Appropriation

'Curbing Cultural Appropriation in the Fashion Industry' ( CIGI Paper No. 213) by Brigitte Vezina comments

The fashion industry has faced several accusations of cultural appropriation over the past decade. For example, American clothing retailer Urban Outfitters made headlines in 2011 when it issued Navajo-themed items, including underwear with traditional patterns, much to the discontent of the Navajo Nation. Likewise, French designer Isabel Marant was criticized in 2015 for designing a dress similar to a traditional blouse that has been made for centuries by the Mixe people, an Indigenous community in Mexico. Cultural appropriation may be summarily described as the taking, by a member of a dominant culture, of a cultural element from a minority culture, without consent, attribution or compensation. 

Cultural appropriation cases spark passionate debate because while fashion’s borrowing of stylistic elements from other cultures is common practice, it can, in reality, be offensive to the holders of traditional cultures. Misinterpretation or disregard for the cultural significance of a traditional cultural expression (TCE), even if unintentional, can have drastic consequences, both culturally and economically. Calls for action to curb appropriation emphasize a need for Indigenous peoples to have better control over their TCEs, including through the intellectual property system and in line with the United Nations Declaration on the Rights of Indigenous Peoples.

Vezina argues

The fashion industry has faced several accusations of cultural appropriation over the past decade. For example, American clothing retailer Urban Outfitters made headlines in 2011 when it issued Navajo-themed items, including underwear with traditional patterns, much to the discontent of the Navajo Nation. Likewise, French designer Isabel Marant was criticized in 2015 for designing a dress similar to a traditional blouse that has been made for centuries by the Mixe people, an Indigenous community in Mexico. Cultural appropriation may be summarily described as the taking, by a member of a dominant culture, of a cultural element from a minority culture, without consent, attribution or compensation. 

Cultural appropriation cases spark passionate debate because while fashion’s borrowing of stylistic elements from other cultures is common practice, it can, in reality, be offensive to the holders of traditional cultures. Misinterpretation or disregard for the cultural significance of a traditional cultural expression (TCE), even if unintentional, can have drastic consequences, both culturally and economically. Calls for action to curb appropriation emphasize a need for Indigenous peoples to have better control over their TCEs, including through the intellectual property (IP) system and in line with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

Cultural appropriation may be explained, in part, by the jarring relationship between TCEs and IP, in particular copyright. While TCEs, such as traditional designs or motifs, are a product of the human mind, extant copyright law fails to provide adequate protection to TCEs, casting most of them into the public domain and thus making them vulnerable to appropriation. For instance, protection remains unavailable for TCEs that have been passed down the generations and thus fail to meet the originality criterion. 

Drawing from actual cases of cultural appropriation in the fashion industry and relying on IP laws and principles, in particular moral rights, a number of recommendations may guide fashion designers into adopting respectful behaviour in relation to the use of TCEs in their creations. Centrally, several concrete policy, legal and practical solutions can be developed at the international level to put an end to cultural appropriation: the IP system can be adapted to offer adequate protection for TCEs; awareness can be raised among fashion designers and consumers alike so as to deter cultural appropriation; and initiatives can be carried out to strategically support Indigenous fashion designers. 

Cultural appropriation is not confined to the world of fashion but manifests itself in other sectors, such as film, music and art. Furthermore, from an Indigenous, holistic viewpoint, TCEs are intrinsically linked to traditional knowledge, and developments in the protection of TCEs can positively impact the protection of traditional knowledge.

3D printing and Designs

'Who's Afraid of 3D Printing' by Ben Depoorter and Bregt Raus in (2019) Boston University Journal of Science and Technology Law comments 

Heralded for ushering in a new era of personalized manufacturing, there is a growing fear that consumer 3D printing is the next frontier of massive intellectual property infringements. Described as the Napster of patents, illegal 3D printing is foretold to disrupt manufacturing in the same manner as digital piracy unsettled the music industry. 

This Article shows that the negative forecast of rampant 3D printing piracy is overstated. We explain how the purported analogies between P2P file sharing and consumer 3D printing overlook essential differences between piracy of media content and physical property. We caution against aggressive enforcement against unauthorized consumer 3D printing that would impede innovation and the development of 3D printing technologies. 

 The authors argue

 Additive manufacturing is predicted to change the world as we know it. By enabling a do-it-yourself manufacturing model for small companies and consumers, 3D printing is expected to set about an "industrial counter-revolution" of sorts, in which manufacturing is no longer synonymous with assembly lines and processing plants. As 3D technologies become more widespread, the average consumer will, from the comfort of his or her own home, be able to use affordable 3D printers to design and manufacture most products currently available in retail markets. 

Consumer 3D printing has experienced a tremendous boost in recent years. The industry's global market value exceeded $7.3 billion in 2018 and is expected to multiply in coming years. A growing group of users — taking advantage of price reductions in 3D printing hardware — are already engaging with this new technology on home computers, manufacturing physical items such as small sculptures, toys, and decorative or useful items. 

However, as new applications of 3D printing emerge and 3D technologies and markets mature, the 3D printing revolution is causing deep anxiety among some intellectual property owners and commentators. There is a fear that Internet users will scan, upload, and distribute unauthorized 3D models of objects over which they have intellectual property rights. There is growing alarm is that in a world with 3D printing, physical consumer goods will be subject to the same fate as HBO's Game of Thrones: massive online piracy. 

Historically, reproduction and distribution costs have limited the scope of illegal markets for patented and trademarked materials. However, by drastically reducing the costs of reproducing physical objects, 3D scanners and printers pave the way to decentralized piracy of items of manufacture. By enabling the conversion of physical materials into digital format – much like MP3 files did for copyrighted works – 3D printing technologies empower individuals to scan and post objects on the Internet, free for others to download and print in physical form. As a result, 3D printing threatens the value of intellectual property rights. Commentators proclaim that 3D printing presents an existential challenge to the core bargain that underlies patent law: the grant of a time-limited exclusive legal right in an invention in exchange for the inventor's disclosure of the invention.  This bargain "may be meaningless in a world of digitized things." 

Some assert that the digitization of physical objects threatens to disrupt manufacturing industries in a similar, if not wholly parallel, manner as experienced by the music industry in the late 1990s. The dogged enforcement campaign by music record labels during that era vividly illustrates the daunting challenge of enforcing intellectual property rights in a setting of mass, decentralized online infringement. In the file-sharing and torrent era, copyright holders face a mass of individual infringers, each of whom are difficult to identify and costly to pursue.16 Infringement occurs inside the home, creating a perception of security and anonymity among infringers. Stakeholders and observers fear that consumer 3D printing might bring a similar Napster doomsday scenario to intellectual property rights-holders more generally. 

This Article argues that concerns as to a future of rampant consumer 3D printing piracy are exaggerated. Analogies connecting P2P file sharing19 and 3D printing are flawed, as they neglect essential differences between the piracy of audiovisual content and physical goods. The anxiety about 3D printing vastly overestimates the future magnitude of 3D piracy markets. Digitization and printing of physical goods involve substantial costs and efforts that were absent in the Napster-MP3 revolution. 3D printing technologies currently impose considerable burdens on users — including expertise, out-of-pocket costs, and an ever-present risk of defective printouts — and will continue to impose burdens for the foreseeable future. These complications will continue to suppress the supply and demand of 3D pirated materials. 

Furthermore, even if advancements in 3D printing technologies were to eliminate all practical limitations, it is unlikely that manufacturing industries will face a Napster scenario as a result of 3D printing piracy. The demand forphysical materials is less concentrated than for music, the social dimension is less strong, warehousing is expensive, and the manufacturing industry can avoid the social backlash that fueled the fires of digital music piracy. As a result, it is highly doubtful that illegal 3D scanning and printing will confront jewellers, fashion designers, and manufacturers of consumer goods such as toys, games, home furnishings, and sports equipment, with the type of industrywide disruption that the music and movie industries experienced. We caution against aggressive enforcement and preemptive regulatory policies. Alarmist overreactions tend to induce regulatory action that is premature, ill-advised and may harm innovation. To counter these adverse effects, we provide insight to the proper scope and timing of regulatory action in relation to 3D printing. 

This Article is organized as follows: Part I describes the basics of 3D printing, explains how it differs from traditional manufacturing, and evaluates the commercial prospects of consumer 3D printing. Part II describes the rising anxiety about 3D printing piracy and establishes the context for that fear, namely, the digital music piracy era associated with Napster. Part III describes various complications of 3D printing that suppress the public supply and demand of pirated 3D materials. Part IV explains essential differences between music piracy and 3D printing. Part V provides policy recommendations. Part VI concludes.

'A first look at the designs repair defence in Australia' by Tyrone Berger in (2019) 14(5) Journal of Intellectual Property Law & Practice 358–359 comments that in GM Global Technology Operations LLC v SSS Auto Parts Pty Ltd [2019] FCA 97 the Federal Court of Australia delivered the first judgment that reviews the repair defence in the Designs Act 2003 (Cth), ruling that spare parts can be acquired for both repair and enhancement, and the defence should be available in such cases.

Berger argues

Car enthusiasts buy less expensive Holden Commodores and upgrade them with parts designed for the top level Holden Special Vehicle (HSV) and comparable models so that they appear as a more costly version. The owners of these genuine vehicles refer to such practices as ‘mutton dressed as lamb’. In response, the applicant GM Global Technology implements controls over the sale of its HSV parts in an attempt to discourage such practices. GM Global Technology became aware in 2013 that the defendant SSS Auto Parts was importing replica parts for HSVs and commenced proceedings alleging that the replicas infringed its designs registered under the Designs Act 2003 (Cth). SSS Auto Parts responded by seeking to rely on section 72 of the Designs Act 2003 (repair defence), which provides that certain repairs do not infringe registered designs. When a defendant raises the repair defence under section 72, the onus is on the registered owner to prove that SSS Auto Parts ‘knew or ought reasonably to have known’ that use of the impugned parts was not for the purpose of repair. In dispute was whether GM Global Technology has discharged its burden by proving that SSS Auto Parts knew or ought reasonably to have known that the replica parts were purchased as enhancements to customize Commodores to look more like HSVs. As part of the dispute, SSS Auto Parts also filed a cross-claim alleging unjustified threats of infringement. 

Both parties accepted that the qualifying requirements of the repair defence had been satisfied. SSS Auto Parts accepts for the purposes of section 72(1)(a) that it has used products in relation to which a registered design and that each impugned part embodies a design that is identical, or substantially similar in overall impression, to GM Global Technology’s registered design. The parties also accepted that each of the impugned parts is a component part of a complex product within the meaning of section 72(1)(b). However, SSS Auto Parts claims that the use of each of the impugned parts is for the purpose of repair so as to restore its overall appearance of the product in accordance with section 72(1)(c). 

This raised a discussion as to the scope of the repair defence, and the meaning of ‘purpose’ in the context of section 72. GM Global Technology asserted that there needs be a predominant purpose of repair. It contended that the term ‘purpose’ in section 72 should be understood in the same sense of ‘intent’. In this regard, if the registered owner proved that the alleged infringer knew or ought reasonably to have known that the product might (rather than would) be used for a non-repair purpose, then the section 72 defence would fail. On this point, Burley J held that section 72 contemplates that a part may have a dual purpose: for a permitted repair purpose or a non-permitted purpose. Despite concessions by SSS Auto Parts in cross-examination that some parts might not be used for the purpose of repair, the judge stated that the immediate question was the purpose of the importer or seller, not of the person who acquires the part from them. 

Drawing on s117(2)(b) of the Patents Act 1990 (Cth), the judge specified that GM Global Technology ‘must establish on the balance of probabilities that SSS must have known or ought reasonably to have known that the use was not for the repair purpose’ (emphasis in original). SSS Auto Parts contended that its business model was always to supply spare parts for repairs. In this context, the company proceeded to implement ‘repair only policies’ and execute a sales directive, which reflected steps taken in order to ensure that sales were made in the correct manner. Burley J held that ‘it is difficult to imagine a more explicit indication of the purpose’. The judge also found that GM Global Technology had not discharged its burden of establishing that the importing, keeping for sale or offering for sale of replica parts by the defendant was not for the repair purpose. 

Fraud

“You’re not alone”: the use of peer support groups for fraud victims' by Cassandra Cross in (2019) Journal of Human Behavior in the Social Environment comments

The impact of fraud on an individual victim can have devastating consequences. Not only do victims experience a financial loss, but in many cases the impacts extend to their physical health and emotional wellbeing as well potentially enduring relationship breakdown, unemployment, homelessness and in extreme cases, suicide or suicide ideation. Despite the prevalence of fraud victimisation globally, and its severe consequences, there are limited support services available to victims to assist with their recovery. 

This article explores a case study of an Australian jurisdiction and the establishment of a face-to-face peer support group targeted exclusively at fraud victims. Based on interviews with fraud victims prior to the commencement of the support group and then one year after the establishment of the support group, this article highlights both the benefits and challenges of this peer support model. Though exploratory in nature, the article concludes with the need to provide greater levels of support to fraud victims and considers the role of face-to-face peer support groups as a means to achieve this. 

Cross argues

 Crime is well established as an event which can have long lasting consequences on an individual victim. As noted by Green, Choi, and Kane (2010, p. 732) “crime is a traumatic event that is often followed by continuous adjustment to a number of financial, social, physical, and psychological losses”. This is particularly the case for fraud victims. While compared to other crime types, there is a relatively small body of research examining the impact on these victims, the literature is consistent in documenting the extent of the consequences suffered. These go beyond the expected financial losses and extend all aspects of one’s life (Button, Lewis, and Tapley, 2009; Cross, Richards, and Smith, 2016a, 2016b; Cross, Smith, and Richards, 2014). 

The availability of support services for victims of fraud is limited across the globe (Cross et al., 2014). Even when they do exist (for example Victim Support in the United Kingdom), many victims do not access or engage with these services (Lowe et al., 2016, p. 22). This article provides an exploratory examination of the use of peer support groups (PSGs) to assist victims of fraud in their recovery. It draws from interviews with participants of a support group that was established in Western Australia in late 2014. Using victim narratives, this article explores the benefits and challenges of a face-to-face model of peer support to assist in recovery. To achieve this, the article will first provide a background to fraud (with a focus on romance fraud) as well as the establishment of peer support and its use to assist individuals with a range of circumstances. Second, it will provide details of the method employed in this study, as well as its limitations. Third, the article will present the key themes that were evident in the interviews and demonstrate how they reinforce the use of peer support in other contexts. Lastly, the article will conclude with some thoughts on the role of peer support into the future. Overall, this article highlights that face-to-face PSGs have potential to be both a positive and important mechanism to facilitate support for fraud victims in their recovery, notwithstanding a number of specific challenges

Contemporary Music, Copyright and Competition

The report by the House of Representatives Standing Committee on Communications and the Arts on its inquiry into the Australian music industry addresses terms of reference that asked the committee to inquire into and report on ‘factors contributing to the growth and sustainability of the Australian music industry’.

The Committee has made the following recommendations

Recorded Music Recommendation 1 The committee recommends that the Australian Government amend s. 152(8) of the Copyright Act 1968 to remove the one per cent cap on license fees for sound recordings. 

Recommendation 2 The committee recommends that the Australian Competition and Consumer Commission incorporate an assessment of the finalised OneMusic Australia licensing scheme when considering the re-authorisation of the Australian Performing Rights Association. 

Live music 

Recommendation 3 The committee recommends that the Australian Government invest in the Australia Council for the Arts’ domestic touring grant programs and work with state, territory, and local governments as well as industry to develop a contemporary music regional touring circuit. 

Recommendation 4 The committee recommends that the Australian Government invest in the Live Music Office. 

Incentives to use Australian music 

Recommendation 5 The committee recommends that the Australian Communications and Media Authority (ACMA) consult and work with industry stakeholders to amend and simplify the Commercial Radio Industry Code of Conduct to:  require all commercial broadcasters to meet an Australian content quota of no less than 25 per cent of all music played during the Australian Performance Period;  require all commercial broadcasters that play new music (published within the last 12 months) to meet a new Australian performances quota of no less than 25 per cent of Australian content played;  include a provision that broadcasters may be granted authorisation by ACMA on a case by case basis to broadcast a lower proportion of Australian music (or new Australian music), provided the broadcaster can demonstrate that sufficient Australian music is not available; and  report its progress to the committee by April 2020. 

Recommendation 6 The committee recommends that the Australian Communications and Media Authority consult and work with industry stakeholders to amend the Commercial Radio Industry Code of Conduct to change the Australian Performance Period to the time between 6.00am and 6.00pm. 

Recommendation 7 The committee recommends that the Australian Communications and Media Authority consult and work with industry stakeholders to amend the Commercial Radio Industry Code of Conduct to re-establish and strengthen the Australian Music Performance Committee’s oversight of the industry. 

Recommendation 8 The committee recommends that the Australian Government invest in Sounds Australia to enable it to expand its music exports program. 

Recommendation 9 The committee recommends that the Australian Government implement policy to prioritise and promote the use of Australian music and the hiring of Australian artists for government activities, events, and promotions, both in Australia and at Australian-hosted functions and events overseas. 

Recommendation 10 The committee recommends that the Department of Foreign Affairs and Trade work with the United States of America to develop mutually beneficial visa arrangements that allow artists from both countries to more easily showcase and tour. 

Talent pipeline 

Recommendation 11 The committee recommends that the Australian Government ensure that music education in primary and secondary schools is a key agenda item for the next meeting of the Council of Australian Governments. 

Recommendation 12 The committee recommends that the Australian Government invest in initiatives aimed at training and supporting artists and industry professionals to grow and develop their businesses, such as the:  Australian Music Industry Network’s RELEASE and CONTROL initiatives; and  Australia Council for the Arts’ International Music Makers and Music Managers fund. 

Recommendation 13 The committee recommends that the Australian Government invest in and seek to expand the PPCA-Australia Council Partnership and ensure that talented Australian artists have the capacity to create new recordings. 

Recommendation 14 The committee recommends that the Australia Council for the Arts introduce a ‘quick response’ grant to ensure that Australian artists are able to take advantage of time-sensitive opportunities as they arise. 

Recommendation 15 The committee recommends that the Australian Government invest in and expand the Australia Council for the Arts peer assessed grants program. 

Recommendation 16 The committee recommends that the Australian Government invest in Support Act to enable it to expand its services and deliver crisis support for artists and others working in the Australian music industry.

Redress Scheme

Changing the tax and charities regime to foster engagement by nongovernment institutions with remedies for harms?

The Australian Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse report Getting the National Redress Scheme right: An overdue step towards justice comments

The National Redress Scheme was a primary outcome of the comprehensive, five-year-long Royal Commission into Institutional Responses to Child Sexual Abuse. The establishment of the scheme tells survivors of institutional child sexual abuse that, as a nation, we believe their stories of abuse, that we failed to protect them, and that we will now do everything in our power to try to provide some degree of justice to survivors. The Prime Minister, the Hon Scott Morrison MP, has delivered a National Apology to survivors, but the redress scheme is our opportunity for our words to be translated into measurable outcomes. The National Redress Scheme is too important to not get right. 

The report has found that, as it currently operates, the redress scheme is at serious risk of not delivering on its objective of providing justice to survivors. The National Redress Scheme commenced on 1 July 2018 and therefore has been operating for nine months. During this period it has received more than 3000 applications, a mere five per cent of the estimated 60 000 likely eligible participants. As at 28 February 2019, 88 redress payments had been made with a further 22 offers made that were being considered by the applicant.

There is still much about the practical application of certain provisions of the redress scheme that is unclear. This is due, at least in part, to the short period in which the scheme has been operating, combined with the small number of redress payments made. As the scheme matures, and as more survivors seek to access the three redress components, it is likely that some issues only briefly flagged in this report will emerge into sharp focus, while other issues not even considered here will come to light. As these new problems emerge, it is critical that there is ongoing oversight of the redress scheme to allow problems to be properly considered and appropriately addressed. The committee has found that the statutory reviews will not provide adequate oversight and that a committee, similar to this committee, should be established throughout the life of the redress scheme.

However, the committee's oversight of the scheme during its early stages of operation provides an opportunity to make changes to key legislative and policy concerns. The committee is conscious of the significant barriers to implementing any substantive legislative and policy amendments. In addition, the committee is mindful of the need for the scheme to provide certainty for survivors. These barriers and concerns have been balanced with the need to get the scheme right. Significant changes to the scheme cannot wait—they must be made now.

The report makes 29 wide-ranging recommendations. In implementing these recommendations it is essential that the following core principles are adhered to:

• The redress scheme and any amendments to the scheme must continue to be survivor-focused and trauma-informed. 

• Amendments to the scheme must proceed on the principle of 'do no further harm' to the survivor. 

• Amendments must be subject to proper consultation with key survivor groups and feedback from consultations should be appropriately incorporated.

Intrinsic to a survivor's access to redress are the institutions responsible for the sexual abuse and their decision to join the scheme. While all states and territories are now participating in the scheme, there are no mechanisms to force private institutions to join the scheme. Yet survivors will not be able to obtain redress if the institution responsible for their abuse refuses to join the scheme. This is both unfair and unacceptable. Plainly, more needs to be done to pressure non-participating institutions to join the scheme, and provide survivors with access to redress.

From 27 February 2019, the redress website published the names of institutions that were named in the Royal Commission but have not joined the scheme. Publicly naming these institutions is a start. But it is not, by itself, sufficient. Institutions that refuse to recognise their role in the abuses that occurred and to accept responsibility for their actions should be subject to clear penalties, which could include the suspension of tax concessions and the withdrawal of their charitable status.

While the participation of relevant institutions is crucial, in cases where the institution no longer exists, access to the scheme, and ultimately a step towards justice, can only be achieved if all jurisdictions fill this gap. The committee has found that the funder of last resort provisions are too narrow and that Commonwealth, state and territory governments need to fill the gap where the institution responsible for the abuse is a defunct institution and the defunct institution would not have fallen under the operation of another existing institution.

Central to the redress scheme are the survivors. Wherever possible, the scheme should be an inclusive scheme that does not exclude groups of survivors. Currently, certain groups of survivors are either not eligible for redress or are subject to potentially arbitrary decisions when seeking permission to apply for redress. The government has suggested that some of these exclusions are necessary to protect the scheme from particular risks, such as fraud, while others are necessary to ensure the efficient administration of the scheme. These are not sufficient justifications to unilaterally exclude large groups of survivors, who would otherwise have a legitimate claim, from accessing redress.

Instead, it is up to the redress scheme to find a mechanism, whether through the development of clear guidelines, practices or strategies, to mitigate these risks and overcome any administrative challenges. The committee makes recommendations in relation to the following groups of survivors to allow them to fairly access the scheme:

• Survivors who are not Australian citizens or permanent residents. 

• Survivors who are currently in gaol. 

• Survivors with serious criminal convictions.

Fundamental to the success of the redress scheme and the assessment as to whether the objects of the scheme are being achieved is whether the key components of redress align with the recommendations of the Royal Commission. The report has found that the redress scheme falls short of many of the key recommendations of the Royal Commission, including in the following areas:

• In relation to the monetary component: 

• an assessment framework that does not reasonably recognise the impact of abuse for each individual; • a maximum redress payment of $150 000—which is $50 000 short of the maximum payment recommended by the Royal Commission; and 

• a failure to set a minimum payment of $10 000. 

• In relation to the counselling and psychological care component: 

• an assessment framework that unreasonably provides that institutions pay an insufficient amount for the counselling and psychological care of survivors, and which inappropriately places a monetary amount on the care provided based on the kind of abuse suffered rather than the survivor's need for counselling and psychological care; 

• concerns relating to the counselling and psychological care not being available for the life of the survivor, nor on an episodic basis; and 

• concerns relating to the quality and flexibility of care. 

• In relation to the direct personal response component: 

• concerns that the responsible institution will be leading the process for the provision of a direct personal response; and 

• concerns relating to the lack of oversight.

Remedying the disparities between the redress scheme and the recommendations of the Royal Commission will require substantive legislative change or changes to key policy. All amendments will require agreement from state and territory governments. These are significant barriers, but they should not be considered insurmountable, nor should they be the reason to not push for legislative amendments when required. The committee has concluded that without legislative change the scheme may never be properly accepted by survivors as a fair scheme and a real alternative to litigation. The report has also found that redress services—community-based support, financial support services and legal support services—must be adequately funded to ensure that they meet the needs of survivors when required, and regardless of the survivors' location or other barriers that might exist.

Survivors will have difficult decisions to make about the viability of applying for redress. The process of applying for redress will, for many, be a traumatic experience. It will require survivors to recount stories of the abuse they experienced and detail the impact of that abuse on their life. Equally, those who decide to receive a direct personal response from the responsible institution will also need adequate support. It is essential that survivors are supported throughout the entire process. This report highlights the need for the redress scheme to be transparent and accountable. More information needs to be made publicly available. Governments and departments have a responsibility to ensure that processes are visible and understood by survivors. The committee makes recommendations aimed at ensuring a more transparent scheme. 

Additionally, it appears that unnecessary restrictions have been placed on the review of determinations made about an application. When these restrictions are considered in combination, they result in unreasonable outcomes for survivors in what should be a beneficial scheme. The committee makes recommendations to address these unfair outcomes. 

The committee recognises that no scheme can remove the trauma felt by victims or adequately acknowledge or correct the wrongs inflicted on survivors. The committee's recommendations are aimed at ensuring that, as far as it is able to, the National Redress Scheme delivers on its objective of recognising and alleviating the impact of past institutional child sexual abuse, and providing justice for survivors. The committee looks forward to Commonwealth, state and territory governments meeting this call.

 The Committee makes the following recommendations

Recommendation 1  The committee recommends that any amendment to the scheme proceed on the principle of 'do no further harm' to the survivor, be subject to proper consultation with key survivor groups, and appropriately incorporate feedback from those consultations. 

Recommendation 2  The committee recommends that Commonwealth, state, and territory governments place and maintain pressure on all relevant institutions to join the redress scheme as soon as practicable. 

Recommendation 3   Noting that such a mechanism should only be applied in the context of the National Redress Scheme, the committee recommends that the government consider mechanisms and their efficacy, including those available under the Charities Act 2013, to penalise all relevant institutions that fail to join the scheme, including the suspension of all tax concessions for, and for the suspension of charitable status of, any institution that:

• could reasonably be expected to participate in the scheme, including because the institution was named in the Royal Commission into Institutional Responses to Child Sexual Abuse, or an application for redress names the institution; 

• has had reasonable opportunity to join the redress scheme; and 

• has not been declared as a participating institution in the National Redress Scheme for Institutional Child Sexual Abuse Declaration 2018. 

Recommendation 4  The committee recommends that Commonwealth, state and territory governments expand the circumstances in which the funder of last resort provision applies so that the relevant participating jurisdiction acts as the funder of last resort where:

• the institution responsible for the abuse is now a defunct institution; and 

• the defunct institution would not have fallen under the operations of an existing institution. 

Recommendation 5  The committee recommends that, in regards to the National Redress Scheme, that Commonwealth, state and territory governments revisit the practice of indexing prior payments.  

Recommendation 6  The committee recommends that the Parliament consider referring an inquiry to a parliamentary committee into the adequacy of state and territory responses for survivors of institutional child non-sexual abuse, including consideration of the redress models that could be available to these survivors. 

Recommendation 7  The committee recommends that Commonwealth, state and territory governments give consideration to allowing all non-citizens and non-permanent residents access to redress provided that they meet all other eligibility criteria. Particular regard should be given to allowing the following groups to be eligible for redress:

• former child migrants who are non-citizens and non-permanent residents; 

• non-citizens and non-permanent residents currently living in Australia; and 

• former Australian citizens and permanent residents. 

Recommendation 8  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would allow all survivors who are currently in gaol or who have been sentenced to imprisonment for five years or longer to apply for and receive redress, unless:

• the Operator decides in relation to a particular survivor that providing redress to the survivor would bring the National Redress Scheme into disrepute or adversely affect public confidence in the scheme; and 

• the decision of the Operator is based on publicly available guidelines that set a high threshold for bringing the scheme into disrepute or adversely affecting public confidence in the scheme. 

Recommendation 9  The committee recommends that Commonwealth, state and territory governments work together to develop and implement a new Assessment Framework which more closely reflects the assessment matrix recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and which acknowledges that the type or severity of abuse does not determine the impact of sexual abuse for the individual. 

Recommendation 10  If a new Assessment Framework is implemented to replace the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, the committee makes the following recommendations: 

• That applicants who were assessed using the current framework are re-assessed using the new framework. 

• When re-determining the redress payment under the new framework, offers of redress must not be lower than the original offer. 

Recommendation 11  The committee recommends that the government clearly communicates to the public, to the maximum extent allowed under current provisions, how applications for redress are considered and the grounds on which determinations are made. 

Recommendation 12  If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that any acknowledgment of 'extreme circumstances' in the Assessment Framework be applicable to all applicants, not only those who experienced penetrative abuse. 

Recommendation 13  If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that the government publicly clarify key terms in the Assessment Framework. 

Recommendation 14  The committee recommends that the government clearly and openly explain how the maximum payments came to be set at $150 000 rather than $200 000, and the rationale for this decision. 

Recommendation 15  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to increase the maximum redress payment from $150 000 to $200 000. 

Recommendation 16  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments implement a minimum payment of $10 000 for the monetary component of redress, noting that in practice some offers may be lower than $10 000 after relevant prior payments to the survivor by the responsible institution are considered, or after calculating a non-participating institution's share of the costs.  

Recommendation 17  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would ensure that each survivor receives an adequate amount of counselling and psychological services over the course of their life, noting that the amounts currently provided for, pursuant to section 6 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, are wholly inadequate. 

Recommendation 18  The committee recommends that the Commonwealth government clarify, in the case of declared providers of counselling and psychological care, what services are provided to eligible survivors of the redress scheme that are distinct from or in addition to services already available to Australian citizens. 

Recommendation 19  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments consider mechanisms to ensure that survivors have life-long access to counselling and psychological care that is available on an episodic basis, is flexible and is trauma-informed. 

Recommendation 20 The committee recommends that Commonwealth, state and territory governments agree to amend an institution's reporting obligations under section 17 of the National Redress Scheme for Institutional Child Sexual Abuse Direct Personal Response Framework 2018 to require institutions to provide to the Operator the following information:

• the number of complaints made to the institution in relation to direct personal responses; 

• the nature of these complaints; and 

• how these complaints were resolved. 

Recommendation 21 The committee recommends that the government ensure that redress support services are appropriately funded so that they are available to all survivors, regardless of the survivor's location, cultural or other barriers. 

Recommendation 22  Noting that the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse committed to providing survivors with access to financial support services, the committee recommends that Commonwealth, state and territory governments explore mechanisms to ensure that survivors have access to free and appropriate financial counselling services, when required.

Recommendation 23  The committee recommends that the government ensures a clear process to allow survivors to indicate on the redress application form whether their application should be considered a priority. 

Recommendation 24   The committee recommends that the government ensures that people are regularly informed of the progress of their application. 

Recommendation 25  The committee recommends that the government publish, on the National Redress Scheme website, the average processing time for applications and other key data concerning the redress scheme, and that this data be regularly updated to ensure they are reasonably current. The average processing time should be from either:  the date the application was lodged to the date an offer was made; or  the date all relevant information was received for an application to the date an offer was made. 

Recommendation 26  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to allow applicants to provide additional information in support of their review application, up to the point of the redress payment being made.  

Recommendation 27  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to ensure that a review does not result in an applicant receiving a lower redress amount than their original offer. 

Recommendation 28  The committee recommends that the government closely monitor the timeliness of internal review determinations. 

Recommendation 29 The committee recommends that the new Parliament consider the establishment of a parliamentary committee, similar to this committee, to oversee the National Redress Scheme throughout the life of the scheme.

Coroners

'Turnaround time data for Coronial autopsies – time to complete forensic post-mortem examination reports and influencing factors for Australia and New Zealand in 2015 and 2010' by Neil E I.Langlois, Claire J Sully and Suzanne Edwards in (2019) 15(1) Forensic Science, Medicine and Pathology 56–66 comments

This study aimed to provide information regarding key performance indicators (KPIs) for forensic pathology in Australia and New Zealand, focusing on the time to complete a Coronial post-mortem examination report. Data was obtained from the National Coronial Information System (NCIS). The mean and median time to complete a post-mortem examination report in 2015 was determined from a sample of 100 cases from each of the nine Coronial jurisdictions. Results of univariate and multivariable analysis of factors potentially influencing the completion time are presented. The multivariable analysis indicated the time to complete a post-mortem examination report was significantly dependent on if any internal examination had been performed, the Coronial jurisdiction and requesting toxicological analysis. The number of days for Coroners to close cases is also presented as well as the number of days for a post-mortem examination to be performed. A comparison between 2015 and 2010 was instigated. However, this data had to be constrained to eight of the Coronial jurisdictions. Within this dataset, the time to complete a post-mortem examination report when an internal examination had been performed was statistically significant greater in 2015. However, the time to complete reports for all Coronial post-mortem examinations in 2015 was not statistically significantly different to 2010. This could be attributed to a higher proportion of post-mortem examinations without internal examination (‘external only’) in 2015. The time to perform a post-mortem examination following the death being reported to a Coroner increased, but the time for Coroners to close a case decreased.

In Paterson v Coroner King [2019] WASC 25 the Western Australia Supreme Court has considered Indigenous concerns regarding autopsies, a matter discussed in  'Autopsies, scans and cultural exceptionalism' by Bruce Baer Arnold and Wendy Bonython in (2016) 41(1) Alternative Law Journal 27.

The Court responded to an application made by senior next of kin for an order that no post mortem examination be performed on a deceased child, noting the relevance of spiritual and cultural beliefs in relation to the Coroners Act 1996 (WA) s 37 before ordering

 No post mortem examination is to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of any permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased 

The Court states

The deceased died on 10 January 2019 at Perth Children's Hospital. She was 14 years old. The applicant is the deceased's mother, and for the purpose of the Coroners Act s 37, the applicant is the senior next of kin. The application is supported by the deceased's father, Mr Geoffrey Dean Pryor. On 10 January 2019, the Coroner 's Court was advised by the Western Australian Police Force of the death of the deceased, and that the deceased's father objected to a post mortem examination being performed on the deceased. On 11 January 2019, the respondent wrote to the applicant and to Mr Pryor, informing them that he had decided that a post mortem examination was necessary. 

The respondent proffered the following reason for his decision: On the basis of information available to me at this time, it does seem likely that [the deceased] died from ligature compression of the neck, though a forensic pathologist has not yet examined her body. Despite that likelihood, even if a coroner can determine what caused [the deceased's] death the coroner will also have to determine the circumstances surrounding her death. The information currently available indicates, among other things, that [the deceased] may have ended her life due to psychological stress associated with circumstances that might be identified through a full post mortem examination. I have therefore decided that a post mortem examination is necessary. 

This correspondence constituted notice in writing to the senior next of kin for the purposes of the Coroners Act s 37(1). The Coroners Act s 37(2) provides that unless the Coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision, or until after the end of any extension of time granted by the Supreme Court under s 37(3a). The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. 

On 15 January 2019, the applicant made an urgent ex parte application pursuant to s 37(3a). I heard the application and granted the applicant an extension of time in which to apply to this court for an order that no postmortem examination be conducted, having been satisfied that exceptional circumstances existed so that it was necessary in the interests of justice to grant the extension. The substantive application was promptly made on behalf of the applicant and listed for hearing on an urgent basis. ... 

The applicant opposes the performance of a post mortem examination on the deceased on spiritual and cultural grounds. The applicant is an Aboriginal woman who was raised in South Australia, and who has lived in Western Australia and Victoria. She was brought up by her father's parents, who were a part of the Aboriginal community in the Riverland area of South Australia, and was encouraged to learn about her Aboriginal culture. The applicant's evidence is that it is her absolute belief that if an autopsy is carried out, the deceased's soul will be forever tormented and will never have peace; but if her body is buried whole, her spirit will be at peace. The applicant also deposes to her belief as to the distress that will be caused to her family by the performance of a post mortem examination. 

Mr Pryor is a Noongar man, whose ancestors were from the Perth area. He deposes to his belief in an Aboriginal afterlife, and that it is his belief that the deceased should not be cut. The applicant also relied (without objection) on the evidence of Ms Hayden, cultural advisor and social worker. Ms Hayden is recognised by the Noongar community of the South West of Western Australia as an Elder. Ms Hayden deposes to having shared her cultural knowledge and expertise in various capacities with the Western Australian community, Aboriginal community, the Government of Western Australia, and non-government organisations. Ms Hayden does not know the applicant, Mr Pryor, nor the deceased personally. Ms Hayden deposes that it is her understanding of Noongar culture and spirituality that the body of the deceased should not be disturbed as it will prevent peaceful passage to the Dreamtime; the consequence of disturbance will be that the spirits of the deceased and her surviving family will be unsettled; and that these cultural and spiritual beliefs are shared by other Aboriginal groups in Western Australia. 

Ms Hayden further deposes that: By undertaking a post mortem examination, the deceased's body will be disturbed. The scars created by the post mortem examination will unsettle the spirit of the deceased and will prevent her peaceful passage into the Dreamtime.

The Coroner

did not take issue with the admission of the evidence of the spiritual and cultural beliefs of the deceased's family, nor with the admission of the evidence of Ms Hayden. The respondent accepted that the applicant's cultural beliefs, and the effect on the applicant and her family of the performance of a post mortem examination on the deceased, are relevant considerations in the determination of an application made pursuant to s 37(3). 

The respondent maintained however, that while great care should be taken to ensure that spiritual and cultural beliefs are not disregarded or abused, they are not determinative and must be balanced against the public interest. As at the time of the hearing of the application, no post mortem examination of any kind had been performed on the deceased. 

It was clear from the evidence of Ms White that a post mortem examination may include a range of procedures. Less invasive procedures include xraying the body and obtaining samples for toxicology testing without making incisions in the body, such as obtaining blood, fluid from the back of the eye, and (where the bladder appears to be full) obtaining a urine sample. Invasive procedures (that might be conducted in a 'full' post mortem examination) include the removal of tissue and internal examination. 

It was the respondent's position that a 'full' post mortem examination was necessary in the circumstances of this case in light of the following. 

First, the coroner must find, if possible, the cause of death. The respondent says that while it seems likely that the deceased's death was caused by ligature compression of the neck, the cause of death cannot be determined without a post mortem examination. In this regard, Ms White deposes that from the information that she had been provided by the coroner in relation to the deceased, it is possible that she may be able to determine the cause of death without a full post mortem examination. However, if a 'full' post mortem examination was to be performed, she would be able to exclude certain possibilities as to the cause of death of the deceased that she could not otherwise exclude. 

Secondly, in the absence of a decision (which had not been made) that there was no public interest in making a finding, the coroner must find if possible how the death occurred. The respondent observed that limited information had been obtained about how the death of the deceased occurred (that is, the surrounding circumstances), but the information that was available required further investigation which may be assisted by a 'full' post mortem examination.

The Court notes that under the statute

The term 'post mortem examination' is given a broad definition, being an examination of the body of a person who has died, for the purpose of investigating the death. It is an examination conducted by a pathologist or a doctor.A post mortem examination does not necessarily involve cutting, or the removal of tissue. A coroner may however, direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.This power is subject to the limits prescribed in s 34. 

Post mortem examinations

(1) If a coroner reasonably believes that it is necessary for an investigation of a death, the coroner may direct a pathologist or a doctor to perform a post mortem examination on the body. 

(2) The coroner may direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death. 

(3) The pathologist or doctor performing the post mortem examination may cause tissue to be removed from the body - (a) in accordance with a direction under subsection (2); or (b) in accordance with the written permission of the deceased; or (c) subject to subsection (5)(b), in accordance with the written informed consent, in the prescribed form, of the senior next of kin of the deceased specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed. 

(4) The coroner may direct the pathologist or doctor performing the post mortem examination not to cause tissue to be removed as authorised under subsection (3)(c) if the coroner is satisfied that the removal would be contrary to or inconsistent with wishes expressed in writing by the deceased. 

(5) Where a post mortem examination is performed under this Act a person who causes tissue to be removed from the body - (a) otherwise than as authorised under subsection (3); or (b) contrary to a direction of a coroner under subsection (4), commits an offence. Penalty: $10 000. 

(6) Tissue removed under subsection (2) is to be dealt with in accordance with the coroner ’s directions and any relevant guidelines. 

(7) Where tissue is to be removed as authorised under subsection (3)(b), the coroner is to ensure that before the tissue is removed, the senior next of kin of the deceased is informed in writing what tissue is to be removed and the purpose for which it is to be removed and is given a chance to view the written permission of the deceased.

Importantly the Coroners Act s 37(2)

provides that unless the coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision or until after the end of any extension of time granted by the court under s 37(3a). 

The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. The court may make an order that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances. ... 

This court is not being empowered to sit on appeal from the coroner 's decision, but to exercise the jurisdiction afresh, to balance compelling and competing views, and to look into what is desirable in all of the circumstances. This approach was adopted by Anderson J in Ronan v The State Coroner where at [7], his Honour found as follows: It is always of course a balancing exercise; the interests on one side have to be weighed against the interests on the other, essentially. Because there is in this case absolutely no indication that there are suspicious circumstances, I have come to the conclusion that the spiritual and cultural beliefs to which I have referred outweigh the public interest in knowing the precise cause of this death. For these reasons, I am prepared to make the order which I have indicated that I will make. For the sake of formality, I will put a proviso into the order: save for the taking of blood and urine samples. At the hearing of the application, counsel for the applicant confirmed that the applicant did not object to an external examination of the body being performed. The applicant's concern, and the concern of her family, arose from the amount of time that had elapsed, but more so from the act of autopsy, and the cutting and scarring of the body of the deceased. The concern did not arise from the possibility of any examination being performed at all.

Accordingly, in Paterson the Court states

In exercising the jurisdiction afresh and in giving consideration to what is desirable in all of the circumstances, I determined that it was appropriate to order that no post mortem examination was to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of a permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased. 

In coming to this decision, I weighed the following matters in the balance. The spiritual and cultural beliefs of the deceased person's family It is clear on the authorities that it is appropriate and proper to have regard to the spiritual, cultural and religious beliefs of a deceased person's family in determining whether a post mortem examination ought to take place. On the affidavit evidence that was before me, I accepted that it was the strong wish of the deceased's parents that no post mortem examination take place; that the applicant was especially concerned that if the deceased's body was subject to a post mortem examination, her daughter's spirit would not be able to find peace; that this is a concern was genuine and was shared by her immediate family; and that it is a genuinely and strongly held belief which is found in Aboriginal cultural broadly, and is reflected in local Aboriginal cultural groups including the Noongar People. ... 

The respondent said, to which I agreed, that the applicant's cultural and spiritual beliefs, and the effect on the applicant and her family of the performance of a post mortem on the deceased must be balanced against the public interest. I also agreed with the respondent that where a post mortem examination would be of more than marginal assistance in the proper exercise of coronial functions, functions which the coroner is legally obliged to perform, the public interest in undertaking an examination will often outweigh the great distress that performing that examination will have on the family of the deceased person. 

On behalf of the respondent, the following circumstances were cited by way of example: where there are suspicious circumstances surrounding the death; where a pathologist is unable to conclude a cause of death absent a post mortem examination; and where a post mortem examination may reveal something meaningful about the circumstances of death. 

Counsel for the applicant cited a number of cases where the court ordered that no post mortem examination be conducted despite the fact that in each instance, the public interest factors that had led the coroners in question to direct the performance of post mortem examinations were compelling. 

Whilst examination of the authorities was undoubtedly relevant, and I had regard to them, it was necessary to adjudicate upon the particular facts that applied in this case.... 

In coming to my decision, I weighed in the balance that a coroner must find, if possible, the cause of death. This is not a case where death was a result of natural causes. In this case, while it seemed likely that the deceased's death was caused by a ligature pressure to the neck, I accepted that the cause was unlikely to be able to be conclusively determined without a post mortem examination. I weighed in the balance the fact that the information available to the police as at the date of hearing was limited. At that time, the police did not have the benefit of a complete statement from the deceased's father. However, from the notice issued by the coroner, it could be reasonably construed that as at 11 January 2019, the coroner did not harbour any particular suspicion that the deceased's death was caused by anything other than suicide. It would appear that the coroner 's purpose in ordering a post mortem examination was to better understand the factors that might have contributed to her death, rather than to determine the actual cause of death. ... 

Taking into account and balancing all of the evidence and the interests before me, including the public interest, I found that it was desirable that the cultural and spiritual beliefs of the applicant prevailed and that there be no examination of the deceased which involves making a cut or incision into the body of the deceased, or the making of a permanent mark on the body of the deceased. may be performed on the body of the deceased.

Data Ownership and Management

'Data Ownership – A Property Rights Approach from a European Perspective' by Andreas Boerding, Nicolai Culik, Christian Doepke, Thomas Hoeren and Tim Juelicher in (2018) 11(2) Journal of Civil Law Studies comments

Data has become one of the most important resources in postmodern information society. However, European civil law does not reflect this development adequately. In fact, so far, European civil law seems to struggle with handling data as a legal entity. Against this background, the article provides a transnational overview and a comprehensive analysis of the legal situation in Europe. It discusses why data ownership is widely perceived as a problem on this side of the Atlantic and how this perception can be overcome by a fundamental property law approach. Taking into account economic realities, we argue that European property law provides a sufficient framework for establishing a theoretical concept of data ownership. Therefore, we draft the dimensions of a data ownership concept by proposing potential criteria for assigning ownership and analyzing both positive access and negative restriction rights.

'Data Ownership' ( CIGI Papers No. 187, Ottawa Faculty of Law Working Paper No. 2018-26) by Teresa Scassa comments

 The rapid expansion of the data economy raises serious questions about who “owns” data, and what data “ownership” entails. In most jurisdictions, data that are kept confidential can be protected as confidential information. However, such data are vulnerable to exposure through hacking or leaking by third parties. In many instances, significant stores of data cannot be kept confidential, and protection must be sought elsewhere. Copyright law has long treated facts as being in the public domain, but will provide protection for compilations of facts that meet the threshold for “originality.” Such protection is considered to be “thin,” as it does not extend to the underlying facts, applying only to their original selection or arrangement. In the European Union, database rights offer a more robust protection for compilations of data, but they also fall short when it comes to protecting the facts that make up such compilations. 

Debates over ownership rights in data have been heating up. In Europe, policy makers have raised the possibility of creating sui generis ownership rights in data. In Canada, a recent court decision has raised the interesting question of whether facts and data should be treated differently in copyright law, offering a far more robust protection for data than for facts. In addition to these developments, Europe’s new General Data Protection Regulation also appears to vest certain rights in data subjects through the newly introduced concept of data portability. 

If data are capable of ownership, either through a sui generis right or copyright law, this raises important questions about how to strike a balance between the rights of data “owners” and the public interest in access to and reuse of data. This paper will explore the legal bases for claims of ownership of data, the extent of the public interest in access to and use of data, and the areas in which public policy development is required to address the changing needs of the data economy and society. 

The national Government has announced a new whole-of-government Hosting Strategy, characterised as providing

a new framework that strengthens data sovereignty, supply chain and data centre ownership provisions to increase security, protect privacy and improve resilience of data infrastructure. This includes a requirement that data centre facilities that host high-value government data achieve certification as “sovereign” or “assured” data centres.  ... 

“This Strategy will ensure that we have a trusted, secure hosting ecosystem, including data centre and network infrastructure, and our services can rely on data being safe and secure throughout the supply chain.” As part of the Strategy, a new Digital Infrastructure Service will be established to manage data centre certification and ensure the ecosystem is supported by an effective and efficient network infrastructure.