Patents

'The Natural Phenomena Exclusion: Reflections on Substance and Method in the Crowded House of European Patent Law' by Justine Pila in Intellectual Property at the Edge: The Contested Contours of IP (Cambridge: Cambridge University Press 2012) edited by Dreyfuss & Ginsburg considers the 'natural phenomenon' exclusion in patent law, ie patent protection is provided for inventions rather than for discovery of something that is naturally occurring.

Pila indicates that -

This paper responds to a chapter by Professor Ted Sichelman in which he criticizes the conceptual apparatus developed by the US courts for applying the natural phenomena exclusion from US patentability on the ground that it fails “to promote the progress of science and useful arts” as the US constitutional clause granting federal patent authority requires. The focus of the response is the problem which Sichelman’s analysis underlines for European law concerning the appropriate method for establishing the limits of European patentability. In the argument made, European patent law is a crowded house in which “substantive convergence” around principles is inevitable but unsatisfactory: it will generally be the product of complex institutional dynamics as much as principled policy making, and in the absence of unified methodology and values will fail to ensure coherence or consistency within the European patent system. ...

The foundational principles of European patentability are contained in the Convention on the Unification of Certain Points of Substantive Law on Patents for Inventions (S.P.C.), on which the Convention on the Grant of European Patents (E.P.C.) is also based. Article 1 S.P.C. establishes the obligation of Contracting States to grant patents “for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.” Article 2 S.P.C. creates exceptions to this for “inventions the publication or exploitation of which would be contrary to ordre public or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by a law or regulation”, and “plant or animal varieties or essentially biological processes for the production of plants or animals” excluding “micro-biological processes and the products thereof”. Both provisions have an E.P.C. counterpart – Article 1 S.P.C. in Article 52(1) E.P.C., and Article 2 S.P.C. in Article 53(a) and (b) – the only differences of current importance being that Article 52(2) E.P.C. defines an “invention” within the meaning of Article 52(1) to exclude “discoveries ... as such” (among other things), and that Article 53(a) E.P.C. clarifies that an invention is not to be excluded from patentability on order public or morality grounds “merely because it is prohibited by law or regulation in some or all of the Contracting States” (emphasis added).


European patent law is an increasingly crowded house with no clearly defined boundaries and no clear hierarchy of legal norms. As mentioned above, its foundational legislative instruments are the S.P.C. and E.P.C., both of which are the products of intergovernmental agreements negotiated over a period of more than 20 years by the Council of Europe, the European Economic Community and two specially-convened diplomatic conferences. The E.P.C. is of particular importance due to its creation of a system for the grant of European patents and the E.P.O. to administer it. It was concluded in 1973 and later revised several times, including to incorporate the Biotech Directive. Consistent with the nature of a “European patent” as a bundle of national (E.P.C. Member State) patents, it is implemented and supplemented by those States’ national laws, at least some of which must be interpreted consistently with the Boards’ interpretation of the E.P.C. By its incorporation of the Biotech Directive, it is also the subject of EU jurisprudence, including decisions of the C.J.E.U., which take constitutional priority over decisions of national courts and the E.P.O. in all EU Member States, but which are not binding on the E.P.O. as a non-EU entity. Finally, and by its concern with property and other “fundamental rights”, it is the subject of decisions of the European Court of Human Rights, which, while not formally binding, are recognized as an important source of human rights jurisprudence, and the starting point for interpretation of the Charter.

Marketing

From the deliciously named McCann Truth Central - I do love the chutzpah of advertising agencies - comes The Truth About Privacy -

Four forces are shaping the new privacy norms. Technology’s ascendance, omnipresent celebrities, the end of embarrassment,and the role of social networking in civic life are all pushing us into a brave new world of sharing.

Technology’s ascendance:
Asked for their spontaneous associations with the word ‘privacy’ in our groups, the first words that came to mind for our respondents were all related to technology. Technology has a created a more fluid and borderless world. As one younger person from the US said, “You put your info in a little lake, and then it goes into a river and then it goes into the ocean.” Unlike the real world it’s harder and harder to see where the ‘edges’ are which makes it harder to give consumers a sense of control over their own data.

Omnipresent celebrities:
Celebrities have raised the bar for what is and isn’t acceptable to share in public. The name Kim Kardashian seems more likely associated with a focus group about fragrances or luxury products. But in our groups, the name was associated with changing privacy norms. Celebrities like the Kardashians have capitalized on Twitter and other social media trends, sharing their lives more than ever before with their fans. Now anyone can become a celebrity if they just tweet enough!

The end of embarrassment:
With so much being shared, it’s much harder to actually be embarrassed about something these days. Many in our groups wondered why politicians or stars caught making risqué tweets or texts were often trying to cover their actions. As one person noted. “Everything is hanging out… so why should I be embarrassed about, you know,anything?” How many of us have overheard (or had) a private conversation in public on a cell phone?

The role of social networking in civic life:

The most overwhelmingly positive aspect of this networked world is the increased sense of connection associated with online sharing. Social networks have become the new place to gossip, to have a rant, and to get important news about your friends, family and community. While for some a shift towards a digital village may be alienating, for many others it’s brought them closer to friends and family who live far away.For many, including older consumers, it has brought a renewed sense of connection with civic life.

Presumably, having become a celebrity simply by twittering - perhaps the aim of one of my more frenetic colleagues - one can be more connected with civil society.

The report goes on to claim that -

All of these factors ensure that there is less and less of a clear separation between public and private. More and more we seem to be asking ourselves: What is appropriate to share and what should we hold close? Further, what is it appropriate to search about others? Our research suggests that searching and snooping is becoming more commonplace. Lately it’s actually become quite normal for us to find out excessive amounts of information about a casual acquaintance or someone we hardly know, simply because that information is out there. While only 1 in 10 admit to the old-fashioned snooping of reading someone’s diary, many more have used technology to learn about the lives of others. 40% of people say they’ve looked at the online photographs of people they hardly know. As a young respondent from Australia commented,“I’ve stalked people on Facebook, everyone does.” In a world where more and more people are searching for information about us online, we need to devote more time to managing our online brand (or multiple online brands). People describe needing to separate the ‘virtuous me’ that is suitable for family and employers (no drunken party pics) from the ‘popular me’ which we must project to friends and social acquaintances that we seek to impress. Some even resort to anonymity to protect their identity from unwelcome snooping. As online identity and privacy becomes a more complex business and at the same time more brands seek to interact with their customers online, it begs an important question: Which version of your customer are you interacting with today?

Given that surveillance is 'natural' and 'inevitable' marketers apparently should be unabashed. McCann offers 'the privacy equation' -

Implicit in the varying importance of different types of data is a marketplace where data is a valuable good, to be traded and monetized. We think of this as the privacy equation.

A big part of the privacy equation is having active tools to maintain control of your side of the equation, your personal privacy online. Globally we see that people are becoming accustomed to taking protective measures. 73% have taken the basic step of securing anti-virus software for their computer. Nearly half (47%) are being selective about who they add to online social networks, only ‘friending’ their real life friends and acquaintances. There seems to be a debate among generations about who is better at managing their privacy. The older group believes that the brave new world of sharing may someday catch young people off guard.

But young people are taking more active measures to protect themselves: 84% of those under 30 with a social networking profile have changed privacy settings, while only 58% of those over 40 have done so. One trend we noticed is that the older generations are looking to one another – to their community – to manage their technology. They rely on anecdotes and warnings from friends and family to help them secure themselves in the face of new and varied threats. Young people, on the other hand, tend to use technology to manage their friends and community.

That supposedly means -

For all types of company and brands, there are four key dynamics to privacy when it comes to maintaining a proactive,productive and share-worthy relationship with consumers: Control, choice, commitment and compensation are the key to assurance and trust.

People want a commitment from companies that they won’t pass personal data [ie their telephone number or email address] on to third parties. 55% (56% US) of people select this as one of their top 3 most important criteria when deciding to trust a brand. They also want a choice about how their data will be used. 51% (57% US) say it is important to know exactly how their data is going to be used.

When it comes to control, people want to be in command of which pieces of data they share. 49%(55% US) think it is very important to have this control, reflecting their sensitivity level for different types of data. Consumers also want compensation. They want a reason to share data, an understanding of how they will benefit. 31% (30% in US) say this is a top criterion for sharing data

All in all a fatuous and on occasion disingenuous report with little original data and no substantive original insights.

Diversions

'The use of police cautions and youth justice conferences in NSW in 2010' [PDF] by Elizabeth Moore of the NSW Bureau of Crime Statistics & Research (BOCSAR) assesses whether the philosophy of the Young Offenders Act 1997 (NSW) is "being adhered to in respect to the nature of offences being diverted and the use of the hierarchical approach to sanctioning". It describes the use of police cautions, youth justice conferences (YJCs) and proven Children’s Court appearances among a cohort of young people in NSW in 2010, with data drawn from the NSW Re-offending Database (ROD).

The Act applies to young people in NSW aged between 10 and 17 years at the time of the offence. A number of offences are excluded from the Act and must result in a court appearance. These include most sexual offences, offences that result in the death of any person, serious drug offences and traffic offences (if the offender is old enough to hold a driver’s licence).

Whether the offence can be dealt with through the YOA is only one determining factor in selecting the appropriate level of intervention. A number of other factors influence the decision, including the age of the young person at the time of the offence, the seriousness of the offence (taking into account the harm to the victim and the level of violence involved), prior offending history, and whether the young person makes an admission of guilt (Clancey, Doran and Maloney, 2005). If an admission of guilt is not made, offences cannot be processed by way of a police caution or a YJC. The legislation specifies a limit of three police cautions per individual. No such limits are prescribed for YJCs. It is, however, generally understood that a young person would not be offered multiple YJCs if they continued to re-offend (Clancey, Doran and Maloney, 2005).

Despite the fact that there is a great deal of public interest in the Act, little is known regarding the proportion of young people receiving multiple police cautions and YJCs.

Moore indicates that -

Overall, the results were in the expected direction when the hierarchy of sanctions under the Act are considered (ie from police caution to YJC to proven court appearance). Very few young people in this cohort received more than three police cautions and/or YJCs. Additionally, no young person was given a YJC for homicide related offences that are excluded under the Act. Juvenile offenders, however, were much more likely to receive a caution or be referred to court than to be referred to a Youth Justice Conference.

The philosophy of the Act has largely been adhered to, at least insofar as the gradation of sanctions and the types of offences being diverted are concerned.

Moore's separate paper 'Youth Justice Conferences versus Children’s Court: a comparison of time to finalisation' [PDF] compares police-referred youth justice conferences (YJCs), court referred YJCs and Children’s Court matters on the time to finalisation, and assesses the contribution of index offence- and/or offender-related characteristics as potential confounders.

The study utilised data from the NSW Re-Offending Database (ROD) for three cohorts of young people: those with a court-referred YJC held in 2010 (C-YJC), those with a police-referred YJC held in 2010 (P-YJC), and those with a proven Children’s Court (CC) appearance finalised in 2010. Negative binomial regression models were fitted to determine index offence- and offender-related characteristics associated with time to finalisation.

The C-YJC cohort had a significantly longer time to finalisation compared to the CC cohort and the P-YJC cohort, even after controlling for confounders. In addition, the CC cohort had a significantly longer time to finalisation compared to the P-YJC cohort. Older age, being Indigenous, having a case dealt with in a Metropolitan region, and having more concurrent index offences remained significant predictors of an increase in number of days to finalisation in the adjusted model.

The findings suggest that police should be encouraged to refer eligible matters to a YJC given the time-related efficiency identified via this pathway. The findings suggest it may be appropriate to consider further revising the legislated time-frames as there may be legitimate reasons for why delays occur.

HK Personality

'No Personality Rights for Pop Stars in Hong Kong?' by Peter Yu, on SSRN and as a chapter in The New Law of Brands and Reputation in the Asia Pacific Rim (Cambridge: Cambridge University Press 2012) edited by Andrew Kenyon, Ng-Loy Wee Loon & Megan Richardson, notes that -

Referred to as 'the Pearl of the Orient' for generations, Hong Kong is a glamorous city known for its lavish lifestyle and the rich and famous. Its entertainment products, in particular movies, television programs, and music, are highly popular in not only Asia, but also different parts of the world. Yet, the region does not offer strong protection of personality rights to celebrities. This development provides an interesting contrast to developments in the United States, where Hollywood actors receive very strong protection of their name, likeness, image, voice, or other personal attributes. The lack of protection also contrasts strongly with that of China, which offers in its civil code a right of portrait.

This book chapter begins by tracing the American origin of the right of publicity as an independent cause of action. It underscores the difference between this discreet right and the type of protection available in Commonwealth jurisdictions. The chapter then discusses the leading case in Hong Kong, Lau Tak Wah Andy v. Hang Seng Bank Ltd. The chapter explores why Hong Kong has yet to offer strong protection of personality rights despite having fertile conditions for such development. The chapter concludes by focusing on three areas of influence that may impact the future development of personality rights in Hong Kong.

Yu concludes that -

Although there has been a growing trend to harmonize intellectual property standards throughout the world, personality rights are unlikely to be the subject of such harmonization. The reasons are twofold. First, countries remain deeply divided over how a celebrity‘s identity is to be protected. In light of these deep divisions, it is unlikely that an international consensus would emerge in the near future. Indeed, international harmonization has been slow even in areas where there are greater international consensus, such as the promotion of access to essential medicines in less developed countries and the protection of traditional knowledge and cultural expressions. n this area of law, one can only imagine how limited harmonization will be in the near future.

Moreover, one of the major champions of international harmonization — the United States — has yet to attain consensus over the protection of personality rights at the national level. To date, the strength and scope of protection under state rights of publicity vary from state to state. Although there have been proposals calling for the establishment of a federal right of publicity statute, those proposals have yet to be adopted. Without a federal right of publicity, it is unlikely that the United States would seek greater international harmonization in the near future.

Although Hong Kong has many successful entertainers and entertainment products, it has yet to offer strong protection of personality rights. The lack of such protection provides a useful case study to understand the development of intellectual property protection in the Asia Pacific region. Through the historical British roots of Hong Kong intellectual property law, the study highlights the path-dependent nature of intellectual property development as well as the challenges confronting the establishment of new intellectual property rights. The limited protection in Hong Kong also foreshadows the larger debate about the future of protection for brands and reputation in the Asia Pacific region.

While it remains unclear whether Hong Kong will eventually offer stronger protection of personality rights, there is no doubt that the issue will deserve our close attention in the near future. There are, indeed, strong reasons both for and against greater protection of personality rights in Hong Kong. Hopefully, this chapter will provide the much-needed groundwork to help us understand better the need for and challenge in strengthening protection in this area.

FTC Breach

'The 10 Year Anniversary of the FTC’s Data Security Program: Has the Commission Finally Gotten Too Big for Its Breaches?' [PDF] by David Zetoony in 1 Stanford Technology Law Review (2012) 1-11 questions action by the US FEderal Trade Commission over data breaches and data security.

Zetoony argues that -

An online company provides products to individuals and small businesses. Like most online companies, it collects various types of information from its customers such as email addresses for notifications, mailing addresses for product shipment, and credit and debit card numbers for payment.

From its inception, the company’s management takes data security very seriously. The company forms an interdepartmental team to assess potential vulnerabilities to the company’s website, computers, and physical building, creates a written data security plan and policy, and, each year, conducts a data inventory to help identify where it stores the information that it collects and who has access to that information. As the company grows, it may even hire a Chief Privacy Officer who does everything from training employees on how to shred old invoices to making sure that the company’s growing list of outside vendors don’t have disparate data security practices. This company has complied with its obligation to secure consumer data, right?

Maybe not. The Federal Trade Commission’s settlements with SettlementOne Credit, ACRAnet, Inc., and Fajilan and Associates, Inc. suggest that in addition to enacting good practices for their own operations and making sure that their vendors do the same, companies are responsible for making sure that their customers have adequate data security. Although the FTC cites several statutes as the basis for this “duty to police customers,” it is not at all clear that the FTC’s theory could survive judicial scrutiny. Part I of this article provides a brief history of the FTC’s success over the past ten years to position itself as the primary federal regulator concerning issues of data security. Part II discusses the FTC’s recent enforcement actions and settlements with SettlementOne Credit, ACRAnet, and Fajilan. Part III analyzes the limits of the FTC’s data security enforcement powers. As part of this analysis, it reviews the scope of the new duty that the Commission proposes as part of the Reseller settlements, and analyzes whether the duty that the Commission seeks to impose can be supported by the Commission’s authorizing legislation. Finally the article concludes that the Commission’s attempt to create a new duty to police customers lacks firm statutory support and may not be successful if challenged in court.

Shipping

The 64 page Maritime Transport and Destabilizing Commodity Flows (SIPRI Policy Paper no. 32) by Hugh Griffiths and Michael Jenks of the Stockholm International Peace research Institute argues that over 60% of ships involved in reported cases of sanctions-busting or illicit transfers of arms, drugs, other military equipment and sensitive dual-use goods that could be used in the development of missiles and weapons of mass destruction are owned by companies based in the EU, NATO or other OECD states. That's not particularly surprising: much of the world's shipping is controlled by the North, albeit crewed by people from The South.

The report [PDF] is ambitiously claimed to be the first comprehensive study on maritime trafficking.

The authors comment that -

Maritime transport dominates international trade in licit and illicit goods. It accounts for the majority of seizures and suspect shipments of military equipment and dual-use goods (goods that have both civilian and potential military applications, including in the development of weapons of mass destruction and missiles) originating from or destined for embargoed states such as Iran and North Korea. It is the primary means of delivering shipments of conventional arms to actors involved in conflicts in Africa. Sea transport plays a major role in global flows of narcotics and associated chemical precursors. It is also the main mode of transport for other illicit and potentially destabilizing commodities, such as smuggled tobacco, oil and counterfeit goods.

One reason why maritime transport offers the greatest scope for trafficking of destabilizing commodities is that it is more difficult for states to monitor and control than any other means of international bulk transport. Jurisdiction over merchant shipping in international waters rests with a vessel’s flag state and, as a result, ships suspected of carrying destabilizing commodities cannot be boarded — and the commodities seized — without the prior agreement of the flag state.

The majority of ships involved in reported destabilizing military equipment, dual-use goods and narcotics sail under so-called flags of convenience and are registered in flag states with limited regulation and control of their merchant fleets. Nevertheless, the ships’ owners are mainly companies based in European Union, North Atlantic Treaty Organization and Organisation for Economic Co-operation & Development member states.

The most common ship types used in reported destabilizing military equipment, dual-use goods and narcotics transfers are general cargo ships and container ships. Ships involved in cases where the owner, commercial operator or officers appear to have been complicit in the transfer have an average age of more than 27 years. These ships tend to have poor safety and environmental inspection records or to have been involved in previous accidents or pollution incidents. A majority of the flags of convenience under which these vessels sail have been consistently targeted for inspection by port state control (PSC) regimes on the basis of poor performance in previous inspections.

They go on to argue that -

Arms proliferation networks are increasingly adopting techniques pioneered by drug trafficking organizations that integrate their logistics operations within the global supply chain through the use of sealed shipping containers, which are carried aboard vessels that are owned by mainstream shipping companies and engaged in licit trade. Such techniques represent the most cost-effective method when traffickers are confronted by well-resourced and coordinated surveillance operations supported by international agreements such as United Nations arms embargoes and counter-narcotics conventions.

There are significant differences between the frequency with which different types of commodity involved in destabilizing transfers are seized when detected. While almost all reported cases involving narcotics and precursors end in seizure
of the commodity, seizure rates for destabilizing military equipment and dual-use goods transfers are highly dependent on the countries involved. Significantly, more than half of reported destabilizing transfers to or from Iran and North Korea have resulted in seizure, but the seizure rates for shipments ultimately destined for embargoed states, regions or groups in Africa have been very low.

In response SIPRI offers seven recommendations -

1. Efforts to counter maritime trafficking should recognize the utility of PSC as a ‘choke point’ to monitor and control poorly regulated flag of convenience ships suspected of involvement in destabilizing commodity flows.
2. The more advanced PSC regimes should initiate outreach, training and technical cooperation to PSC authorities at ports identified as being more frequently visited by vessels suspected of involvement in particular destabilizing commodity flows.
3. At national level, operational links should be strengthened between PSC authorities and export control, customs, security and intelligence agencies. PSC authorities should be trained to identify suspect cargoes and ships.
4. At international and regional levels, formal and informal information sharing on suspect vessels should be improved between different governments and relevant PSC authorities.
5. Political support should be enhanced for a holistic approach to maritime security, using technologies, instruments and assets currently used for environmental protection, ship monitoring, fisheries protection and other aspects of maritime governance and surveillance in order to better target destabilizing maritime trade.
6. Governments should initiate dialogue with global shipping industry representatives on addressing destabilizing maritime trade, in particular the growing use of containerization.
7. In the EU, a mechanism should be established for sharing information on suspect shipments and ships that effectively shares information with and between relevant government agencies and PSC authorities.

Creativity

As an aficionado of Byzantine history, of imposture and of clerical squabbling - even more vicious than the conflicts within academia - I was amused by a reader's pointer this morning regarding allegations against South Australian religious figure Prokopios Kanavas. He has reportedly been called to a meeting of Greek Orthodox Community of South Australia council leaders to discuss claims Kanavas has made on his Facebook profile.

Kanavas has been in the news over the past two years. Kanavas was sacked as an SA police chaplain in 2011 when the state government was made aware of information that allegedly affected his "suitability" for the role, apparently centred on claims that he had been defrocked as a priest in 2008, joined the Greek army, subsequently being ordained by other church authorities and then moving to Adelaide.

His profile reportedly features claims that Kanavas completed a degree of theology and international law at the Hebrew University of Jerusalem, represented the Patriarchate of Jerusalem at conferences and restored a monastery at his own expense. The university reportedly indicates that there is no record of him studying at the institution. What's claimed to be a letter from the Patriarchate of Jerusalem contests the other claims.

If Kanavas has indeed been creative with his CV, he's not alone. Past entries in this blog have highlighted the creativity of figures such as Stephen Wilce, Dusan Milosevic, Greg Mortenson, Vitomir Zepinic, James Montgomery and Rex Crane.

Those figures were more modest than some pre-modern identity criminals, crazies or enthusiasts. Matthew vii 15 warns of false prophets "who come to you in the clothing of sheep, but inwardly they are ravening wolves". Some of those wolves were impressively dressed.

Gregory of Tours' Historia for example features an enthusiast who at the end of the sixth century declared himself to be Christ, travelling in the neighbourhood of Arles in company of Mary, performing miracles and gathering followers until struck dead by a representative of Bishop Aurelius. Ecclesiastical fraudster Paulus Tigrinus successfully conned Pope Boniface IX and Antipope Clement VII into colluding in his assertion that he was the wandering Patriarch of Constantinople. False bishops Adelbert and Clement, active in Germany around 744 CE, gained attention for unorthodoxy (Adelbert told his followers it was unnecessary to confess their sins because he already read their hearts) and assertion that their authority was confirmed by a miraculous letter from Jesus Christ that had supposedly fallen from heaven and been picked up by the Archangel Michael. Lest we scoff too much about mediaeval credulity regarding unorthodox delivery of correspondence we might recall the golden tablets and magic spectacles of Latter Day Saints founder Joseph Smith or the beliefs espoused by Tom Cruise after conversion to Scientology. Franciscan friar James of Jülich was sentenced to be boiled alive in 1392 after the bad career move of pretending to be a bishop and falsely ordaining numerous priests.

Meanwhile Christian Gerhartsreiter (aka Christopher Chichester and Clark Rockefeller) has been ordered to stand trial for the 1985 murder of landlord John Sohus. Gerhartsreiter's career of imposture is described in The Man in the Rockefeller Suit: The Astonishing Rise and Spectacular Fall of a Serial Imposter (Viking, 2011) by Mark Seal.

Sharing

The communique from the New Zealand and Australian Prime Ministers regarding the annual Australia-New Zealand Leaders’ meeting on 29 January features an item on data exchange -

Criminal History Sharing

The Prime Ministers agreed to enhance the reciprocal sharing of criminal history information for employment vetting purposes and plan an initial six month trial with Queensland to test how consistent and systematic requests for criminal history checks for employment purposes can be facilitated between Australia and New Zealand. They also directed officials to accelerate the work under way on reciprocal information sharing to support border control and law enforcement, consistent with free movement of people across the Tasman.

Last month, following revelations about a $21m fraud in a Queensland government health agency, the state premier announced that -

Currently Queensland Police conduct background checks via the Federal Government’s CrimTrac national database, which is limited to Australian jurisdictions only.

Ms Bligh said she had discussed with both Prime Ministers the need to broaden CrimTrac to include New Zealand’s criminal records database. This would allow police to easily identify any employees who had been previously convicted of criminal offences in New Zealand.

“Like all Queenslanders, I am angry and appalled at the theft of $16 million from taxpayers that should have been spent on health services,” Ms Bligh said.

“That’s why I have acted immediately to get answers on how and why this has occurred.

“Queensland Police have a good working relationship with their counterparts in New Zealand on a case-by-case basis but the data is not exchanged as part of their respective criminal history checking processes.

“But it has become clear there may be a heightened risk of people with criminal histories remaining undetected given the free flow of Australian and New Zealand citizens who are able to live and work in both countries.

“That’s why I have this morning spoken directly with Prime Minister Julia Gillard and the New Zealand Prime Minister John Key to discuss how we can work together to share information that will stop criminals from exploiting this loophole.”

Ms Bligh said both Prime Ministers shared her concerns about the need to tighten up procedures and were seeking urgent advice on the next steps that were needed.

“Whilst this fraud has occurred against the people of Queensland, the exclusion of New Zealand criminal histories from CrimTrac meant this could have happened to any public sector agency across Australia,” Ms Bligh said.

“Similarly, Australian criminals may be taking advantage of this situation in New Zealand.

“It is critical law enforcement agencies on both sides of the Tasman are able to quickly access the most accurate information on anyone who has a history of offending, especially where they are working in positions of trust. ... We will leave no stone unturned in getting answers and I won’t hesitate to hold those responsible to account.”

New Zealander Hohepa Morehu-Barlow, who among other things claimed to be royalty, was arrested last month after claims that $21m had been embezzled from Queensland's health authority. That news coincided with conviction of New Zealander Warren Attfield for another fraud in Queensland. Attfield was sentenced to five years in a NZ prison in 1996 after admitting defrauding South Wood Exports of $2.8m to fund his gambling, described in Two over three on Goodtime Sugar: the New Zealand TAB turns 50 (Wellington: Victoria University Press 2000) by David Grant. At the end of his sentence Attfield moved to Australia and in the absence of an Australian criminal record became finance officer at the Yaamba Aboriginal & Torres Strait Islander Corporation for Men. He defrauded the corporation of over $300,000, confessing when the organisation did not have enough money to pay staff wages.

Yaamba's former manager Bob Salam is reported as stating that -

he would not have hired him if he had known about [Attfield's] convictions.

"We were looking for a bookkeeper and his name came up," Salam said.

Attfield presented a reference from another Aboriginal corporation in Kalgoorlie, Western Australia, but did not mention any convictions, he said.

"We didn't get a check ... He was a good employee, he seemed to be going great guns. He was getting the books done and seemed pretty clued up on stuff."

Salam said he knew Attfield liked a bet but never suspected he had a gambling problem or was stealing money to pay for it.

"I used to go to the TAB with him," he said.