime Minister, copies should be made available to the leader of the Opposition, the leader of the Greens, and the independent members of Parliament. The report should be released publicly as soon as practicable after it is presented to the Prime Minister.

Hohfeld and property

'How to Do Things with Hohfeld' (University of Colorado Law Legal Studies Research Paper No. 14-4) by Pierre Schlag comments

 Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid. 

“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and legal regimes.

My project here is to offer a forward-leaning interpretation of Hohfeld — to show how and why his insights remain highly relevant today. The article engages with the jural relations, decomposition and recomposition, the bundle of relations, the critique of reification, and recent discussions in property theory as well as the “New Private Law.” I am keen on protecting Hohfeld’s platform from some (legal realist) over-extensions as well as showing how the views of the “Hohfeld critics” are in many ways consonant with Hohfeld’s own thinking. The article closes with some questions about the limitations of Hofheld’s approach.

'Liberalism and the Private Law of Property' by Hanoch Dagan in (2014) 1(2) Critical Analysis of Law reviews

Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for private sovereignty, his understanding of the relationship between individual independence and self-determination, and his account of what makes private law private. I argue that Brudner is wrong on all three fronts and, furthermore, criticize his account of the market’s putative legitimation of property and public law’s alleged amelioration of the injustices entailed by a private law libertarian scheme. 

Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for private sovereignty, the relationship between independence and self-determination, and the distinctive nature of private law. This Essay provides preliminary suggestions on all three fronts