Paramedic Registration

The Senate Standing Committee on Legal and Constitutional Affairs is inquiring into 'The establishment of a national registration system for Australian paramedics to improve and ensure patient and community safety', with a deadline of 29 January 2016 for submissions.

The inquiry has particular reference to:

• the role and contribution made by those in the paramedic profession, including the circumstances in which they are required to operate;
• the comparative frameworks that exist to regulate the following professions, including training and qualification requirements and continuing professional development: paramedics, doctors and registered nurses;
• the comparative duties of paramedics, doctors and registered nurses;
• whether a system of accreditation should exist nationally and, if so, whether the Australian Health Practitioners Regulation Agency is an appropriate body to do so; 
• the viability and appropriateness of a national register to enable national registration for the paramedic profession to support and enable the seamless and unrestricted movement of paramedic officers across the country for employment purposes; and any other related matters.

Postal Privacy

'Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy' by Anuj C. Desai in (2007) 60(2) Stanford Law Review 553-594 comments

In August 2006, a federal district court held that the Terrorist Surveillance Program violates the Fourth Amendment. Scholars have debated the legality and constitutionality of the program extensively since the New York Times first publicized its existence in December 2005. In this Article, I look beneath the surface of that raging debate to one of the premises underlying the court's conclusion, that the Fourth Amendment protects the confidentiality of communications. I explore the origins of the notion that the Fourth Amendment protects communications privacy.

Most scholars and commentators look to Justice Brandeis's famous dissent in the 1928 case Olmstead v. United States. In this Article, I contend that we must go further back, back to surveillance of the first communications network in the United States, the post office. I explain the history of postal surveillance and show that the principle of communications privacy derives not from the Fourth Amendment or even from the Constitution at all. Rather, it comes from early postal policymakers who put that principle into postal ordinances and statutes in the late eighteenth century. Over time, the principle of communications privacy became embedded into the postal network by both law and custom. It was only then that the Court incorporated it into the Fourth Amendment in the 1878 case Ex parte Jackson, which in turn served as one of the bases of Justice Brandeis's Olmstead dissent. So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have postal policymakers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that early Americans first established that principle.

Analytical Jurisprudence

'Gender and the Analytical Jurisprudential Mind' (Oxford Legal Studies Research Paper No. 46/2015) by Leslie Green asks 

Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.

Green writes

What can feminism contribute to the study of law? A lot. It can help us understand what it is for women to be disadvantaged in law, the varied ways that happens, and the remedies that might be feasible. What can feminism contribute to the study of jurisprudence? This is trickier. Of course, if ‘jurisprudence means law — for instance, case law or general principles of law — then we already have our answer. But what if jurisprudence means the philosophy of law and, in particular, the philosophy of law in the analytic style familiar throughout the Anglophone world and, now, in many other places as well?

There is good feminist writing in the normative branches of jurisprudence that overlap moral and political philosophy. We know what (some) feminists say about the importance of relationships in morality, or about pornography and free speech, or about the connection between domestic equality and political justice. There is no harmony on such issues, but we do have an idea of what a feminist position might look like. When we turn to general questions about the nature of law, however, the very idea of a feminist approach is puzzling. What is a feminist line on whether law contains power conferring rules? What should feminists think about the identity of legal systems over time? What counts as a feminist view on the possibility of vicious legal systems? With respect to such issues no feminist positions come to mind. I think the explanation for that is straightforward. A central feature of feminist theory is attention to gender, and gender is not relevant to any of these problems.

By ‘not relevant’ I mean that no position about gender relations makes any answer to these questions more or less plausible. Suppose you are wondering whether, as Hans Kelsen thought, what appear to be power conferring rules in the law are best seen as fragments of duty imposing rules. No view about gender — what constitutes it, what its social importance is, how it shapes people’s lives — is going to tilt the answer in favour of or against Kelsen’s thesis. By way of contrast, suppose you are wondering whether, as John Rawls thought, the domain of justice is the ‘basic structure’ of a society. Given what we know about the gendered division of power and labour within families, the plausibility of that thesis turns on whether and how the idea of the ‘basic structure’ treats the family. So gender is highly relevant to theories of justice. That is why there are feminist theories of justice but no feminist theories of legal rules. The same goes for most other problems in general jurisprudence: there are no feminist theories of the sources of law, no feminist theories of the existence conditions for legal systems, no feminist theories of the identity of legal systems, no feminist theories of the normativity of law, and so on. We no more expect to see feminist theories in general jurisprudence then we expect to see feminist theories of vagueness or feminist interpretations of quantum mechanics. The reason jurisprudence says so little about gender is that gender is not relevant there.

Or so it seems to me. But in a survey of issues about law and gender, Joanne Conaghan offers a very different diagnosis. She thinks that legal theorists working in general jurisprudence do not say much about gender because they fail to make room for it. Conaghan holds gender to be pervasively relevant, not only to law — no one denies that — but throughout legal philosophy. Things seem otherwise only because men have stacked the deck: ‘the concept of law (to invoke the title of Hart’s famous work) has been endlessly interrogated in terms which do not admit the relevance of gender.’(6) Conaghan offers no direct argument in support of that claim. She does not identify a single ‘interrogation’ of the concept of law that excludes gender where gender is plausibly relevant.

Her case is diffuse and indirect. She sharply criticizes some of my own work in which she detects an ethos that is, she claims, the sort of ethos that conceals the relevance of gender to jurisprudence.   Now, since the work she criticizes is focused on conceptual issues about sex, gender, and marriage, and since it is not work in general jurisprudence, one might wonder how it could serve as evidence for her charge. How could a work treating gender not admit the relevance of gender? How could a work about one local problem in special jurisprudence — the nature of marriage in common law — reveal anything about the relevance of gender to the concept of law? Conaghan’s answer is that it offers ‘a rare glimpse into how sex/gender is conceived in the analytical jurisprudential mind’. (169) She says that glimpse reveals the general ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:

the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features... over others..., evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value neutral account; the overlooking, or at least unexplained disregard, of contra indicative evidence.... (176)

If we would free legal philosophy from this sort of mindset exhibited in my work and allow for the historicity of concepts, if we would prioritize the right features of law and acknowledge we are doing that, if we would play closer attention to empirical evidence, we would find that gender is important to jurisprudence in ways that the ‘analytical jurisprudential mind’ cannot begin to acknowledge. Gender is absent from general jurisprudence, on Conaghan’s view, not because it is irrelevant to it, but because the methods of analytic philosophy screen it out.

If her diagnosis were correct, then to say that analytical jurisprudence has ‘methodological limitations would be an understatement. It would be a failure: (1) To suppose that legal concepts are unchanging flies in the face of the obvious; the law changes and so do some legal concepts. (2) To think we can describe anything without prioritizing some of its features is to misunderstand the nature of description. (3) To overlook or disregard relevant evidence is incompetence or dishonesty. If that is the mess analytical jurisprudence makes of things, I think we would be lucky if its discussions of sex and gender were, as Conaghan thinks, ‘rare’. Unsurprisingly, perhaps, I do not accept that I have blundered in these ways and I shall explain why not. One might doubt whether self defence could be enough to get the whole ‘analytical jurisprudential mind’ off the hook. Perhaps I am not prone to these vices but everyone else is: maybe I escaped a bad upbringing. As we shall see, however, Conaghan’s errors are of a general kind, not only false readings and misattributions, but misunderstandings of analytic jurisprudence. Were they to take hold they would be damaging to the development of feminist legal theory.

Neuropolitics

'Intellectual property for the neurocentric age: towards a neuropolitics of IP' by Jake Dunagan and Debora Halbert in (2015) 5(3) Queen Mary Journal of Intellectual Property 302—326 is described by the authors as seeking to

expand the conversation about the possible new relationships and dilemmas that arise at the nexus between neuroscience, creativity, authorship and intellectual property. This article does not use traditional legal argumentation to understand the future of intellectual property, but rather deploys a scenario-based interrogation of possible future trajectories, a method derived from the discipline of futures studies. Instead, we draw upon a mix of social, legal, political, and technological trends to generate different alternative possibilities. Taken together, emerging insights from the brain sciences and the shifting dynamics of IP law point to a need for a new analytical framework – a neuropolitics of IP law. We ultimately conclude that without a fundamental transformation in how we understand intellectual property and its ownership, the mechanisms in place for expanding corporate control of IP at the expense of the individual should be of serious concern.

Monis Letter Inquiry

The report of the Senate Standing Committees on Legal and Constitutional Affairs inquiry into Handling of a letter sent by Mr Man Haron Monis to the Attorney-General features the following  recommendations

R 1 The committee reminds government agencies and statutory authorities, that where evidence is given in error to a Senate committee, the primary duty of the department or statutory authority is to the committee. Witnesses must bring errors or suspected errors to the attention of the relevant Senate committee as a priority.

R 2  The committee recommends that senior executive staff across the Australian Public Service, including the secretaries of the Department of Prime Minister and Cabinet and the Attorney-General's Department, undergo training in parliamentary accountability provided by the Department of the Senate, including but not limited to seminars routinely provided for senior executives.

R 3 The committee recommends that the Attorney-General's Department: formally draw to the attention of all of its officers' the document search and document management protocol; implement appropriate training programs to ensure adherence to the protocol; and consult with the Australian Government Solicitor for the purpose of reviewing this protocol in a comprehensive and purposeful manner.

R 4  The committee recommends that the Attorney-General's Department: review the allocation of resources across its divisions; undertake formal risk assessments to mitigate risks associated with the cross-divisional movement of staff and the ad hoc use of staff across departmental divisions; and develop and implement training for its staff relating to intra-departmental document management and communications.

R 5  The committee recommends that the Attorney-General's Department implement a training program to ensure that officers responding to correspondence are better aware of the political and cultural connotations of titles and names, especially in relation to known terrorist organisations.

R 6  The committee recommends that the Attorney-General's Department subject its document handling procedures to both regular and random audits, to inform further development of protocols, and training and resource requirements.

R 7 The committee recommends that the Attorney-General's Department routinely consult the relevant intelligence and security agencies in relation to sensitive correspondence, especially where it has or may have national security implications.

R 8 The committee recommends that all Commonwealth government agencies ensure that they have procedures in place to bring sensitive correspondence which has or may have national security implications to the attention of the relevant intelligence and security agencies in a timely manner.

R 9 The committee recommends that the Attorney-General's Department review its procedures related to the application of the Web Guide: Guidelines for Ministerial and Agency Websites in a comprehensive and purposeful manner to ensure that these guidelines are applied consistently, objectively and apolitically.

Availability of Cancer Drugs

The Senate Community Affairs References Committee report Availability of new, innovative and specialist cancer drugs in Australia features the following recommendations -

R 1  The committee recommends that the Australian Government initiate a comprehensive review of the system for the registration and subsidisation of medicines. The review should examine:

• all available pathways for the registration and listing of new medicines, or new indications for medicines already registered on the ARTG and listed on the Pharmaceutical Benefits Scheme, including making provision for utilisation of assessments conducted by comparable overseas regulators; provision for clinicians and/or patient groups to apply for an extension of existing registrations to additional indications, managed access programs and risk-sharing, and the adoption of more flexible evidential requirements;

• options for improving the operation of assessment processes including:

• enhancing engagement with sponsors and other stakeholders to better tailor their applications to the requirements of the PBAC, including consideration of pre-application planning meetings;

• applying tiered assessment processes as a means of matching resources to the complexity of applications;

• encouraging greater cooperation between the PBAC, the TGA and the Medical Services Advisory Committee, including examination of options for enhancing the operation of parallel processing arrangements; and

• ensuring greater transparency throughout the assessment process;

• options for expanding the post-market review of medicines;

• enhancing and formalising mechanisms for consumers and clinicians to play a more central and substantial role in the evaluation of new medicines and new indications for already listed medicines, including:

• consideration of options for expanding consumer and clinician representation on the PBAC;

• enhancing existing avenues for stakeholder input, including the use of consumer and patient hearings; and

• avenues for incorporating public perspectives on overarching moral, ethical and opportunity cost considerations into PBAC decision making processes, including consideration of models employed by comparable overseas regulators; and

• options for ensuring that the necessary administrative and technical resources are available to support the implementation of an enhanced PBAC system.

2  The committee recommends that the Australian Government commission a review of current data collection mechanisms for cancer medicines, including identification of:

• obstacles to the integration of existing databases and potential avenues for addressing these;

• opportunities to incorporate data from post-market evaluations; and

• avenues for capturing data relating to the off-label use of cancer medicines.

R 3 The committee recommends that the Australian Government establish a Steering Committee to examine the feasibility of establishing a national register of cancer medicines.

The report has the following structure -

Chapter 1 sets out the context of the inquiry. It provides an overview of the incidence of cancer in Australia and describes the regulatory pathway for the approval of medicines for marketing in Australia and reimbursement of the cost of some of those medicines through the PBS.

Chapter 2 examines the factors that affect the timing and affordability of access to new cancer medicines. It considers the operation of the TGA, the PBAC and the PBS.

Chapter 3 considers the PBAC's approach to the assessment of the cost and effectiveness of new cancer medicines as a prerequisite for listing on the PBS. It also considers the role that consumers and clinicians can play in this process.

Chapter 4 considers the impact of delays in the approvals process for Australian cancer patients. It examines the available pathways for access to cancer drugs not available through the PBS together with the need for timely and accurate information about new cancer medicines.

Chapter 5 examines some alternate models for facilitating access to new and innovative cancer drugs together with the need for improved data collection to support such models.

Chapter 6 presents the committee's conclusions and recommendations.

Wrongs Amendment Bill 2015 (Vic)

The Wrongs Amendment Bill 2015 (Vic) reflects the Victorian Competition and Efficiency Commission (VCEC) review of the state's personal injuries legislation, evident in last year's VCEC Adjusting the Balance: Inquiry into Aspects of the Wrongs Act 1958 report.

The Bill is described in the 2nd Reading Speech -

In 2002 and 2003 significant reforms were made to Victoria's personal injuries laws as part of a nationwide tort law reform project in the wake of the collapse of HIH Insurance in 2001. The reforms were designed to restrict some common-law rights to compensation for negligence in order to reduce insurers' liability for damages, with the aim of relieving pressure on insurance premiums and ensuring the availability of insurance.

While there is evidence to suggest that the tort law reform project was successful in reducing insurance premiums, there are concerns that the reforms have disproportionately affected the rights of claimants to access damages, and some deserving claimants have been denied compensation.

In 2013 the Victorian Competition and Efficiency Commission reviewed the personal injury provisions of the Wrongs Act to identify any anomalies or inconsistencies, in order to ensure that the act is operating fairly and is not excluding genuine claimants from accessing compensation. The commission was asked to make recommendations for improvement to the act that would not place undue pressure on the price or availability of insurance.

The bill gives effect to most of the recommendations in the commission's report, and will make it easier for certain types of claimants to access compensation for their injuries. It is a responsible, evidence-based reform package.

The current whole-person impairment threshold for access to damages for non-economic loss, which compensates for pain and suffering and loss of enjoyment of life, is 'greater than 5 per cent'. The bill will lower this threshold for claimants with spinal injuries to '5 per cent or more', which recognises that spinal injury impairments are only assessed in increments of 5 per cent. This will mean that some claimants who suffer from spinal injuries who are presently unable to access compensation for non-economic loss will be able to do so, reflecting the fact that spinal injuries often have a major impact on a claimant's overall quality of life.

The bill will also lower the impairment threshold for claimants with psychiatric injuries, from 'greater than 10 per cent' to '10 per cent or more', which will slightly increase the pool of claimants who are eligible for compensation for psychiatric injuries.

The bill will also increase the maximum amount of damages that can be awarded for non-economic loss, from $497 780 to $577 050. This will bring the Wrongs Act into line with the Victorian workers compensation scheme, and will be of particular benefit to young or catastrophically injured plaintiffs, by allowing them to access more compensation for their injuries.

The bill will benefit injured parents and carers by reinstating a limited entitlement to damages for the loss of capacity to care for dependants. This head of damages formerly existed at common law but was abolished by the High Court of Australia in 2005. Reinstating the head of damages recognises the value of the work that is performed by parents and carers in the home, and the significant financial stress that can be placed on families as a result of the injury or death of a parent or caregiver.

The bill also makes changes to the cap on damages for economic loss so that it operates more fairly with respect to people with high earning capacity and their dependants.