Investigative State and CCTV

'The Judicial Response to Mass Police Surveillance' by Stephen Rushin in University of Illinois Journal of Law, Technology & Policy (2011) 101-148 argues that

increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.

Rushin notes Posner's comment that

Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive ... Should government someday decide to institute a program of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search. 

He concludes that time has come.

The digitally efficient investigative state comes dangerously close to “wholesale surveillance.” The unregulated use of these emerging technologies may incentivize police fishing expeditions, facilitate racial profiling, and corrode any notion of public anonymity. And the legislative branch has not acted to address the tangible harms posed by this new technological order. In wake of the legislative inactivity, I argue that it is finally time for the courts to break from the previous doctrinal trend and act decisively to regulate the efficiency of police surveillance technology. While a judicial response may help ameliorate some of the pressing concerns raised by the digitally efficient investigative state, it should only be the beginning of a broader re-conceptualization of our Fourth Amendment doctrine. I argue, in particular, that we ought to reassess our presumption that individuals have no reasonable expectation to privacy in their public actions. In total, I hope to make two contributions with this Article, one descriptive and one normative. Descriptively, I build a comprehensive account of the digitally efficient investigative state, and normatively I contend that the courts must establish a new doctrinal path to regulate this technological order.

I have divided this Article into four parts. In Part I, I examine the use of ALPR, surveillance cameras with facial recognition, and third-party databases as paradigmatic examples of intrusive, emerging technologies utilized by law enforcement in the digitally efficient investigative state. In Part II, I outline the current Fourth Amendment doctrine on unreasonable search and seizures. Part III considers the constitutionality of the digitally efficient investigative state under Fourth Amendment doctrine. Finally, Part IV argues for a new doctrinal approach to regulate the digitally efficient investigative state and a broader re-conceptualization of our understanding of the Fourth Amendment.

The WA Auditor General has meanwhile released a report [PDF] on Use of CCTV Equipment and Information, commenting that -

The popularity and use of Closed Circuit Television (CCTV) has grown rapidly since the technology was first introduced. However, research findings have been mixed on whether CCTV reduces crime and other unwanted behaviour. 

CCTV can enhance public perceptions of safety but in reality it is more likely to be of benefit if it is part of a broader crime reduction strategy; is actively monitored; and if police can respond quickly to a developing incident. At the same time, CCTV can be expensive to implement, manage and maintain. Poorly designed systems or systems installed for the wrong purposes may be ineffective and expensive to correct. 

Recorded CCTV images can help to identify or eliminate suspects and provide evidence for a criminal prosecution. Use of images and information collected from CCTV needs to be tightly controlled to protect privacy as citizens expect to be able to engage in lawful activities without being unduly monitored. Some Western Australian government agencies and local governments have installed CCTV in public areas to create safer environments for members of the public and staff, and as an anti-terrorism measure. 

Western Australian Police (Police) have sought to improve their information about, and access to, CCTV footage from systems owned by government and the private sector. Their Blue Iris register, captures information about individual CCTV installations so police can readily access footage after an incident. registration is voluntary except for cameras owned by state government agencies. 

The focus of this audit was to assess whether decisions to install or access CCTV or to fund local government installations were adequately based and whether the facilities are properly managed and anticipated benefits realised. Five entities in total including three local governments were included in the audit. Follow-the-dollar powers contained in the Auditor General Act 2006 provided the authority for auditing the local governments. 

We expected that:

• decisions to install CCTV were part of a planned and coordinated security strategy 

• CCTV facilities were managed and monitored to ensure CCTV information is used effectively 

• appropriate controls were in place to properly store CCTV information and to protect the privacy of people whose images are captured on CCTV 

• benefits from installing CCTV could be demonstrated 

• Police had formal agreements for access and use of CCTV information and had effectively implemented their Blue Iris register.

The report's authors conclude that

Installations and decisions to fund were based on the integration of CCTV into broader security strategies and most facilities we examined are well managed. The public can be reasonably assured that CCTV imagery is secured to protect the privacy of people going about normal lawful business. The Public Transport Authority (PTA) and the City of Bunbury could demonstrate clear benefits from use of CCTV. However there is a potential to realise greater benefits through better sharing and more strategic use of CCTV information by Police and local governments. The significant potential of the Blue Iris system is not being realised. Better management, administration and commitment are needed from Police if it is to deliver coordinated and effective use of CCTV information. 

Their key findings are -

• Although initial installations at the entities we examined were piecemeal and experimental, more recent expansions to their CCTV systems have been integrated into broader security strategies. This increases the likelihood that their CCTV will assist crime prevention. 
• All the entities had good controls in place to protect the privacy of individuals. We found no evidence of inappropriate use of CCTV. 
• Most facilities we examined were well managed. Elements of good practice included: 

• the implementation of CCTV was an outcome of the entity’s assessed security needs and involved integration with broader security strategies  

• training courses and manuals to ensure CCTV systems operate as intended and staff have the skills to perform the tasks 

• policies and procedures for staff on appropriate operation of CCTV equipment and privacy procedures 

• controls in place to restrict access and properly store CCTV information and to protect the privacy of people whose images are captured on CCTV

• regular reviews of the effectiveness of the CCTV equipment including its location and operation and of the capability of the operational staff supporting the equipment.

• PTA and City of Bunbury had Memorandum of Understanding (MoU’s) with Police and were using information gathered from CCTV surveillance to guide policing strategies. As a result they could demonstrate positive impacts from Police responses to CCTV intelligence including a 50% reduction in assaults on trains and a similar reduction in disorderly conduct in targeted areas of Bunbury.
• Cities of Perth and Stirling did not have MoU’s with Police and CCTV intelligence was not being used to guide or assess the impact of policing strategies.
• Police use of CCTV images could be improved by a functional, coordinated and integrated approach. The Blue Iris project was an attempt to fill this gap but its present form has proved unusable which means that there is still a risk that relevant images may not be available for investigations and court. The system is not functional because:

• the completeness, accuracy and utility of data are not reliable. For instance the Police are yet to register 7 000 cameras because they lack the GPS coordinates

• the data is not readily accessible to front-line Police; there has been no training in use of the register offered and investigating staff continue door-knocking for possible CCTV imagery

• it cannot be used for management reporting due to very limited reporting capabilities.

The Auditor General asks "What should be done?", commenting that WA state agencies and local governments -

• need to ensure decisions to install and maintain CCTV are carefully planned, costed and considered as part of a broader security strategy
• should use information gathered from CCTV to monitor effectiveness and enhance crime prevention strategies. This includes closer cooperation with Police through sharing information
• should have appropriate policies, procedures and practice for CCTV equipment and information to ensure the protection of individual privacy

The WA Police should -

• establish formal agreements with agencies and local governments that define appropriate access and use of CCTV equipment and information; and feedback of policing outcomes
• consider and clarify their ongoing commitment to the Blue Iris project.

Succession

Anne Twomey's 'Changing the Rules of Succession to the Throne' (Sydney Law School Research Paper No. 11/71) discusses the consequences for the 'Realms' (ie the fifteen former British colonies of which Ms Betty Windsor is Sovereign) of the UK Government's proposed changes to the rules of succession to the Crown to remove discrimination against women and Roman Catholics.

The paper

discusses the relevance of the Statute of Westminster and whether parliamentary assent of the Realms is required. It also analyses the impact of such a change on a number of Realms, including Australia, New Zealand and Canada. It considers whether the British changes would automatically affect who becomes Sovereign in these Realms, or whether each Realm would have to change its own laws. In those Realms that are federations, consideration is also given to the source of constitutional power to make such legislative changes.

Twomey asks -

In making changes to the law of succession to the throne, to what extent must the British Government consult with or seek the consent of other Commonwealth countries, especially the Commonwealth "Realms‟ of which Her Majesty is Head of State? Would a British legislative change to the rules of succession to the British throne have any impact upon who will be the Head of State in any other Commonwealth Realm? What difficulties might Commonwealth Realms face in changing their own laws and Constitutions regarding their Head of State?

She concludes that -

While changing the rules of succession to the British throne might seem to be a relatively simple legislative exercise of updating ancient laws to make them more consistent with current anti-discrimination laws, it presents greater difficulties in other Commonwealth Realms. It is doubtful whether the commitment in the Statute of Westminster to obtain the parliamentary approval of the Dominions continues to be applicable, but as a matter of comity, consultation will still be necessary as changes to the law in the United Kingdom may have constitutional ramifications for Commonwealth Realms.

Sir Zelman Cowan once observed that the personal union of Crowns in the Commonwealth is distinctive in that "there are separate countries with a common law of succession and this fact binds these countries in constitutional links by virtue of the shared monarchy‟. If it is regarded as important to the United Kingdom that the Crown, while divisible in its sources of advice and exercise of powers, remain indivisible in its monarch (i.e. that it be held by the one person), then special care will need to be taken to ensure that all Commonwealth Realms are willing and able to make the necessary changes to succession in relation to their own jurisdictions. In some cases, there may be manner and form constraints upon constitutional change. In federations, there is the added complication of obtaining the consent of all the constituent polities. Even in unitary countries such as New Zealand, issues may arise with respect to self- governing dependencies. Finally, there is uncertainty in some Realms as to whether United Kingdom changes would affect the identity of the Sovereign within that Realm, even though the United Kingdom can no longer legislate for the Realm, or whether local legislative change would be needed. As most Commonwealth Constitutions were not drafted with such issues in mind, many do not deal with succession to the Crown at all.

Ultimately, however, the law of succession to the Crown of the United Kingdom is a constitutional matter for the United Kingdom to determine. No Commonwealth Realm has a right of veto upon such a change and consultation, although appropriate, does not pose a constitutional barrier to reform.

Substances

The Australian Institute of Health & Welfare has released Drugs in Australia 2010: tobacco, alcohol and other drugs [PDF], a handy 175 page compendium of statistics on substance abuse.

The report -

presents information on the prevalence of tobacco, alcohol and other drug use in the community; and on treatment services, drug-related health issues, and drugs in crime and law enforcement. It includes a special focus on two areas Aboriginal and Torres Strait Islander peoples, and patterns of drug use at key life stages.

It suggests that "tobacco and alcohol are the drugs most commonly used by the Australian population" (caffeine in coffee and tea don't make the cut), with tobacco smoking being the leading cause of preventable illness and death in Australia, accounting for 8% of the total burden of disease in 2003. Total smoking-related costs to society — including those for healthcare and lost productivity, and intangible social costs — were estimated as $31.5bn in 2004–05.

Among key smoking stats the report indicates that -

In 2010, one in seven (15%) Australians aged 14 years or over were daily smokers, and one in four (24%) were ex-smokers. More than half the population (59%) had never smoked. Daily smoking rates have fallen by more than a third over the past two decades, from 24% in 1991. This is largely due to lower rates of smoking among adults aged 24–44 years.

Alcohol consumption was also popular -

Close to four in five (78%) Australians aged 12 years or over had consumed alcohol over the previous year in 2010, including 46% who drank at least weekly. There was a significant decline in daily drinking between 2007 and 2010 (from 8.1% to 7.2% of the population aged 12 years or over).

Most people drank at levels that did not put them at risk of harm. However, 28% of males and 11% of females drank alcohol at levels that put them at risk of alcohol-related harm over their lifetime. In addition, 23% of males and 9% of females consumed alcohol in quantities that put them at risk of alcohol-related injury from a single drinking occasion at least weekly. An estimated 13.1% of people aged 14 years or older had driven a motor vehicle under the influence of alcohol in 2010.

The consumption of alcohol was estimated to cost Australian society $15.3 billion, in 2004–05 (Collins & Lapsley 2008a). These costs included both tangible costs (such as for healthcare, road accidents and crime) and intangible costs, including for pain and suffering. The majority of social costs for alcohol (71%) were tangible costs. Businesses bore 50% of tangible costs and governments 26%, with individuals making up the balance.

In discussing illicit drugs the report suggests that 60% of Australians aged 14 years and over () had never used an illicit drug. Around 15% had used one or more illicit drugs in 2009-10, most commonly cannabis (10.3%) followed by ecstasy (3.0%) and amphetamines and cocaine (each used by 2.1% of people). The social cost of illicit drug use in Australia was estimated at $8.2 billion in 2004–05, including costs associated with crime, lost productivity and healthcare. Illicit drug use accounted for 2% of Australia’s total burden of disease in 2003, in particular that caused by hepatitis C. Around 8% of people in Australia aged 16–85 years have had a drug use disorder (including harmful use/abuse and/or dependence) in their lifetime.

There were over 85,000 arrests in 2009–10 for illicit drug offences; two-thirds involved cannabis. 81% were for use or possession rather than other drug-related offences such as manufacture or trafficking. One in ten sentenced prisoners in 2010 had an illicit drug offence recorded as their most serious offence — largely manufacturing or trafficking and almost two-thirds of adults detained by police tested positive to illicit drugs in 2010 (typically cannabis (46% of males and 43% of females), followed by amphetamines (17% of males and 22% of females) and opiates (15% of males and 24% of females)).

People entering prison (for any offence) had high rates of drug use compared with the general population. In 2010, three in four (74%) prison entrants smoked daily and two-thirds (66%) reported using illicit drugs in the past 12 months.

Unhappiness

A range of Commonwealth and state/territory agencies have recurrently drawn attention to poor practice in the consumer telecommunication sector and exhorted industry to do better, with ACMA for example commenting "The way in which the telecommunications industry in Australia deals with its customers must change, and change immediately".

On reading the latest annual report from the Telecommunications Industry Ombudsman [TIO], the private sector entity enshrined in Australia's co-regulatory regime, we might wonder whether that message is getting through.

The TIO reports that there were 197,682 new complaints, up 18% on the previous year. This reversed the 5% decrease in new complaints reported in 2009-10. New complaints about Vodafone mobile services almost tripled to over 32,000, peaking in January 2011 (more than 5,700). While Vodafone complaints took a downward turn in February 2011 (more than 4,200), their complaint levels in June 2011 (almost 2,800) were still more than double the number received in June 2010.

There was a 180% increase in the number of complaints (around 56,000) regarding mobile phone faults. The two most common complaints included poor coverage (28,634 issues - a 609% increase) and dropouts 6,941 issues (a 482% increase).

Complaints related to smart phones increased, with for example a 26% increase in disputes about internet charges. Other smart phone disputes included complaints about -

• the bill total (10,425 issues or a 52% increase),
• early termination fees (5,748 issues or a 9.6% increase)
• customer service and complaint handling issues, including inadequate time and quality of attention given to consumers (almost 51,000 consumers mentioned this as an issue in their complaint)
• service providers not acting on the promises they make – almost 42,300 consumers mentioned this as an issue in their complaint.

New complaints about high debt and bill shock continued to rise. Complaints about disconnections and suspensions without notice increased by 11% to 5,834. Complaints about collection agents increased 2% to 5,430. Default listing complaints also increased, including complaints about the listing of disputed debts (up 27% to 3,688) and listing without notice (up 13% to 3,217).

Complaints regarding internet services (wired such as home ADSL or wireless internet such as dongles) were reported as declining by 1% to 37,092. The TIO suggests that the decline may be partly attributable to "more affordable internet plans with generous data allowances, either as part of bundled packages or standalone deals, now being offered by the industry".

New complaints about mobile premium services (MPS) were down 45.6% to 2,174, reflecting stronger regulation and self-regulation of these services.

TIO investigated 20,635 cases, a decrease of 14.8%, which it claims highlights the effectiveness of the TIO’s referral and conciliation processes. "The level of overall satisfaction with our complaint handling was 93 per cent among consumers we surveyed in February 2011."

Mosley

Max Mosley, son of the unlovely cad and leader of the British Union of Fascists Sir Oswald Mosley, has had another win in litigation over the News Of The World (NOTW) 'spanking' report that has been noted in past items in this blog.

This time a News Corp subsidiary has been ordered by a French court to pay £32,000 in costs and damages - much of the money going to the state rather than to Mosley himself - after the scandal-sheet was found guilty of violating Mosley's privacy. The publisher and its reporter were found not guilty of defamation.

The front-page story in the NOTW in 2008 - titled 'F1 boss has sick Nazi orgy with 5 hookers' - alleged that Mosley "romped" with prostitutes pretending to be concentration camp victims. An accompanying two-hour video was published on the newspaper's website and attracted millions of hits, but was subsequently removed. Mosley took action in the UK and subsequently went to court in France on the basis that copies of the paper and the video were available in that country. He reportedly sought €100,000 in damages.

The Court has now ordered News Group Newspapers to pay a €10,000 (£8,585) fine plus €7,000 in damages, and €15,000 in legal costs. It commented that -

The publication of photographs revealing sexual practices between consenting adults in a private place, whether or not they have Nazi connotations, does not answer the requirement ... of being necessary information in a democratic society.

Mosley is likely to be out of pocket. He was awarded £60,000 in the first of his privacy actions in the UK High Court. Legal costs were apparently much higher.

Drunk

'Drink or drunk: Why do staff at licensed premises continue to serve patrons to intoxication despite current laws and interventions?', a new 46 page study [PDF] for the National Drug Law Enforcement Research Fund (NDLERF) by Costello, Robertson & Ashe comments that -

It is well documented that alcohol intoxication is a major contributing factor in incidents of aggression and violence. When factors such as health, policing costs and lost productivity are considered, it is estimated that alcohol costs the Australian economy around $15.3b per annum (Collins & Lapsley 2008).

Licensed premises are locations that are at especially high risk for alcohol intoxication and problem behaviours, as well as associated health and personal injury risks (Quigley & Leonard 2006). Over the past 20 years, Australia has made significant moves to address issues of alcohol-related harm and violence through server regulations such as the Responsible Service of Alcohol (RSA) training, through state and territory liquor control, liquor licensing and security legislation and through localised liquor management plans and accords.

In 2007, the Injury Control Council of Western Australia (ICCWA) conducted research into community violence among young people. The project findings indicated that perpetrators of violence regarded the practice of serving patrons to intoxication at licensed premises a major factor contributing to violence (ICCWA 2007). In 2009, ICCWA (with funding from the National Drug Law Enforcement Research Foundation) examined why staff at licensed premises continue to serve patrons to intoxication despite current laws and interventions. The Drink or Drunk project specifically aimed to gain an understanding of what motivates staff at licensed premises to continue to serve patrons to intoxication and what deters them from providing intoxicated patrons with further service.

A review of the available literature relating to service of alcohol to intoxicated patrons was carried out. In summary, much of the literature identifies a number of factors that are significant incentives for staff to continue service to intoxicated patrons. One of the most significant factors is the server’s perception of
confrontation with the patron (Reiling & Nusbaumer 2006; Turrisi, Nicholson & Jaccard 1999). Other factors such as a loss of gratuity for the server and reduced profits for the venue have also been reported to play a role in influencing serving practices (Lang et al. 1998; McKnight & Streff 1993; Reiling & Nusbaumer 2006).

In respect to civil liability, Reiling and Nusbaumer (2006) found that the risks associated with fine enforcement have little impact on compliance with serving laws if servers encountered intoxicated patrons frequently. Server interventions have emerged over the past 20 years to reduce alcohol-associated harms and injuries.
Research shows that the success of responsible alcohol service is highest when promoted in conjunction with a range of other interventions including support from management for refusing service to intoxicated patrons and support from enforcement agencies (Stockwell 2001). Management support of servers was one of the main factors measured among participants in the Drink or Drunk project. An audit of RSA training in each state and territory was also conducted as part of the project. A more detailed review of the literature is contained elsewhere in the report.

The project originally undertook to collect data from participants in focus groups in two metropolitan areas and one regional area of Western Australia. Initial participant numbers using the original methodology were however, very low. Few people, especially in the regional area were willing to participate in a focus group for privacy reasons. It was therefore necessary to revisit project strategies for recruiting participants and collecting data.

After gaining approval from the NDLERF board, the scope of the project was increased to statewide. Data collection methods were changed to one-on-one interviews and anonymous (mainly online) surveys. Advertising methods were also increased to capture discreet server groups such as students. The anonymous survey method greatly limited the scope for responses to be clarified or explored further; however, the need to make surveys anonymous was highlighted as a means of increasing participant numbers for the project. Over 400 surveys were collected from people who were currently working, or had worked in the past, as a server in a licensed premise. One-quarter of the collected surveys contained viable data which was analysed to informdiscussion about potential interventions to address the issue of serving intoxicated patrons. Data collected from regional areas of Western Australia and data from metropolitan areas were analysed separately. Data were collected for five key questions, however, it is believed that there are other factors that are also important to consider when drawing conclusions.

Overall, findings are reflective of previous studies; in particular, those related to server behaviour being influenced by perceived hassle or confrontation with patrons and the influence of management regarding decisions about whether to refuse service (McKnight 1991; McKnight & Streff 1993). The average participant/respondent in the study was a metropolitan-based 23 year old female who had worked in a metropolitan pub for almost two years and had undertaken RSA training.

Inability to recognise intoxication in patrons, premise management and lack of industry knowledge and experience were reported as barriers to serving alcohol responsibly. The most significant influencing factor in relation to serving patrons to intoxication or serving those who were already intoxicated was the servers’
reliance on their own judgement and values. By contrast with this, however, the perceptions of participants of their peers’ reasons for continuing service to intoxicated patrons were mainly based on a perception of patron backlash and confrontation if service was refused. It was also strongly believed that peers probably could not adequately identify intoxication and drunkenness and therefore continued to serve.

On review of the first collation of data, several points become apparent — the survey questions could have been more targeted and specific; there should have been more closed-ended questions, giving participants a number of choices and then asking them why they selected that choice. The authors acknowledge that the survey size is small and therefore difficult to draw significant conclusions from; however, the study has provided some good pilot data, raised some interesting questions and beckons further study.

The survey sample demographics show a relatively high number of young female participants by comparison with males. This is also reflective of other studies but could still influence the research findings.

Strategies and recommendations to address barriers to serving alcohol responsibly have been identified and include:

• review of the elements of RSA training — specifically around identifying intoxication/drunkenness,
acceptability of intoxication and how to effectively manage intoxicated patrons;
• tailored in-house training for individual venues such as Safer Bars (Graham et al. 2004) which incorporate harm reduction, violence prevention plans and address commonly held views of acceptability of drunkenness and intoxication; and
• progressive planning to recognise and accredit licensed premises that promote and practise alcohol-related harm reduction strategies.

Firebugs

My 'Burning with indignation: Arson, law and the 2009 Victorian bushfires' in 15(1) Local Government Law Journal (2009) 35 critiqued the outbreak of security theatre that followed close on the 2009 bushfires.

That outbreak saw politicians rushing to announce significantly stronger penalties for arsonists and media figures indulging in penal populism regarding 'bushfire arson', an offence that was apparently unique and egregious. I suggested that in the rush to judgment people appeared to ignore the reality that -

• some bushfires are 'acts of god' (eg started by lightning rather than by cunning pyromaniacs with beady red eyes and pointy evil ears),
• some may be attributable to poor maintenance of powerlines and other infrastructure (a comment that was later substantiated in official hearings),
• the deaths in 2009 although deeply regrettable might in part be attributable to the vicissitudes of evacuating people from difficult terrain at short notice, and
• some arsonists might lack the capacity we assume in an average Australian adult.

The deterrent value of a mandatory 25 year or life sentence is unclear when dealing with children who play with matches or adults who have fundamental psychological problems.

The last point is significant: it is undesirable as a matter of justice and public policy to impose extraordinary sanctions on people who have cognitive or other deficiencies, particularly if penal populism results in a higher punishment of someone whose action results in death through a bushfire than through a deliberately lit urban fire.

The ABC today reports that prosecutors have dropped all charges against two teenage boys (aged 15 and 16) accused of lighting a fatal bushfire at Bendigo in central Victoria on Black Saturday. That fire destroyed 58 homes, burned 341 hectares and resulted in the death of one man.

The boys were initially charged with arson causing death and intentionally causing a bushfire. In August this year, however, psychologists told the court that the boys are of abnormally low intelligence and incapable of understanding a trial or properly instructing their lawyers.

At that time they were deemed unfit to be tried but were still to face a special hearing to determine their guilt or innocence. The Victorian Supreme Court has today been told that the Director of Public Prosecutions will no longer pursue the case on the basis of insufficient evidence and a recognition that it was not in the public interest to proceed.

Defence loss

In the lead up to tomorrow's CyberSecurity conference, where I'm speaking on data breaches, it was timely to encounter reporting in The Age and Sydney Morning Herald regarding theft of "secret electronic documents" (a missing thumb drive in the backpack of a senior military aide travelling from the UK to Pakistan) and brouhaha about the loss of "secret" material within the Defence Department (likely to have been destroyed rather than snaffled by a James Bond).

The newspapers have used the Freedom of Information Act - rather than Wikileaks - in revealing that

a military aide to Australia's most senior commander in the Middle East had secret electronic documents stolen while travelling through Kuwait last year, in a major security breach.

An investigation found it was likely the documents - held on a thumb drive storage device and designated "Australian Eyes Only" - were either stolen by, or ended up in the possession of, a foreign intelligence service.

The loss of the material - which included secret Defence documents of the commander of Australian operations in the Middle East, Major-General John Cantwell - was described as a "major security incident" by a Defence investigation.

It is one of a series of embarrassing thefts and losses revealed in Defence Security Agency investigation reports between 2008 and last year. ... "The loss of the USB was a deliberate theft and not accidental", a report states.

In contravention of security policy, the aide had placed the thumb drive in a zippered pocket of his unlockable backpack, which he checked in when boarding a flight from Dubai on February 28 last year, ahead of meetings with Pakistani officials. The flight stopped over in Kuwait and it is there the device is thought to have gone missing, the report said.

When the aide, Major-General Cantwell and another officer arrived at Islamabad later that day, they were told the bags of a large number of people on their plane had been lost. It took several days for them to be located. When they were returned, they appeared untouched.

But the aide soon discovered the small thumb drive and a pair of sunglasses - both stored in the same small zippered pocket of his backpack - were missing. ...

It is not known exactly what was on the drive, with the report revealing only that it was the Lotus Notes files of Major-General Cantwell and the aide, downloaded from the Defence Secret Network.

Bad luck about the sunglasses!

We don't know what was on the USB drive. We don't know whether the drive was encrypted. We don't know whether the drive was snaffled by a spy or ultimately acquired by a foreign intelligence service.

We might however be unimpressed by senior defence personnel casually leaving USB drives in backpacks. Perhaps the aide hasn't heard of the breast pocket or even of carry-on luggage.

WA Offender Register

The Western Australia Police Minister has announced plans for establishment of an online publicly-accessible sex offender register in the state, to be given effect through enactment of the Community Protection (Offender Reporting) Amendment Bill (No 2) 2011 (WA).

The expectation is that people will be able to access information about sex offenders through a website that features three levels of disclosure about offenders -

Tier 1: Is intended to notify the public about at large reportable sex offenders who have gone underground. Information will be openly available to the public on the website and this information will contain details about these offenders, such as photograph, date of birth, physical description, name and known aliases. It
applies to Reportable offenders who are non-compliant with their reporting obligations and whose whereabouts are unknown to WA Police.

Tier 2: Is intended to make the public aware of repeat or highly dangerous sex offenders in their general locality. A person can make a request through the website and be provided with the photo(s) of any high risk sex offenders living in their postcode and adjoining postcodes. It applies to offenders who:

• are subject to dangerous sexual offender supervision orders (unless the court making the order specifically states publication should not occur)
• commit a further sex offence while already subject to reporting requirements
• have such a serious criminal conviction that the Commissioner of Police and Police Minister agree they present a serious risk to the safety of the public which warrants the public being able to access their photo on the website.

The commissioner will have discretion to decide whether to publish eligible offenders’ photographs on the website. Information may be restricted due to court orders or to avoid identifying victims. Offenders will receive 21 days notice that their image and locality is to be made available on the website and may lodge an objection with the commissioner. People who wish to access this information from the website must submit proof of their identity and their locality before accessing this information and must acknowledge that the information that becomes available will not be misused.

Tier 3: Is intended to allow parents and guardians only to determine if a person with direct access to their children and whom they may have concerns in relation to is a reportable offender. It applies to any reportable offender. A parent or guardian of any child can make a request through the website regarding a specific person with regular unsupervised contact with their child. Applicants must provide their full details, the identity of the person of interest and the level of contact that person has with the child. Police will assess the request and determine if it is genuine. The Commissioner of Police will always retain discretion to determine whether disclosure should occur.

If the person with access to the child is a reportable offender, the Sex Offender Management Squad of WA Police will contact the parent/guardian directly to advise them of this fact, and may attend the premises if the offender is in breach of his reporting obligations by being in contact with the child.

The media release offers the standard flannel -

safeguards, including records of persons accessing the website, and strict penalties if information was misused, would be in place to ensure the register was used only to improve the safety of the community.

Mr Porter said the register would provide the appropriate levels of publication of the most serious offenders.

“The State Government must balance competing considerations when deciding what is best for community safety,” the Attorney General said

“What we have delivered is a measured approach to an issue of considerable concern to the community where the key concern is giving parents fair and reasonable access to information that will enhance their ability to protect their children.

“Ultimately this Government trusts the WA public to behave responsibly when given access to the information which will help to keep children safe.”

Child Protection Minister Robyn McSweeney said child sex offenders did immeasurable damage to vulnerable children and the State Government had a responsibility to protect children from paedophiles.

“These laws will allow parents and others who are suspicious about a person involved in their child’s life or vicinity to check if they have been a convicted sex offender,” Mrs McSweeney said.

Irrespective of questions about the appropriateness of public registers, we might wonder about the desirability of leaving discretion in the hands of the Police Commissioner or Minister.

Practitioners

Reading the latest figures from the Australian Health Practitioners Registration Agency, a national body operating under the state statutes known as the Health Practitioner National Law Act 2009.

The AHPRA 2010-11 annual report is claimed as providing -

the first national snapshot of health practitioner registration in Australia. It details the number of registrants in each state and territory by profession and includes detailed data about categories of registration, endorsements on registration and the distribution of practitioners in each profession and in each state and territory.

The report includes information on the introduction of mandatory criminal record checks under the Health Practitioner National Law Act 2009 (now in each state and territory). The 2010-11 is the first time health practitioner criminal record checking has been conducted nationally. Under the regime all applicants for initial registration as a practitioner must undergo a criminal record check, with information being provided to the CrimTrac crim records clearing-house. AHPRA may also seek a report from a police commissioner or an entity in a jurisdiction outside Australia that has access to records about the criminal history of persons in that jurisdiction.. Checking of practitioners may be subsequently undertaken.

Failure to declare a criminal record by a registered health practitioner does not constitute an offence under the Health Practitioner National Law statutes. However, it may constitute behaviour for which a practitioner registration board (eg those concerned with general practitioners, nurses, surgeons, radiologists) "may take health, conduct or performance action".

APHPRA indicates that in 2010-11 the agency requested 52,445 criminal record checks. Of these, 2,992 (6%) of results indicated that the applicant had a criminal history. Of these, 449 (15%) were assessed as having the potential to affect registration. Action by a National Board in relation to 40 of that 449 was -

• one application refused: psychology
• six applications withdrawn (two medical, two psychology, one dental, one pharmacy)
• 31 conditions or undertakings imposed on registration (16 nursing and midwifery, eight medical, four pharmacy, two psychology, one physiotherapy)
• two practitioners had conditions imposed on registration at renewal (one nursing and midwifery, one pharmacy)

AHPRA currently has 140 personnel who are accredited to deal with CrimTrac.

The report offers statistics about practitioners -

• on 30 June 2011 there were 530,115 health practitioners registered in Australia under the national scheme. (Over 46,000 health practitioners have registered since 1 July 2010, many for the first time)
• AHPRA has managed more than 630,000 health practitioner renewals, with some practitioners renewing more than once "in the transition to nationally consistent renewal dates for professions across states and territories"
• nursing and midwifery are the professions with the most practitioners, with 290,072 registered nurses, 1,789 registered midwives and 40,324 practitioners registered as both nurses and midwives
• medical practitioners are the second largest group, with 88,293 registered practitioners followed by psychologists (29,142 practitioners), pharmacists (25,944 practitioners), physiotherapists (22,384 practitioners) and the 18,319 dentists, dental specialists, dental therapists, dental hygienists, oral health therapists and dental prosthetists who make up dental practitioners
• the remaining professions of optometry (4,442 practitioners), chiropractic (4,350 practitioners), podiatry (3,461 practitioners) and osteopathy (1,595 practitioners) make up the balance of Australia’s registered health practitioners
• New South Wales has the largest number of registered practitioners, with 156,104 practitioners across the 10 professions, followed by Victoria (136,651 practitioners) and Queensland (99,200 practitioners)
• the largest group of registered practitioners across the 10 professions is aged 50 – 54 years (72,457 practitioners or 14% of total registrants), followed by practitioners aged 45 – 49 years (65,308 practitioners) and practitioners aged 40 – 44 (65,203 practitioners).
• there are more females than males practising psychology, pharmacy, nursing and midwifery, podiatry and physiotherapy. There are more males than females practicing medicine, chiropractic, dental, optometry and osteopathy
• on 30 June 2011, there were 57,552 practitioners with specialist registration across three professions – medicine (56,012), dental (1,520) and podiatry (20).