ACCC and Consumer Contracts Review

The  Australian Competition & Consumer Commission (ACCC) has released its brief report [PDF] on Unfair Contract Terms: Industry review outcomes.

The Commission notes that the Australian Consumer Law (ACL) "incorporates various provisions targeting specific consumer issues, including provisions which render void unfair terms in standard form consumer contracts".

The ACCC reviewed standard form consumer contracts through the lens of these provisions in the airline, telecommunications, fitness and vehicle rental industries, as well as some contracts commonly used by online traders. A select number of standard form contracts used by prominent travel agents were also examined. 

During these reviews, the ACCC identified issues under both unfair contract term laws and broader consumer protection laws. The ACCC worked with businesses to remove or change unfair terms in standard form contracts and address identified issues. 

Its report summarises the outcomes of the reviews, commenting that the following types of terms were of particular concern -

1. Contract terms that allow the business to change the contract without consent from the consumer. 

2. Terms that cause confusion about the agency arrangements that apply and that seek to unfairly absolve the agent from liability. 

3. Terms that unfairly restrict the consumer’s right to terminate the contract. 

4. Terms that suspend or terminate the services being provided to the consumer under the contract. 

5. Terms that make the consumer liable for things that would ordinarily be outside of their control. 

6. Terms that prevent the consumer from relying on representations made by the business or its agents. 

7. Terms seeking to limit consumer guarantee rights. 

8. Terms that remove a consumer’s credit card chargeback rights when buying the service through an agent.

The ACCC states that "particularly significant changes were achieved in relation to standard form contracts of major airlines, with 79% of problematic terms identified by the ACCC amended or deleted as a result of the review".

The ACCC goes on to note that

The national unfair contract terms laws came into effect on 1 July 2010. Part 2–3 of the ACL provides a court may determine that a term of a standard form consumer contract is unfair and therefore void. Under the ACL, a ‘consumer contract’ means a contract for the supply of goods and services or the sale or grant of an interest in land, to an individual who acquires it wholly or predominately for personal, domestic or household use or consumption. 

Although the unfair contract terms provisions do not define a ‘standard form contract’, they outline a number of factors that the court must take into account in determining whether a contract is a ‘standard form contract’. In broad terms, it will typically be one that has been prepared by one party to the contract and is not subject to negotiation between the parties – that is, it is offered on a ‘take it, or leave it’ basis. 

The unfair contact terms laws do not apply to a contract to supply goods or services from one business to another for business use. 

Similar unfair contract terms provisions exist under the Australian Securities and Investments Commission (ASIC) Act in relation to standard form consumer contracts for financial products and services. 

A test consisting of three elements is used to determine whether a term is unfair. 

A term of a consumer contract will be considered unfair if: 1. it would cause a significant imbalance in the parties’ rights and obligations under the contract 2. it is not reasonably necessary to protect the legitimate interest of a party to the contract (note that the party who would be advantaged by the term must prove that it is reasonable necessary), and 3. it would cause detriment to a party to the contract if it were to be applied or relied upon. 

All three elements of the test must be proved in order for a court to find that a term is unfair. In determining whether a term is unfair in accordance with the test, the court must take into account the extent to which the term is transparent, and the contract as a whole. xxxx The laws also provide examples of the types of terms that may be considered unfair and provide a framework for assessing the transparency of terms. Terms that set the upfront price and subject matter of a contract, and terms that are expressly required or permitted by another law are excluded from the unfair contract terms provisions. 

Enforcement of the unfair contract terms is shared between the ACCC, ASIC and the state and territory consumer protection agencies. Individual consumers can also seek to enforce their rights under the law. The ACCC, ASIC and the state and territory consumer protection agencies may apply to the court for a declaration that the term of the contract is unfair. It is then the role of the court to determine whether this is the case. 

If a court makes a declaration that a term is unfair and a party subsequently seeks to apply or rely on the unfair term, the court may make orders including to vary the contracts or arrangements; an order refusing to enforce any or all of the terms of the contract; or an order directing the person to refund money or property to the injured person.

Courts and security

From the Explanatory Memo for the Court Security Bill 2013 (Cth) -

This Bill creates a new framework for court security arrangements for federal courts and tribunals. The new framework will meet the security needs of the modern court environment by providing a range of powers for security officers, and limited powers for authorised court officers, to ensure that court premises are safe and secure environments for court users, court staff, judicial officers and other persons on federal court and tribunal premises. The Bill replaces the current security framework for federal courts and tribunals under Part IIA of the Public Order (Protection of Persons and Property) Act 1971 (Public Order Act). 

For ease of reference, the use of the term 'court' ... includes all federal courts, the Family Court of Western Australia (FCWA) and the Administrative Appeals Tribunal (AAT) unless otherwise specified. 

Part 1 of the Bill deals with preliminary matters, including commencement and definitions. It also provides a guide to the remainder of the Bill. 

Part 2 of the Bill establishes the framework for the exercise of security powers on court premises. Division 1 provides for the appointment of security officers and authorised court officers by administrative heads of courts and requires appointed officers to hold prescribed qualifications. Divisions 2, 3 and 4 outline the powers available to security officers and authorised court officers and prescribes certain offences related to non-compliance with the exercise of these powers. Division 5 authorises security officers to escort people to and from court premises as a protective measure. Division 6 provides various safeguards around the exercise of security powers, including requiring security officers to be appropriately licensed under a law of a State or Territory, and to carry, and produce, identification when exercising a security power in relation to a person. Division 7 provides for complaint procedures in relation to the exercise of powers by officers under the Bill, and an oversight role for the Commonwealth Ombudsman. 

Part 3 of the Bill prescribes certain additional offences connected with court premises including possessing a weapon on court premises, making an unauthorised recording or transmission on court premises, and unreasonably obstructing a person's entry to, or activity on court premises. 

Part 4 of the Bill provides for judicial officers of courts exercising family law jurisdiction to make restraining or protection type orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts. 

Part 5 of the Bill deals with miscellaneous matters including immunity from suit, compensation and delegations. It also enables the Governor-General to make regulations. 

The Court Security (Consequential Amendments) Bill 2013 removes the courts and tribunals covered by this Bill from the application of provisions of the Public Order Act.

Intercepts

The Commonwealth Telecommunications (Interception and Access) Amendment Regulation 2013 (No 1) amends the Telecommunications (Interception and Access) Regulations 1987 (here) to prescribe declared organisations within the meaning of s 7 of the Serious Crime Control Act (NT) as criminal organisations within the definition of section 5 of the Telecommunications (Interception and Access) Act 1979 (Cth) (here).

Droit Financials

Information from the response to Parliamentary Questions by Senator Gary Humphries regarding the Australian droit de suite (Resale Royalty Scheme) administered by Copyright Agency Limited (CAL)

1. What is the total value of royalty collections to date, including figures for each quarter.

The total value of royalty collections is $805,115.70. Data is collected on a six monthly basis.

2010 July-Dec: $26,191.80

2011 Jan- June: $128,323.80

2011 July-Dec: $204,811.20

2012 Jan-June: $153,670.50

2012 July-Dec: $292,118.40

2. What percentage of the total value of royalties collected has gone to Indigenous artists, including figures for each quarter.

Since the commencement of the scheme, 59% or $440,042 has been paid to Indigenous right-holders. Actual payment data is only available as a total. A disaggregation would require an unreasonable diversion of resources.

3. What are the annual Art Centres figures for first sales of Indigenous art.

The Department does not have the requested information

4. What is the total value of the top 600 individual royalty payments to date.

 $296,772

5. How many individual right-holders received the top 600 individual payments.

150

6. How many of the top 600 individual royalty payments have gone to Indigenous right-holders, including figures for each quarter.

301 payments for 91 right-holders -

2010 July-Dec: 17 payments

2011 Jan-June: 61 2011

July-Dec: 59

2012 Jan-June: 76

2012 July-Dec: 88

7. To date, what is the total value of the lowest 2,000 individual royalty payments.

$115,379 

8. If the scheme can deliver the smallest individual artist royalty payment at $50, with a 10% administration fee of $5, why does the scheme charge an administration fee of $1,000 to deliver an individual royalty payment of $10,000.

The scheme allows the collecting society to charge a 10% administration fee on each royalty paid to contribute to the scheme becoming self-sustaining over time.

9. After deducting non-recurrent set-up costs, what is the average cost of the CALs individual royalty payments to date.

$30

CIR and Loopy Eunuchs

The Senate has referred the Citizen Initiated Referendum Bill 2013 - proposed by the sole Democratic Labor Party senator - to the Finance and Public Administration Legislation Committee for inquiry and report by 24 June 2013, with submissions due 19 April.

The Committee is to consider:

1. Citizens' Initiated Referendum (CIR) promotes greater openness and accountability in public decision-making.

2. Laws instituted as a result of a CIR are more clearly derived from the popular expression of the people's will.

3. Government authority flows from the people and is based upon their consent.

4. Citizens in a democracy have the responsibility to participate in the political system.

5. The Inter Parliamentary Union's call on member states to strengthen democracy through constitutional instruments including the citizen's right to initiate legislation.

A legal scholar might consider items 1 through 5 as claims, and problematical claims at that, rather than facts.

The actual Bill is less scary than it sounds, with the senator indicating that the object is to enable Australian citizens to initiate a proposal for a referendum to amend the Constitution.

The expectation is that

a) electors must register to amend the Constitution with the Electoral Commission; and

b) the Electoral Commission must review the application to determine whether the proposal relates to amending the Constitution; and

c) if the application is relevant, that the Elector must submit a document to the Electoral Commission containing the signatures of at least 1% of all Australian Electors; and

d) at least 3% of those signatures must be checked randomly by the Electoral Commission to confirm their validity; and

e) the Minister is responsible for introducing a Bill into Parliament to initiate the legislation to have a referendum to consider a proposal to amend the Constitution, should the Electoral Commission confirm that the necessary criterion has been fulfilled; and

f) the first Saturday of October in 2016 and every fourth year afterward will be the day for a referendum to take place.

Presumably once every four years we get to enjoy watching referenda from coelecanths on such utterly important matters as a 'space shield' to protect us from aliens, a canal from Adelaide to Uluru or establishment of Daniel Mannix Day as a national holiday. (The first referendum under the Citizens Initiated Referenda Act 1993 (NZ) somewhat more sensibly asked New Zealanders to vote on the number of full-time professional firefighters employed by the government.)

The 1994 Parliamentary Research Service paper on CIR commented that

Like other proposals to renovate representative democracy [CIR has] however, been subject to considerable criticism. It is argued that:

• the CIR process can be captured by well financed interest groups;

• CIR supporters mistake majority rule for genuine democracy;

• CIR are socially divisive and prone to produce short-term radical solutions to complex problems and are totally unsuitable for certain areas of policy formulation (eg defence and foreign affairs);

• CIR are costly and destructive of good planning; and

• CIR pose a threat to representative and responsible government and make little provision for minority views

before going on to quote Geoffrey Barker's claim that although CIR "has, of late, attracted some surprisingly respectable friends" it is "largely supported by a raft of 'dreamers and zealots"and

is the last refuge of the political eunuch and loopy populist, and it exposes the nation to dangers including the exploitation of irrational fears and prejudices, and lack of balance and consistency in national policy formulation.

Scholars might turn to 'The Failure of Citizens’ Initiated Referenda Proposals in Australia: New Directions for Popular Participation?' by George Williams and Geraldine Chin in (2000) 35(1) Australian Journal of Political Science 27–48

Royal Commissions

The Royal Commissions Amendment Bill 2013 (Cth) to amend the Royal Commissions Act 1902 (Cth) has passed in the lower house.

The expectation is that the amended Act will facilitate the Royal Commission into Institutional Responses to Child Sexual Abuse but and will apply to all future Commonwealth royal commissions.

The Explanatory Memo indicates that

Where a Royal Commission is constituted by more than one Commissioner, the Act currently allows evidence to be taken on oath or affirmation at a hearing by all the Commissioners or by a quorum. The first main purpose of the Bill, to apply to multi-member Royal Commissions, is to enable the President or Chair to authorise one or more members to hold a hearing. The proposed amendment will allow for efficient distribution of work between Commissioners where it is appropriate to do so.

People who want to give evidence will be able to do so in a less formal setting, with scope to go before a private hearing, not swear an oath or affirmation, but receive the same protections as those giving evidence at formal hearings. The amendments also strengthen confidentiality measures surrounding information given in a private session.

The Memo indicates that the amendments will

facilitate persons directly or indirectly affected by child sexual abuse and related matters in institutional contexts to present their account to a Commissioner in a setting that is less formal than a hearing. The Bill refers to this type of hearing as a `private session'. The Letters Patent recognise that it is important that persons affected by child sexual abuse and related matters in institutional contexts can share their experiences in appropriate ways recognising that many participants will be severely traumatised or will have special support needs. Private sessions would also allow Commissioners the opportunity to better understand the context and circumstances of child sexual abuse. The proposed amendments will permit the Chair Commissioner to authorise members of the Commission to hold private sessions. The amendments will apply similar protection to participants who give information as would apply to a person giving evidence at a formal hearing. The information will not be taken on oath or affirmation and the sessions will be conducted in private and information that is received and used in a report of the Royal Commission will not identify individuals.

In discussing privacy protection the Memo states that

The Bill will promote the right to privacy by enabling persons who wish to give information to the Royal Commission into Institutional Responses to Child Sexual Abuse to do so voluntarily in a private session that will not be open to the public. This is considered appropriate given the deeply personal and distressing nature of people's experiences of child sexual abuse. The purpose of receiving the information is to assist the lawful purposes of the Royal Commission's inquiry. Information relating to a natural person could only be used in a report of the Royal Commission if the information is also given as evidence to the Commission or under a summons, requirement or notice under section 2 (proposed paragraph 6OD(3)(a)) or if it is de-identified (proposed paragraph 6OD(3)(b)).

Article 19(2) of the International Convention on Civil & Political Rights provides that everyone shall have the right to freedom of expression and that this right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. This right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary on limited grounds, including for the respect of the rights or reputations of others.

The Bill will limit Article 19 by restricting who may attend private sessions and limiting the use and disclosure of information obtained at a private session. An amendment is proposed to make it an offence to use or disclose information obtained at a private session which is subject to exceptions including where the use or disclosure is for the purposes of performing functions or duties or exercising powers in relation to the Royal Commission .... or where the information is de-identified when used in a report of the Commission. These amendments are considered appropriate given the deeply personal and distressing nature of people's experiences of child sexual abuse. The offence will serve to protect the privacy of participants. As the information obtained at a private session will not be given on oath or affirmation these measures will also serve to protect the reputations of other people.

The fair trial and fair hearing rights contained in article 14 of the ICCPR are not engaged by the amendments. A Royal Commission is not a court or tribunal and cannot adjudicate on a person's guilt or liability. A Royal Commission may report and make recommendations on matters into which it is inquiring.

The Memo states that

Participation at a private session will be voluntary. The Commission would not use compulsory powers at these sessions to require attendance, an answer to an inquiry or production of documents. Information received at a private session would not be taken on oath or affirmation. For these reasons, proposed subsections 6OC(1) and 6OC(2) provide that a person who appears at a private session is not a witness and does not give evidence to the Commission and makes clear that a private session is not a hearing of the Commission. The purpose of proposed subsection 6OC(3) is to ensure that certain powers available to the Royal Commission will apply to information or a document received at a private session. This includes powers under section 6F of the Act to inspect, copy and retain documents that may be voluntarily provided at a private session, and under section 6P of the Act to communicate information to certain office holders, including the Commissioner of a police force.

The Bill reflects restrictions on access under the Freedom of Information Act 1982 (Cth). Personal information in private sessions will not be accessible under that Act. The Bill provides for restrictions on public access to archived Commission records containing information obtained at a private session, with those

containing information obtained at a private session to be treated in the same way as census information so that these records would come into the open access period under the Archives Act 1983 99 years after the year the record came into existence.

Consumer Contracts

The UK Law Commission has released its advice paper on Unfair Terms in Consumer Contracts [PDF], updating its 2005 joint report with the Scottish Law Commission on Unfair Terms. The 2005 document recommended a single harmonised regime to replace both the Unfair Contract Terms Act 1977 (UCTA)and the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) , the latter giving effect to the Unfair Terms Directive 1993 (UTD, ie Council Directive 93/13/EEC of 5 April 1993, OJ 1993 L 95).

The Commission comments that

For many years, the law on unfair contract terms has been criticised for its complexity. It is set out in two separate pieces of legislation:  The [UCTA] focuses on exclusion clauses. It applies to a broad range of contracts, including those made between businesses and between businesses and consumers.  The [UTCCR] apply only to contracts between businesses and consumers, but cover a greater variety of non-negotiated terms. Terms may be challenged not only by consumers but by 12 designated enforcement bodies.

In its March 2013 update, based on consultation in 2012, the Commission states that

The UTD is a minimum harmonisation measure, which means that the UK may provide more protection to consumers than is required by the Directive, but may not provide less protection. Where it has been necessary to depart from the words of the Directive, we have ensured consumer rights are not reduced.

The current law (Part 2)

The UTD exempts certain contract terms from review, provided that they are “in plain intelligible language”. Article 4(2) states that a fairness assessment may not relate to “the definition of the subject mater of the contract” or “the adequacy of the price and remuneration…as against the services or goods supplied in exchange”. These words have been copied out into the implementing regulations and are now in Regulation 6(2) of the UTCCR.

The exemption has proved particularly difficult to interpret. It has generated complex litigation, culminating in the 2009 Supreme Court decision, Office of Fair Trading v Abbey National plc [2009] UKSC 6, [2010] 1 AC 696. This was a test case against seven banks and a building society. The issue was whether charges for unauthorised overdrafts were exempt from an assessment for fairness because they were price terms.

The High Court and Court of Appeal found that the terms were not exempt, because they were not part of the essential bargain between the parties, and a typical consumer would not recognise the charges as part of the price. By contrast, the Supreme Court said that overdraft charges were exempt. It rejected the idea that price terms could be divided into those which formed the essential bargain and those which were ancillary. It said that the price should be determined “objectively”, rather than from the viewpoint of a typical consumer. The judgment has proved difficult to interpret, with regulators and businesses expressing different views.

The case for reform (Part 2)

In the Issues Paper we asked whether the law in this area was unduly uncertain. A large majority of consultees agreed that it was. Consumer groups and enforcement bodies felt that this undermined the effectiveness of the legislation:

It is virtually impossible for consumers to apply the rules confidently. [Which?]

Any law that is so complex and could lead to such great delays through judicial interpretation does not meet a fitness for purpose test for consumer protection legislation. [Trading Standards Institute]

The Supreme Court decision has led us to be very cautious in our assessment of unfair terms [Civil Aviation Authority]

Only a small minority of consultees thought that the law was certain. HSBC commented:

The Supreme Court's decision was clear that, in relation to price terms, “any monetary price or remuneration payable under the contract” would naturally fall within the exemption.

We think that the words of the judgment may be lulling some businesses into a false sense of security. There are other ways to interpret the judgment – and it could be overturned by the Court of Justice of the European Union (CJEU). The German Federal Supreme Court takes a different view on the UTD and has reviewed ancillary bank charges for fairness.

In a world of price comparison websites, there is increasing pressure on traders to advertise low headline prices, whilst earning their profits through other charges. Given this potential undermining of competition, the law should provide effective tools to prevent abuse.

The current uncertainty has the potential to damage businesses as well as consumers. If a business uses an ancillary price term to subsidise a low headline price, the business is put at risk if the term is later found to be unfair. It faces the substantial costs of litigation; the reputational damage to its business; the cost of repaying consumers; and the demise of its business model.

We recommend that the exemption for subject matter and price should be reformed. The current law is unacceptably uncertain. It requires significant legal expertise to navigate, and even then the outcome is unpredictable. Both consumers and traders may suffer from this uncertainty.

The need to protect against small print (Part 3)

We think that the exemption should distinguish between terms which are subject to competition and those which are buried in “small print”. Where consumers know about the terms proffered by traders, they are able to take them into account in their choices: the law should not seek to protect consumers from the consequences of their own decisions.

By contrast, consumers rarely read “small print”. “Small print” is a concept instantly understood by consumers in their daily lives. It is not just about font size. It is also marked by poor layout, densely phrased paragraphs and legal jargon. Often simply labelling a hyper-link as “terms and conditions” is sufficient to ensure that most consumers do not read the document. We think that all small print terms should be assessable for fairness.

A new approach based on transparency and prominence (Part 3 and 4)

The 2005 Report proposed that the exemption should not apply to payments which are “incidental or ancillary to the main purpose of the contract”. In Abbey National this test was considered too uncertain.  We now recommend that price or main subject matter terms should be exempt from review only if they are transparent and prominent. Both approaches distinguish between the terms which consumers take into account in their decision to buy the product and those which become lost in small print. The emphasis on prominence, however, offers a practical way of distinguishing between a headline price and other charges. It also emphasises that whether a term is exempt is within the control of the trader.

We recommend that: (1) “Transparent” should be defined as in plain, intelligible language; readily available; and, if in writing, legible. (2) The test of “prominence” should refer to the “average consumer” test, which is widely used in European consumer law. It refers to a hypothetical consumer who is “reasonably well informed, reasonably observant and circumspect”. A term would be prominent if it is presented in such a way that the average consumer would be aware of the term. The more unusual or onerous the term, the more prominent it needs to be.

All terms of a contract should be transparent. As discussed below, if they are not, enforcement agencies should be able to challenge them. Clearly not all terms can be prominent. Simply because a term is not prominent does not make it unfair; nor does it raise a presumption that it is unfair. It could, however, be assessed for fairness.

Consultees’ views

More than half of those responding agreed that a price term should be excluded from review, but only if it is transparent and prominent. Support came from all categories of consultee: businesses and business groups; consumer groups; public bodies; academics; and the judiciary and lawyers.

Transparency and prominence would not only ensure fairness but also further promote competition. [Direct Line Group]

Prominence of the price is key to ensure that consumers know what they are getting for their money [MoneySavingExpert.com]

Traders can be expected to welcome the degree of control which they would have over the application of the exemption. [Malcolm Waters QC]

Only two consultees disagreed with the tests in their entirety. Several businesses had concerns, however, particularly about how they would work in practice. We think that many of these concerns can be met by guidance from regulators.

Some regulators and consumer groups argued that prominence and transparency alone may not always be sufficient. Relying on the insights of behavioural economics, they said that consumers may ignore remote or contingent charges, even if they are prominent. We note that the Directive already makes provisions for behavioural biases in the annex or “grey list” of terms which may be regarded as unfair. We think it is helpful to clarify that grey list terms cannot fall within the exemption. Excluded term or excluded assessment?

One particular difficulty in understanding the exemption is whether it excludes the whole term (the excluded term construction) or only an aspect of the term (the excluded assessment construction).

The case law suggests that the courts may consider some aspects of price terms, such as their timing or calculation. It is only the amount (or “adequacy”) of the price which cannot be assessed for fairness. In Foxtons v O’Reardon [2011] EWHC 2946 (QB), for example, the term concerned the payment of the estate agent’s commission, which was due on exchange of contracts rather than on completion of the sale. Although this was a price term, the court was able to consider the timing of the payment, as this did not involve an assessment of “the adequacy of the price”.

In the Issues Paper we argued that it would be simpler to concentrate on the term. Following consultation we have been persuaded that this would underimplement the Directive. To ensure that the UK meets its minimum harmonisation obligation, we recommend that the legislation should follow the approach of the Directive in stating that it is only the amount of the price which is excluded from review. Other aspects of price terms, such as timing, may be assessed for fairness.

By contrast, we think that the exemption for main subject matter applies to all aspects of the term. Thus if the term specifies the main subject matter, the court may not consider its fairness at all. We considered, but rejected, the idea that a court could assess the fairness of any aspect of the main subject matter, provided that it did not consider how the main subject matter had been defined.

Suggested redraft

Although the wording will be a matter for Parliamentary Counsel, we conclude that the exemption should be redrafted along the following lines: No assessment of fairness shall be made- (a) of a term which specifies the main subject matter of the contract; or (b) of the amount of the price, as against the goods or services supplied in exchange, provided that the term in question is transparent and prominent.

Guidance

It is important that the practicalities of making price charges prominent should fit in with other regulations, particularly for financial services, utilities or mobile phone contracts. We recommend that regulators should publish sector-specific guidance on the meaning of “transparent and prominent” to assist businesses. 

The Grey List

Schedule 2 of the UTCCR contains an indicative and non-exhaustive list of terms which may be regarded as unfair (the grey list). It reproduces word for word the Annex to the UTD. We recommend that the legislation should specifically state that all terms on the grey list are assessable for fairness.

Following consultation we have been persuaded that the grey list should be retained in its current form with some limited additions. We recommend three additions to the grey list. These are terms which have the object or effect of: (1) permitting the trader to claim disproportionately high sums in compensation or for services which have not been supplied, where the consumer has attempted to cancel the contract; (2) giving the trader discretion to decide the amount of the price after the consumer has become bound by the contract; and (3) giving the trader discretion to decide the subject matter of the contract after the consumer has become bound by it.

Fairness Test

In the Issues Paper we asked whether the UTCCR should be rewritten in more accessible language. We have been persuaded by the strong arguments put to us that the words of the UTD should be changed only if there is a good reason to do so. We therefore recommend that the fairness test set out in articles 3(1) and 4(1) of the UTD should be replicated in the new legislation.

The Need for Transparency

Article 5 of the UTD states that written contracts “must always be drafted in plain intelligible language”. Recital 20 expands this concept to say that “the consumer should actually be given an opportunity to examine all the terms”. We have concluded that article 5 goes beyond the words used, and also requires that terms are legible and readily available. We therefore recommend that the legislation should require terms to be “transparent”, which incorporates all three concepts.

Article 5 does not spell out the consequences of failing to make a term transparent. We do not think that non-transparent terms are automatically unfair, though it is an important factor to consider. Under the Consumer Injunctions Directive, however, enforcement bodies must have the power to prevent their use. We recommend that the legislation should clarify that enforcement bodies may use their powers under Part 8 of the Enterprise Act 2002 against terms which are not transparent.

Terms of no effect

An aim of this project is to bring all unfair term provisions affecting business to consumer contracts together. Therefore, we recommend that the new legislation should replicate the substance of the provisions of UCTA concerning terms and notices which purport to exclude or restrict traders’ liability for causing death or personal injury. Such terms should always be considered unfair.

End user licence agreements and notices

Many end user licence agreements do not have the status of contract terms, yet they often contain exclusion clauses. The clauses are usually unenforceable but may still have a damaging effect by discouraging consumers from claiming their rights. As the UTCCR only apply to contract terms, enforcement bodies cannot take action against clauses which do not have contractual status.

By contrast, UCTA protects consumers against exclusion clauses, whether they are contract terms or mere notices. We recommend that the new legislation should cover notices which exclude a trader’s liability to a consumer. Where they are unfair, enforcement bodies would have powers to bring actions against them.

Terms which reflect existing law

The UTD exempts terms from review if they merely reflect the existing law. Article 1(2) of the UTD refers to “mandatory statutory or regulatory provisions” but Recital 13 explains that this covers “rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established”. We recommend that the new legislation should reflect the words of Recital 13.

Negotiated terms

UCTA applies to all consumer contracts, whether or not they are negotiated. By contrast, negotiated terms are exempt under the UTCCR, though negotiated terms are defined narrowly.

We recommend that the new legislation should follow UCTA and apply to negotiated terms. This will affect very few cases. As Which? point out, in practice the vast majority of negotiated terms fall within the exemption for main subject matter or price. Where terms about other issues are genuinely negotiated, they are unlikely to be found unfair. On the other hand, the current exemption for negotiated terms in the UTCCR encourages unnecessary argument and litigation. The legislation will be simpler and more easily enforced if the distinction between standard terms and negotiated terms is removed.

The burden of showing that a term is fair

The CJEU recognises that few consumers have the legal expertise to prove that a term is unfair. It has therefore stressed that national courts must consider the fairness of terms on their own motion. We recommend that the new legislation should reflect this case law explicitly, so that the courts are aware of their duty.

We do not think that it is necessary to make any other statements about the burden of proof. In practice, issues about the burden of proof are unlike to arise.

Definition of a consumer

We recommend that the definition of a consumer should be consistent across the new consumer legislation being considered by BIS. The new definition is likely to be narrower than the definition of “dealing as a consumer” in UCTA, but the loss of protection for businesses will be negligible. A consistent definition will introduce much needed simplification.

Remaining role of UCTA

The new provisions on unfair terms would only affect contracts made between businesses and consumers. UCTA is wider. It applies to contracts made between businesses, between businesses and consumers, employment contracts and even, to some extent, “private contracts” where neither party is a business.

We have considered the effect of a reformed UCTA on employment and private contracts as well as businesses dealing as consumers. We think that all references to “dealing as a consumer” should be removed from UCTA. We also invite BIS to consider whether an opportunity can be found to consolidate the law on private sale contracts.

Public-Private Investigation

Big Brother Watch in the UK has released a report [PDF] on Private Investigators: The use of private investigators by councils, public authorities and government departments in the United Kingdom. It comments that

The Protection of Freedoms Act 2012 introduced important safeguards in the use of surveillance powers by local authorities. The requirement of prior judicial authorisation is an important change in the law and one we wholeheartedly support.

However, as this report highlights, the scope of public surveillance using private investigators risks undermining these protections. Of particular concern is the number of cases where private investigators have been commissioned, yet their work deemed to not require RIPA authorisation, even in cases where the explanation provided appears to indicate surveillance was undertaken.

The law in the UK, particularly the Police and Criminal Evidence Act 1984, is broadly drawn to allow evidence to be introduced in court that in other jurisdictions would not be deemed admissible. Contrasted with the fruit of the poisonous tree provisions in the US, and broader protection offered by the Fourth Amendment, UK law risks failing to join up the evidential admissibility process and the regulation of surveillance. Accordingly, we are seriously concerned there is a gap in UK law emerging around surveillance and the ability of third parties to conduct surveillance operations without proper regulation.

As the cost of advanced surveillance technologies falls, the temptation is for a number of individuals and organisations to take advantage of the covert cameras, hidden recording devices, aerial devices and countless other gadgets that are now available in a growing market. While there are many situations where regulation is not appropriate, it is also essential to maintain legal safeguards to deter the unaccountable and improper use of such technologies. Equally, as is the risk with private investigators, the arrangement may allow techniques to be used that would require RIPA authorisation, but because they are conducted by a third party, the commissioning organisation can claim it was unaware of the specific methods employed. Whether private investigators, individual citizens or unconnected third party organisations, we believe that the law should be revised to ensure that if surveillance is undertaken and the intention is to use the material obtained in legal proceedings, if it has not been undertaken by the police then it should not be admissible if it has not been authorised under RIPA.

Equally, the ongoing lack of custodial sentences for those guilty of an offence under section 55 of the Data Protection Act 1998 remains a serious issue and particularly where private investigators may be gathering information that they are not authorised to do so. With as many as 10,000 people working as private investigators in the UK, we agree with the Home Affairs Select Committee that the current legal framework is wholly inadequate. This highlights the ongoing concern that RIPA is not fit for purpose, in failing to deal with evidence and material obtained outside the legislative framework. Equally, the changing nature of surveillance – particularly the ability to search online, through social networks and through semi-public sources of information – further reinforces the need for the law to be reformed to strengthen protection against unwarranted and unauthorised surveillance becoming a frequent occurrence.

Key Findings for the two financial years 2010-11 and 2011-12 are -

• The total amount spent on commissioning external organisations to undertake surveillance is £3,932,804.
• 29 organisations (27 councils, 1 public authorities, 1 government department) commissioned external organisations to undertake surveillance under the provision of RIPA 
• 14 organisations (10 councils, 4 public authorities) commissioned external organisations to undertake surveillance not under the provision of RIPA 
• 4 organisations (2 councils, 2 public authorities) commissioned other public bodies to undertake surveillance at a cost of £7,6001 
• 4 councils (Caerphilly, Dudley, Leicestershire, York) used private investigators to monitor their own staff 
• The Department for Transport was the only government department to commission external organisations to undertake surveillance under the provision of RIPA, using G4S and Outforce Corporate Investigation Ltd on 3 occasions at a cost of £53,075.
• The Marine Management Organisation commissioned Direct Flight to conduct surveillance without the provision of RIPA on 1 occasion at a cost of £3,211,550.
• Stafford Borough Council commissioned external organisations to undertake surveillance under the provision of RIPA on 1 occasion at a cost of £142,140.
• Hammersmith and Fulham Council commissioned external organisations to undertake surveillance under the provision of RIPA on 2 occasions at a cost of £136,337.  The operation was carried out over a period spanning more than 12 months 

Recommendations are

1 The Regulation of Investigatory Powers Act 2000 is in fundamental need of reform to protect against unauthorised surveillance Whether acquiring data through social media websites or the use of private investigators undertaking surveillance without appropriate supervision and authorisation, this piece of legislation is in urgent need of fundamental review and reform. As the Joint Committee on the draft Communications Data Bill warned, the “language of RIPA is out of date and should not be used as the basis of new legislation.”

2 The Police and Criminal Evidence Act 1984 should be strengthened to deter unauthorised surveillance by raising the bar about what evidence can be used in legal proceedings To ensure evidence obtained with the intent of being used in a prosecution or civil claim is only obtained with proper authorisation, the law allowing ‘tarnished’ evidence to be introduced into court should be strengthened, with a clearer threshold ensuring that there is a strong protection against unauthorised surveillance.

3 Provision for private investigator licensing should be strengthened We wholly agree with the Home Affairs Committee that all private investigators should be licensed or registered. We believe that this should include provision for an offence to be committed if an investigator undertakes activities on behalf of a third party without appropriate legal authorisation under RIPA or other relevant statutes. The Association of British Investigators have argued that it should be a criminal offence to engage an investigator who is not licensed, and we would agree with this provision.

4 A duty to regulate contracted investigators should be introduced In order to address the potential conduct of investigators that should fall under RIPA, we believe a new offence should be introduced to allow corporate-level sanctions against an organisation who commission surveillance and in the course of that surveillance activities which should fall under RIPA is carried out without appropriate authorisation. Such corporate liability would mirror the Information Commissioner’s power to pursue action against organisations for failure to adhere to the Data Protection Act 1998.

5 Custodial sentences should be enacted for Section 55 of the Data Protection Act. We have previously called for the provisions of section 77 of the Criminal Justice and Immigration Act 2008 to be enacted, which would allow custodial sentences to be handed down to those found guilty of an offence under s55 of the Data Protection Act 1998, which covers the unlawful obtaining of personal data. Where information is collected by individuals, private investigators or otherwise, without proper legal authority we feel it is essential that they can be punished with a custodial sentence.

Discovery

The International Organization for Standardization (ISO) is reported to be setting up an 'e-discovery committee' to develop standards for e-discovery procedures. Establishment of the committee has some support from the United States, UK, Italy, Japan and South Africa.

The expectation appears to be that the standard “would provide guidance on measures, spanning from initial creation ... through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue”. The proposed standard would leverage ISO 9001, concerned with quality management practices. ISO 9001 defines minimum requirements for an enterprise’s Quality Management System and is supposedly used by more than 1 million businesses in over 180 countries.

Proponents of the standard - which might go beyond an agreement to disagree - conceptualise e-discovery as an engineering issue susceptible to standardisation. Critics have unsurprisingly indicated that standardisation is misplaced, given jurisdictional differences, technological changes  and different litigation requirements.

A draft report would apparently be submitted in July this year, followed by a comment period beginning in August.

Coroners

The Australian Inquest Alliance (30 coronial advocates, researchers, academics and policy/law-reform workers from across Australia) has released the 83 page report Saving lives by joining up justice: why Australia needs coronial reform and how to achieve it [PDF] under the auspices of the Federation of Community Legal Centres.

The Alliance's Australian Coronial Reform Project  has two main aims: reform of Australia’s coronial system, and establishment of a National Inquest Clearing House.

We need coronial reform across Australia so that all states and territories have independent and effective coronial systems that learn from past deaths in order to prevent future avoidable deaths. System responses must also effectively address social justice issues if they arise from particular deaths. Coronial reform should include consistent best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response. We also need to establish a National Inquest Clearing House to facilitate effective coronial systems and enhance the participation of families. 

Part 1 of the report outline a case for national coronial reform-

The coronial system has a distinctive place in Australian legal practice. Coroners investigate certain types of deaths, such as those that are sudden, unexpected or violent. In some cases, the coroner also presides over an inquest, which is a court hearing that is usually public. Coroners are required to discover the truth about a death - generally, who the deceased was, how they died, and the circumstances of their death. This process means investigating not only the immediate but also the underlying causes of death. Coronial investigations and inquests are formally inquisitorial (truth-seeking) rather than adversarial (against someone), and are not bound by the rules of evidence and procedure in other courts. Instead, coroners take a broad public health approach, which means that in a best practice investigation the focus is on drawing any relevant systemic lessons from the death in order to try to prevent, or at least minimise the chances of, similar deaths occurring in the future. Systemic issues can arise from contexts as diverse as those involving faulty products, medically related deaths, industrial accidents, the treatment of persons in custody and care, or the way that governments respond to family violence. Coronial investigations therefore often also have social justice implications. Families seeking some comfort from investigations and inquests, along with advocates working to oppose systemic injustices, expect comprehensive coronial findings and appropriately targeted recommendations as the key to preventing similar deaths in the future.

Each Australian state and territory has its own coronial legislation, court and office support. As a result, the official procedures for inquiring into a death, following up on any systemic issues, and providing information to families and the general public can differ between jurisdictions. When it comes to providing publicly accessible, clear and thorough information about the outcomes of coronial investigations and inquests, there is also considerable variation across states and territories. In some jurisdictions, information is simply not available. Under-resourcing of Coroners Courts and Offices also hampers their ability to provide public information and to cooperate with external researchers and advocates. While the National Coronial Information System is a very valuable tool, it is only automatically accessible to coroners, and other potential users must seek approval to use it and in most cases pay a significant fee.

Nevertheless, in all state and territory jurisdictions, procedures and standards for coronial investigations and inquests are required to adhere to Australia’s international treaty obligations to respect, protect and fulfil the human right to life. Best practice approaches to inquests that have been developed in the last few decades therefore focus on the goals of truth, fairness, accountability, healing and an increased emphasis on prevention. Best practice consequently also requires independent inquiry into system failure and identification of any institutional responsibility and systemic issues to be backed up by appropriately directed practical recommendations to prevent future deaths. In reality, however, many families who have lost loved ones experience the coronial process and its aftermath as traumatic, mystifying, frustrating and disempowering. The human rights standard that coronial investigations be independent is also not usually adhered to when police are potentially implicated in a death. Another common source of anguish for family members concerns the considerable time that can elapse between when a death is first discovered and when coroner’s findings are made. Delays of up to five years are not uncommon, and in 2011–12, no state or territory reached the national standard for acceptable backlog of cases. Many other difficulties experienced by families are due to a general failure across jurisdictions to fully implement into practice the right of families to participate in coronial processes concerning their loved ones.

The content of coronial recommendations and their potential influence on death prevention are of particular concern to family members and advocates. Although there have been recent reforms in several states and territories, the emphasis on prevention and on the role of coronial recommendations varies considerably. Coroners also often have little assistance to help them formulate their findings and recommendations.

Families and advocates also need to know what responses have been made by government departments and other agencies to coronial recommendations addressed to them, together with information about how recommendations are being implemented, and how implementation will be monitored to ensure that avoidable deaths are prevented in the future. However, most states and territories do not legally require responses to all coronial recommendations in their jurisdiction, meaning that particular recommendations may never be followed up, and can even be lost. In most jurisdictions it is also difficult to find public information about whether recommendations are responded to, and in what manner.

Due to a lack of monitoring and little in the way of collection of information about implementation, it is difficult to assess the impact of coronial recommendations upon the prevention of deaths in Australia, either generally or in relation to any particular kind of death. Jurisdictions that mandate responses to recommendations are likely to have a better rate of implementation. However, in general, implementation of recommendations is an ad hoc process. Whether or not particular recommendations are implemented is influenced by the way in which recommendations are framed and targeted by coroners, whether implementation accords with government policies and priorities, and whether a proactive system for review of recommendations exists within the targeted organisation. Other relevant factors include media, family, community and advocacy group pressure.

Coroners may therefore make potentially life-saving recommendations, only for them never to be responded to or implemented, with no follow-up and no public awareness of what has happened. Within any particular jurisdiction, even where recommendations are implemented, this may not happen in time to prevent other similar deaths. The present patchwork system also means that even though coroners may be sharing information across Australia, government and other agencies in one jurisdiction are unlikely to learn effectively and in a timely way from a death, or even a pattern of deaths, in another jurisdiction. This is evident even in contexts where there are clear national ramifications, such as deaths in custody. For this reason, the Royal Commission into Aboriginal Deaths in Custody recommended reform of the state and territory coronial systems. However, over 20 years later, none of the Royal Commission’s recommendations have been implemented in a systematic, nationwide manner. The piecemeal approach to death prevention means that there are other striking examples where lessons have failed to be learned across and even within jurisdictions, resulting in more avoidable deaths. The systemic failure that led to the death is often perpetuated due to an inability of governments and other entities to respond effectively. One tragic illustration is the example of blind cord deaths, where infants are accidentally strangled or hanged due to becoming entangled in a blind or curtain cord. Despite the risks having been raised by coroners and researchers for many years, infants have continued to die, and even now it is unclear whether all states and territories have implemented ongoing community campaigns and strategies to render safe those blinds and curtains that are already installed. Blind cord deaths therefore starkly demonstrate the lack of clear recommendation and implementation pathways across states and territories, together with, in most jurisdictions, few if any mechanisms to monitor the progress of recommendations, and consequently little in the way of public accountability.

This report makes recommendations aimed at ‘joining up’ independent and effective coronial systems across Australian jurisdictions, in order to enhance death prevention via learning from past deaths.

While there are some limited opportunities to contribute to joining up justice at the state and territory level, State, Territory and Commonwealth Governments are increasingly recognising that in order to more effectively and consistently address many legal and social issues in Australia, a federally coordinated, cross-border approach of some kind is needed. We discuss the examples of national initiatives to better prevent and respond to violence against women and children, the coronial recommendations and Federal Government response concerning the death of Dianne Brimble, and proposals to centrally record coronial recommendations and share information across states and territories concerning family/domestic violence homicides.

Greater emphasis on prevention must be accompanied by best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response.

Part 2  discusses how families need legal representation and other support in order to be able to exercise their human rights to fully participate in the inquest.

legal assistance is often not affordable, and appropriate support is not always available. Within the limits of accessible public information, we paint a picture of the legal assistance currently available for families, and describe the role of various public legal service providers. The reality for many families is that they may not even be aware that they have the right to a lawyer, let alone be able to obtain legal help throughout the process. We therefore make recommendations that aim to ensure equity in legal assistance for families in the inquest process and coronial-related matters.

Public interest organisations also play an important role in supporting and advocating on behalf of families, or raising prevention issues as interveners, yet their involvement is often limited by lack of resources. The Paper therefore goes on to outline why a new national non-government organisation - a National Inquest Clearing House (NICH) - is needed to consolidate and share the knowledge and understanding gained by legal assistance providers over many years. In playing this ‘joining up’ role, the NICH will both enhance inquest representation for families and community organisations, and improve the coronial process by consolidating and sharing knowledge in order to focus on prevention of avoidable deaths.

We hope that stakeholders will work with us in developing and advocating for the directions and strategies we should use to support ‘joined up’ independent and effective coronial systems across Australian jurisdictions - systems which facilitate learning from past deaths in order to prevent future avoidable deaths, and which provide enhanced support for families at all stages of the coronial process.

The Alliance makes several recommendations -

1. All State and Territory governments should act to adopt core best practice and guarantee that the preservation of life is central to their coronial systems, by introducing, as appropriate to the jurisdiction, prevention and reporting amendments to their coronial legislation. These amendments should include or have the effect of:  a preamble that expresses the role of the coronial system as involving the independent investigation of deaths, for the purpose of finding the causes of those deaths and to contribute to the prevention of avoidable deaths and the promotion of public health and safety and the administration of justice, across Australia; purpose and objects provisions that include the prevention of avoidable deaths through the findings of the investigation, and the making of findings, comments and recommendations, by coroners; a provision empowering coroners to make comments and recommendations on any matter connected with a death investigated at an inquest, including public health or safety and the administration of justice; and a provision empowering coroners to make recommendations to any Minister, public statutory authority or entity.

2. The Commonwealth Government should work with State and Territory governments to achieve a uniform national coronial public reporting and review scheme for coronial findings and recommendations which:  guarantees that all coronial recommendations will be considered and meaningfully responded to by the government agencies or entities to whom they are directed (updates on progress towards implementation should be provided by the relevant agency or entity where the initial response was only a holding response);  provides ready public access to all coronial findings, recommendations, responses and updates;  records and makes publicly available (including via a Coroners Annual Report to the relevant State or Territory Parliament and on the Internet) whether or not coronial recommendations have been implemented by responsible government agencies or entities;  enables evaluation of the impact of coronial recommendations upon the prevention of deaths;  adheres to timeliness at every step of the recommendations process; and · provides feedback to families (including a copy of recommendations and responses to families, other parties and legal representatives) at every step of the recommendations process.

3. As an important element of Recommendation 2, State and Territory Governments should:  appoint coronial liaison officers to enable public sector agencies to respond to coronial recommendations in a timely and appropriate manner; and  allocate, for each jurisdiction, the responsibility for monitoring the implementation of coronial recommendations to an independent statutory body adequately resourced for the task and with powers to alert government and public about any key implementation issues.

4. The Commonwealth Government should work with State and Territory governments to enable each jurisdiction to effectively recognise the international human rights obligation to respect, protect and fulfil the right to life by introducing, as appropriate, amendments to their coronial legislation so that coronial investigation is independent, appropriately and adequately resourced, and considers systemic issues. In particular, in investigations into deaths in police custody or in the course of police operations, the agency conducting the primary investigation at the direction of the Coroner must have practical, institutional and hierarchical independence from the police.

5. Primary and secondary coronial legislation in the various jurisdictions should be amended or introduced in recognition of the principle that participation of families in the inquest process is a fundamental component of Australia's international human rights obligations. Specifically, reforms must enable families and friends of the deceased to experience the coronial process in as sensitive, timely and fully informed a manner as possible, regardless of the circumstances of the death. These reforms must include:  provision of proper and timely notification of family members and proactive provision of accessible, timely and explanatory information, at every stage of investigation and inquest processes. This should include as comprehensive as possible access to police and coronial documents, and accessible material on families’ legal rights;  no unreasonable delays in investigations and inquests; resolution of any cultural or spiritual conflicts raised by the coronial process;  recognition of the need to have Aboriginal and Torres Strait Islander legal and health services and communities involved in the coronial process; and provision of quality, accessible, and culturally and spiritually appropriate support and counselling services for families.

6. All States and Territories should establish or continue funding for their own Coroners Prevention Unit similar to the current Victorian model, including funding to facilitate an effective role for the Unit in the reforms in Recommendations 1-5.

7. State and Territory Governments should adequately fund their Coroners Courts with the aim of reducing delays in inquests, investigations and the delivery of findings, in order to at least conform to current national standards.

8. The remaining recommendations of the National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) must be implemented.

9. As a fundamental component of Australia's international human rights obligations under the right to life, funding and availability of legal assistance providers must be sufficient to enable all families to obtain, without financial hardship, effective legal advice and representation for investigations and inquests, at a level that is consistent with the level of legal representation accorded to government and other institutional parties in the inquest. A specific pool of funds should be made available to enable community legal centres to provide legal representation for families at inquests.

10. Legal assistance services must be sufficient to enable all advocacy organisations with a sufficient interest to intervene in inquests, as a fundamental component of Australia's international human rights obligations under the right to life.

11. An independent National Inquest Clearing House, along the lines of INQUEST (UK), should be established and adequately funded.

Guignol

More than a dash of the gothicks in The Queen v Nelson [2013] VSC 72 -

Having so armed yourself with the Luger pistol and ammunition, you attempted to ascertain the whereabouts of Gregory Nelson. You first called one of your sisters, then spoke to one of your brothers-in-law, then searched on-line, then combed the White Pages telephone directory and, ultimately, made a number of telephone calls in an endeavour to find him. But those efforts were to no avail. 

Not to be denied a target, however, you then set out to ascertain the whereabouts of the deceased and, having located his address in the White Pages telephone directory, you drove immediately to his home. Along the way, you stopped and purchased a Melways street directory to guide you to the property. 

You arrived at the deceased’s home at 8.15pm and he answered the front door to you. Although surprised to see you, he bid you inside and introduced you to his wife. You engaged in pleasantries and inconsequential conversation for a while and then made to leave. As you stood up to go, you induced him to step outside with you by asking him to inspect some minor panel damage to your car. Then, as he stood in the road in front of the car with his wife nearby, you reached in through the driver’s door, took out the Luger pistol and emptied three rounds into him at very close range. As you did so, you said: ‘This will teach you, you bastard, for everything you’ve done’. 

The deceased collapsed on the road, as his wife stood by screaming, and you drove off in your car. The deceased’s neighbours came to help and emergency services were called but the deceased could not be revived. Upon later post-mortem examination, it was found that the three bullets which you fired had penetrated his heart, lung, stomach, bowel and kidney, causing acute blood loss and internal organ trauma secondary to multiple gunshot injuries to the chest region from which he had died.

Nettle JA states that

Your murder of the deceased is a grave offence. It was calculated and premeditated and it was committed with a fearsome weapon on an unknowing and unarmed man outside his own home, in a public street in plain sight of his wife. It is an outrage that any man should presume to take it upon himself to act as judge, jury and executioner of another, and still more offensive that such an execution should be carried out in the manner which you effected. It is worse still that a man of your age, experience and maturity, who should know the inestimable value of human life better than most, has offended in that fashion. Whether or not the deceased was a paedophile, and there is no proof that he was, you had absolutely no right or justification for doing what you did. 

The law is jealous to show tolerance to vigilantes and assiduous to deter them. As Winneke P said in Director of Public Prosecutions v Whiteside and Dieber, those who take the law into their own hands and inflict punishment on others whom they suspect of committing offences must expect condign punishment.

The Court concluded

Finally, it is to be noted that, if you had not had a cache firearms in your home, the deceased might still be alive. One may wonder, therefore, why the law allows people like you to keep firearms, especially a semi-automatic pistol, anywhere near at hand. Although you bear ultimate responsibility for the death of Graeme Benney, I regard the present state of firearms control regulation as anything but blameless.

Disability and the Victorian Justice System

The 418 page report [PDF] of the Victorian Parliamentary Inquiry into Access to and interaction with the justice system by people with an intellectual disability, their families and carers recognises that "people with an intellectual disability or cognitive impairment experience a number of significant disadvantages that may increase the likelihood that they will come into contact with the justice system".

The report highlights

• the importance of accurate data to quantify the level of involvement that people with an intellectual disability or cognitive impairment have with the justice system; 
• the link between social and economic disadvantages and potential contact with the justice system; 
• the limited awareness by the community and justice system personnel of common indicators of intellectual disability or cognitive impairment; and 
• the importance of adequate, accessible and effective services and supports for people with an intellectual disability or cognitive impairment, both while in the community and during their transitions through the justice system. 

It concludes that

Common life experiences of people with an intellectual disability or cognitive impairment include: increased dependence on others to complete daily activities; limited education, training and employment opportunities leading to financial constraints or dependence on social welfare; and increased social isolation. The degree to which these disadvantages affect a person varies from person to person and may be ameliorated through the provision of appropriate support.

Data quantifying the involvement of people with an intellectual disability or cognitive impairment in the justice system is not collected in a systematic way. Data from correctional settings suggest that between 1.3 and 2.5% of the prison population may have an intellectual disability, while cognitive impairments such as acquired brain injuries (ABI) may be present in up to 42% of male prisoners and 33% of female prisoners respectively.

Compared to population estimates of the incidence of these impairments, it appears that people with an intellectual disability or cognitive impairment are overrepresented throughout the justice system. The absence of comprehensive data about the involvement of people with an intellectual disability or cognitive impairment in the justice system has consequences for determining what services and supports should be made available. The delivery of services and supports for people with an intellectual disability or cognitive impairment could likely be improved if better data on their interaction with the justice system was available.

Definitions for ‘intellectual disability’ typically emphasise different aspects of intellectual, functional and adaptive abilities that a person exhibits during his or her developmental years. For clinical purposes intelligence quotient testing is frequently used to define intellectual disability, with scores of less than 70 indicating a degree of intellectual disability. In Victoria, the Disability Act 2006 (Vic) adopts similar clinical approaches to defining intellectual disability.

Clinical definitions of intellectual disability are useful for diagnosing the existence of intellectual disability. However, they may be of limited use when considering how the justice system should respond to the needs of a person with an intellectual disability and for determining the capacity of a person to understand and exercise his or her legal rights.

In Victoria a distinction is made between intellectual disability and cognitive impairment when determining what services and supports should be provided under the Disability Act 2006. Cognitive impairment tends to refer to a broader range of impairments than encompassed by definitions of intellectual disability, and typically include impairments that arise during adulthood. It is often the case that people with a cognitive impairment have experienced a more diverse range of lived experiences than people with an intellectual disability.

However, depending on how and when the disability manifested people with an intellectual disability and people with a cognitive impairment may experience similar difficulties when seeking access to and interacting with the justice system. Difficulties with recall, comprehension and expressive language may be experienced by people with either impairment. These difficulties suggest that appropriate measures should be adopted to ensure equitable and effective access to justice both by people with an intellectual disability and by those with a cognitive impairment. The Committee’s recommendations aim to achieve greater parity in services and supports available to people with an intellectual disability and people with a cognitive impairment.

The provision of services and supports to people with an intellectual disability has changed dramatically over time. In the 1970s and 1980s treatment and care was generally moved from custodial settings to community-based support and the provision of specialised services. Now the legislative and policy framework governing the provision of services and supports to people with an intellectual disability encompasses a range of national and Victorian strategic policies, the Disability Act 2006, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and international treaties and conventions. This framework articulates principles and objectives for the delivery of services and supports to all people with a disability.

Disability services are provided by a range of groups and organisations including government departments, community service organisations, advocacy groups, and families and carers. These services can help alleviate the effect of a disability on a person and therefore encourage greater and more effective participation in the community. Access to services provided by the Department of Human Services and community organisations is often inhibited by resource constraints and eligibility criteria. The Committee makes a number of recommendations calling for the Victorian Government to examine the availability of resources for existing services and supports, to ensure that all people with an intellectual disability or cognitive impairment are able to access services as required. The Committee recommends that specialist case management services, drawing upon comparable services available to people with an intellectual disability, be made available to people with a cognitive impairment.

A person with an intellectual disability or cognitive impairment may require the support of a number of different service providers at one time. Consequently, the level of coordination and collaboration between agencies that provide services and supports to clients may be disjointed. The Committee recommends that measures be taken to coordinate the delivery of services to people with an intellectual disability or cognitive impairment. Key measures may include: an outline of available services and supports in the community; clarification of agency roles and responsibilities; and the establishment of guidelines to inform the exchange of information between agencies.

The manner in which people with an intellectual disability or cognitive impairment interact with the police often sets the scene for how a person manoeuvres through the justice system. The Committee heard that improving police officers’ ability to identify people with an intellectual disability or cognitive impairment could substantially improve subsequent interactions of those people with the justice system.

When police do not recognise the presence of an intellectual disability or cognitive impairment, existing service and support mechanisms may not be offered. Currently the Victoria Police Manual defines ‘mental disorder’ widely to encompass mental illness, intellectual disability, ABIs and neurological conditions. Given inherent differences between these conditions, the Committee recommends that the Manual be amended to distinguish between these impairments and provide guidance on common indicators and appropriate responses.

At present police training offers opportunities to enhance disability awareness, but does not differentiate between different disabilities. While acknowledging available training for police officers, the Committee considered there was some need to enhance training in the identification and interaction with people with an intellectual disability or cognitive impairment.

A person identified as having an intellectual disability, ABI, dementia or mental illness is entitled to the support of an independent third person (ITP) during police interviews. The role of the ITP is to ensure that as far as possible the interview proceeds in a way the interviewee understands. The ITP program is funded and delivered by the Office of the Public Advocate. The Committee recommends that the obligation to arrange for an ITP be be reaffirmed in the Victoria Police Manual to ensure that ITPs are present for
interviews where appropriate. Concerns were also expressed about the adequacy and availability of ITPs given the voluntary nature of the ITP role.

Legal language can often be incomprehensible to people with an intellectual disability or cognitive impairment. The Committee heard that more simple and plain English format documents outlining legal rights and processes should be available, to minimise opportunities for a person with an intellectual disability or cognitive impairment to come into inadvertent and adverse contact with the justice system because he or she is unable to access information regarding legal rights and responsibilities. The Committee recommends that the Victorian Government develop a comprehensive community education campaign targeted towards people with an intellectual disability or cognitive impairment, to increase knowledge of legal rights and responsibilities.

A person with an intellectual disability or cognitive impairment may have limited financial means and as such may come to rely on legal services provided through community legal centres and Victoria Legal Aid. The Committee recognises that demand for services provided by community legal centres and Victoria Legal Aid often exceeds their resource capacity and accordingly recommends that the Victorian Government ensure people with an intellectual disability or cognitive impairment are able to access these services when required.

Lawyers interacting with a client with an intellectual disability or cognitive impairment may have difficulty identifying that the client has an impairment. It is important for a lawyer to correctly identify the presence of intellectual disability or cognitive impairment, in order to ensure that instructions are taken in an appropriate manner, and that evidence is presented appropriately in court. The Committee recommends that guidance material outlining indicators of intellectual disability or cognitive impairment, issues prosecuting and defending clients with an intellectual disability or cognitive impairment, appropriate communication techniques, and supports available in the community should be distributed to members of the legal profession. As a further measure to improve lawyer’s interactions with people with an intellectual disability or cognitive impairment, the Committee believes that there is merit in allowing an independent support person, similar to that of an ITP in police interviews, to be present when a lawyer is interacting with a client with an intellectual disability or cognitive impairment.

The Committee heard a number of concerns regarding the operation of the Crimes (Mental Impairment and Unfitness to Stand Trial) Act 1997 (Vic), particularly around the procedures adopted by the courts when examining an accused’s fitness to stand trial. The Committee urges the Victorian Government to consider:

• amending the Act to allow a trial judge, as opposed to a specially appointed jury, to determine an accused’s fitness to stand trial; 

• whether additional considerations should be taken into account by the courts when investigating an accused’s fitness to stand trial, for example, whether an accused can rationally respond to the charges against them or exercise their procedural rights; 

• whether the jurisdictions of the Magistrates’ or Children’s Courts should be expanded to allow these courts to investigate an accused’s fitness to stand trial; and 

• whether deferring fitness investigations could minimise the complexity of and time involved in conducting both an investigation into an accused’s fitness to stand trial and into their criminal responsibility.

The Committee also considered the defence of mental impairment under the Act. Under the Act ‘mental impairment’ is not defined and instead the courts have relied on the common law insanity defence to interpret the statutory defence. It is the Committee’s view, in order to avoid doubt as to the meaning of ‘mental impairment’, that the Act should be amended to include a definition of the term to encompass impairments commonly associated with the insanity defence.

Therapeutic and problem-solving models of justice have been developed to provide a more positive way of addressing offending behaviour and to encourage active participation in the process. While beneficial, access to specialist courts, lists and programs is often limited to particular courts, locations and to particular categories of defendants. The Committee recommends that the Victorian Government examine the feasibility of expanding specialist courts, lists and programs that are currently available in the Magistrates’ Court of Victoria.

When seeking to give evidence in court a person with an intellectual disability or cognitive impairment may feel alienated and isolated from court proceedings due to difficulties understanding the complex court environment. This can result in assumptions being made about the credibility, reliability and competency of a person with an intellectual disability or cognitive impairment to give evidence in court. With appropriate modifications and supports both prior to and during court appearances, a person with an intellectual disability or cognitive impairment may be able to provide better evidence to the court. Further measures to facilitate effective participation in court proceedings may be warranted, given barriers that may be experienced by all people with an intellectual disability or cognitive impairment when interacting with the court. In other jurisdictions, the provision of witness support during court hearings has been beneficial in terms of providing moral support and assistance with understanding questions to and responses from a person with an intellectual disability. The Committee believes the Department of Justice should explore the possibility of establishing a witness intermediary scheme to assist communications with a person with an intellectual disability or cognitive impairment involved in court proceedings.

The Committee recommends that the courts should be more flexible in the management of cases involving a person with an intellectual disability or cognitive impairment. This could include allowing more breaks during hearings, or creating priority listings in cases involving people with these impairments.

When sentencing an offender the courts are guided by sentencing purposes which include the punishment, deterrence, rehabilitation and denunciation of the offender, and the protection of the community. When sentencing an offender with an intellectual disability or cognitive impairment sentencing purposes of deterrence and punishment may be of less relevance given the impact of the disability on moral culpability, and on the offender’s appreciation of the wrongfulness of the offence. The courts have recognised that traditional custodial sentences such as imprisonment may be particularly inappropriate for offenders with an intellectual disability or cognitive impairment. The burden of imprisonment may weigh more heavily upon such an offender given that he or she may lose access to his or her support networks, and may be more vulnerable to victimisation when in custody. A number of alternative custodial and non-custodial sentencing options are available when an offender with an intellectual disability is being sentenced.

Before determining the type of order to be imposed the courts are able to ask either the Department of Human Services or the Department of Justice to produce a pre-sentence report. The report establishes an offender’s suitability for a particular order and whether necessary facilities exist for their management. Evidence expressed concern about delays in the production of pre-sentence reports, and the consequences of this for treatment and management of offenders with an intellectual disability or cognitive impairment. The Committee recommends that Departments ensure pre-sentence reports are not delayed for people with an intellectual disability or cognitive impairment compared to other offenders.

When sentencing an offender with an intellectual disability to a community corrections order, the courts may impose a justice plan condition. The justice plan outlines, among other things, available services that are designed to reduce the likelihood of reoffending. The option to impose a justice plan condition is not available to the courts when sentencing an offender with another kind of cognitive impairment. Given the similarities in disadvantages, challenges and support needs experienced by people with these impairments, benefits may arise if the courts had discretion to impose a justice plan condition for all offenders with a disability.

The report features the following recommendations -

1: That the Department of Justice, with representatives from Victoria Police, the Office of Public Prosecutions, the courts and the Department of Human Services, establish a centralised database for the collection of statistics on people with an intellectual disability or cognitive impairment who have come into contact with the justice system. The database could include information on: the number of offences in Victoria involving people with an intellectual disability or cognitive impairment, either as victims or offenders;  police reports and prosecution rates for such offences; and  prosecution outcomes.

2: That the Victorian Government commission research to measure the incidence of interactions with the justice system and human services by people with an intellectual disability or cognitive impairment, and to identify opportunities to improve service delivery.

3: That the Victorian Government review available accommodation options to ensure that people with an intellectual disability or cognitive impairment are not denied parole solely due to the unavailability of suitable accommodation.

4: That the Victorian Government consider establishing case management services for people with a cognitive impairment who seek access to or are interacting with the justice system. The development of case management services should draw upon services that are currently provided to people with an intellectual disability, but also be reflective of the different support needs of a person with a cognitive impairment. The role of the case manager could include:  providing continuing contact, support and information for the person;acting as a point of liaison for police, lawyers, courts and corrections; and being involved in the development of a support plan encompassing areas of supervision, accommodation and behaviour skills.

5: That the Victorian Government ensure that clients with a disability who seek assistance from disability advocacy services have adequate access to those services.

6: That the Victorian Government consider establishing a steering committee for the purpose of coordinating Government agencies involved in the care and support of people with an intellectual disability or cognitive impairment who are involved in the justice system. The steering committee should be comprised of senior departmental staff, and report regularly to the responsible Minister or Ministers. The steering committee could:   identify services, needs and support required by people with an intellectual disability when involved in the justice system;   identify the roles of agencies responsible for meeting those needs;  develop interagency guidelines for determining the responsibilities of agencies where there is an overlap in service delivery; and  establish guidelines to ensure that departments and agencies involved in the justice system exchange information where appropriate. These guidelines should take into account relevant privacy and confidentiality considerations and be developed in consultation with the Privacy Commissioner.

7: That Victoria Police develop separate sections in the Victoria Police Manual for guidance on mental illness, intellectual disability, and cognitive impairment respectively, and define appropriate responses for each impairment.

8: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide guidance on how to identify a person with an intellectual disability or cognitive impairment.

9: That Victoria Police identify and make available a simple indicative screening test for use by police officers when they suspect that they have come into contact with a person with an intellectual disability or cognitive impairment.

10: That Victoria Police record all instances when an Independent Third Person provides assistance to a person during a police interview on the Law Enforcement Assistance Program.

11: That the Victorian Government evaluate the performance of the Geelong Community Support Register, and if benefits from the Register are demonstrated, consider introducing similar registers across Victoria.

12: That Victoria Police make available to police officers regular revision training on issues surrounding interaction with people with an intellectual disability or cognitive impairment. Training could encompass:  techniques to improve identification of people with an intellectual disability or cognitive impairment;  techniques to encourage effective communication with people with an intellectual disability or cognitive impairment;  a component to raise awareness of challenges experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system;   a component outlining the services available to people who have an intellectual disability or cognitive impairment; and  a component outlining existing operational procedures that aim to provide support to people with an intellectual disability or cognitive impairment during police interviews, such as the Independent Third Persons program.

13: That Victoria Police consider establishing a Disability Liaison Officer position across major metropolitan and major regional police service areas to provide expertise in identifying and appropriately interacting with people with an intellectual disability or cognitive impairment.

14: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide enhanced guidance on how to improve communications with people with an intellectual disability or cognitive impairment. Guidance could cover:  the need to pitch language and concepts at a level that can be understood;   the need to take extra time in interviewing;  the risks of the person’s susceptibility to authority figures, including a tendency to give answers that the person believes are expected;   the dangers of leading or repetitive questions; the need to allow the person to tell his or her story in their own words;  the person’s likely short attention span, poor memory and difficulties with details such as times, dates and numbers; and  the need to ask the person to explain back what was said.

15: That the Victoria Police Manual be amended to provide enhanced guidance on how to administer a caution to a person with an intellectual disability or cognitive impairment. Guidance could describe:  the comprehension difficulties that a person with an intellectual disability or cognitive impairment may experience in comprehending the right to silence and police cautions;   the possible evidentiary consequences of failing to understand the caution; and   the need for the person to be reminded of the caution during the interview process.

16: That guidance contained in the Victoria Police Manual be enhanced to clarify an officer’s obligation to obtain an Independent Third Person during an interview with a person suspected of having an intellectual disability.

17: That the Victorian Government promote the Independent Third Person program, and review incentives for participation in the program to ensure that enough suitably qualified people are able to perform the duties of an Independent Third Person.

18: That the  Government develop a comprehensive community education campaign to increase awareness of legal rights, court processes, and legal assistance and support by people with an intellectual disability or cognitive impairment, their families and carers. The education campaign should be delivered in disability, community and education settings, and online.

19: That the  Government ensure that specialist community legal centres and other agencies that provide services directly to people with a disability are able to adequately meet demand.

20: That the  Government examine whether financially disadvantaged sectors of the intellectually disabled and cognitively impaired community are able to access sufficient legal aid

21: That the  Government ensure that psychological or psychiatric reports are available to determine whether individuals that come into contact with the justice system have an intellectual disability or cognitive impairment in all appropriate cases.

22: That the  Government support the Law Institute of Victoria and the Victorian Bar to develop and distribute information to their members containing information on how to better interact with, and appropriately respond to, clients with an intellectual disability or cognitive impairment. This information could include:   how to identify intellectual disability or cognitive impairment;   issues involved in prosecuting and representing clients who have an intellectual disability or cognitive impairment;  disadvantages experienced by people with an intellectual disability or cognitive impairment; and organisations that can provide information to assist both practitioners and clients.

23: That the  Government assist the Law Institute of Victoria and the Victorian Bar to develop and distribute information to members on appropriate communication techniques when interviewing a person with an intellectual disability or cognitive impairment. Communication techniques could include that:  the interview be conducted where it is quiet and there are few distractions;  extra time be scheduled for the interview; advice be given in clear, brief sentences and spoken clearly and slowly;  plain English, short words and sentences be used;  the client be encouraged to use their own terminology;  communication by alternative means, for example, using picture boards, be encouraged;  one piece of information and advice be provided at a time; and questions be open ended.

24: That the  Government consider establishing a mechanism to allow appropriately qualified independent support people to attend interviews between lawyers and clients with an intellectual disability or cognitive impairment.

25: That the  Government liaise with the Law Institute of Victoria and the Victorian Bar to consider amending the Professional Conduct and Practice Rules 2005 and the Victorian Bar Incorporated Practice Rules 2009 to require lawyers to discuss with a client with an intellectual disability or cognitive impairment whether the client wishes to have a support person present. If the client does wish to have a support person present, the lawyer should make enquiries as to whether a nominated or independent support person could provide appropriate support for the person.

26: That the  Government support the Judicial College of Victoria to provide more training opportunities for members of the judiciary about best practice management in proceedings involving a person with an intellectual disability or cognitive impairment.

27: That the  Government support the Judicial College of Victoria to develop, in consultation with members of the judiciary and the disability sector, guidance material on how the needs of people with an intellectual disability or cognitive impairment can be identified and appropriately met, including with modifications to court proceedings.

28: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow the trial judge to investigate an accused’s fitness to stand trial.

29: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to require the court to determine, when considering fitness to stand trial: 1) the ability of the accused to understand, or respond rationally to, the charge or allegations on which the charge is based; or 2) the ability of the accused to exercise, or to give rational instructions about the exercise of, procedural rights.

30: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow investigations into an accused’s fitness to stand trial to be considered in the Magistrates’ and Children’s Courts.

31: That the  Government consider amending the Criminal Procedure Act 2009 (Vic) to ensure that uniform committal procedures are employed when fitness to stand trial is considered by the courts.

32: That the  Government investigate procedures adopted in the United Kingdom for determining fitness to stand trial, with a view to examining whether these procedures could provide for opportunities to resolve determinations of fitness to stand trial in Victoria more expeditiously.

33: That the  Government consider introducing legislation to provide a definition of ‘mental impairment’ in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to encompass mental illness, intellectual disability, acquired brain injuries and severe personality disorders, while maintaining criteria for determining fitness to stand trial described in section 6 of that Act and Recommendation 29 above. .

34: That the  Government extend the use of problem-solving court models currently operating in the Magistrates’ Court of Victoria – particularly the Assessment and Referral Court List, the Court Integrated Services Program and the Neighbourhood Justice Centre – across Victorian Magistrates’ Courts in major metropolitan and major regional centres.

35: That Victoria Police require police officers qualified to conduct audio and audio-visual recordings of evidence to receive training on effective communication with people with an intellectual disability or cognitive impairment, and awareness of the kinds of disadvantages experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system.

36: That the Victorian Government consider establishing a witness intermediary scheme modelled on the United Kingdom scheme to provide support for people with an intellectual disability or cognitive impairment. The role of the intermediary could include:  communicating questions that have been put to the witness;   communicating answers given by the witness in reply to any questions; and  explaining questions or answers as necessary to allow them to be understood by the witness.

37: That the Government review current arrangements for the appointment of litigation guardians. The review could seek to: ensure consistent processes are employed by the courts to appoint litigation guardians;  ensure that a mechanism exists to enable a person with a disability to locate a suitably qualified litigation guardian; and  ensure that organisations currently acting, or required by the courts to act, as litigation guardians are able to draw upon funds to meet adverse costs orders should such orders be imposed by the courts.

38: That the Government consider establishing specialist advocacy roles within the Magistrates’, Children’s, County and Supreme Courts of Victoria to provide support to Magistrates and Judges to manage cases involving a person with an intellectual disability or cognitive impairment.

39: That the  Government examine whether existing mechanisms for giving evidence by alternative means could be expanded, with a view to exploring whether these measures could enhance the level of participation that all people with an intellectual disability or cognitive impairment have in court proceedings.

40: That the Government consider amending the Sentencing Act 1991 (Vic) to clarify the courts’ ability to impose a residential treatment order for ‘serious offences’ and the status of residential treatment orders within the sentencing hierarchy available to the courts.

41: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to clarify Departmental responsibility for supervising and monitoring Custodial Supervision Orders and Non-Custodial Supervision Orders.

42: That the Government ensure the Department of Human Services and Department of Justice prepare pre-sentence reports in a timely and efficient manner for people with an intellectual disability or cognitive impairment. 

43: That the Government continue to support Corrections Victoria in providing education, training, and resource programs for Corrections staff working with people with an intellectual disability or cognitive impairment.