TRUSTe

EPIC reports that the US Federal Trade Commission has settled a consent agreement with privacy certification provider TRUSTe after alleging that deception of consumers with the company's privacy seal program.

EPIC states that

TRUSTe performs privacy compliance assessments for websites, and provides a set of icons for websites to display. By displaying TRUSTe icons, websites convey to users that they comply with various privacy requirements. The FTC brought the charges under Section 5 of the FTC Act, which allows the Commission to prohibit "unfair or deceptive" trade practices.

The FTC charged TRUSTe with failure to conduct re-certifications for companies that displayed privacy seals, although TRUSTe's website states that it conducts annual re-certifications. "TRUSTe promised to hold companies accountable for protecting consumer privacy, but it fell short of that pledge," stated FTC Chairwoman Edith Ramirez. Under the consent agreement, TRUSTe is prohibited from misrepresenting business practices to consumers, must pay a $200,000 fine, and must submit a detailed filing to the FTC every year describing its COPPA recertification process.

The Federal Trade Commission has also investigated a number of companies displaying Safe Harbor or other privacy seals without renewing their certifications. The Safe Harbor Framework, coordinated by the Department of Commerce, is an industry-developed, self- regulatory approach to privacy compliance that allows firms to self- certify privacy policies. In February 2014, the FTC settled charges with 12 companies for failure to renew their Safe Harbor privacy certifications while continuing to post the Safe Harbor icon on their websites.

EPIC subsequently submitted comments to the FTC regarding the proposed settlement agreements. The comments highlighted the weaknesses in Safe Harbor oversight, and urged the FTC to prioritize Safe Harbor enforcement and to broaden the scope of the consent orders by requiring the companies to comply with the Consumer Privacy Bill of Rights. EPIC also requested that the FTC to make public the companies' annual compliance reports.

Australian Crime Costs

'Counting the costs of crime in Australia: A 2011 estimate' (Australian Institute of Criminology Research in Policy and Practice no.129, 2014) by Russell G Smith, Penny Jorna, Josh Sweeney and Georgina Fuller offers an estimate of "the cost of crime to our community" as of 2011.

The AIC estimates that the total cost of crime in that year was $47.6 billion, equivalent to 3.4 percent of national GDP.

This represents a 49% increase since 2001, where the total cost of crime was calculated as $31.8b (3.8% GDP). However, in terms of percentage of GDP, the overall cost of crime decreased over the period 2001 to 2011. 

The "most extensive costs" are attributed to

•  administering criminal justice agencies (police, courts and corrections), 
• assisting victims, 
• insurance and 
• greater investment on crime prevention measures. 

These costs doubled, from $12.8 billion in 2001 to $24.6 billion in 2011. In the 2011 estimates "additional Government agency costs" were included in the calculations.

The AIC estimates that the "most costly crimes to the community" were -

• Fraud ($6b) 
• Drug Abuse ($3b) 
• Assault ($3b) 
• Criminal Damage (vandalism and graffiti) ($2.7b) 
• Arson ($2.2b) 

In dealing with "Criminal justice system costs" the AIC states that

According to the Report on Government Services for 2011–12 (SCRGSP 2013), the total real recurrent expenditure (less revenue from own sources) on justice in 2010–11 was $13.1b. Of this, approximately $12.5b was spent on criminal justice. The remaining $635.5m was spent on the administration of civil courts. 

Police costs 

According to the Report on Government Services for 2011–12, real recurrent expenditure (including user cost of capital, less revenue from own sources and payroll tax) on police services for 2011–12 was $9,459m (SCRGSP 2013). This relates to state and territory policing only and excludes the cost of the AFP and other federal non-policing law enforcement agencies, which are included within Commonwealth costs below. Not all police time is spent on crime, however. For example, New South Wales Police Force (2012) estimated that almost 80 percent of time was spent either responding to incidents, criminal investigations or giving judicial support; the remaining 20 percent being spent on traffic and commuter services (although some of this time may have involved criminal matters) and support functions. The attribution of time by the New South Wales Police Force was similar to findings of the UK Her Majesty’s Inspectorate Constabulary (2012) who found that between 80–90 percent of police time was spent dealing directly or indirectly with crime. On the basis of an 80 percent allocation for crime-related functions, the total cost of policing crime in Australia in 2011–12 was $7,567m. 

Prosecution agency costs 

Previous AIC research into the costs of crime has excluded the cost of public prosecutions of criminal conduct. As this is an important area of expenditure, this is being canvassed in the present report for the first time. The recurrent expenditure on state and territory prosecution agencies in 2011–12 was $303m (see Table 29). The costs of the Office of the CDPP are included within Commonwealth costs of crime below. ... 

Court costs 

According to the Report on Government Services for 2011–12, real recurrent expenditure (net of monies received through electronic infringement and enforcement systems less payroll tax) on criminal courts for 2011–12 was $779,956,000 (SCRGSP 2013). This relates to state and territory courts at supreme, district/county and magistrates’ levels including children’s courts, coroners courts and probate registries, as well as federal courts, but excluding the High Court of Australia and tribunals, and specialist jurisdiction courts such as Indigenous courts, circle sentencing courts and drug courts. The cost of criminal matters handled by the High Court of Australia is included as part of the federal government costs below. 

In the case of coroners’ courts, not all coronial proceedings relate to criminal matters, as coroners are required to investigate all deaths that have occurred if the death appears to be unexpected, unnatural, or violent, the death is of a person who was in custody or care, or the death occurred as a result of a fire or explosion (New South Wales Coroners Court 2013). Costs of coroners’ courts for each jurisdiction in 2011–12 were $41.1m. It is estimated that one-half of national coroners’ court costs relate to crime, amounting to $20.6m which was deducted from the above Productivity Commission figure, making a total of $759,356,000. 

Corrective services 

According to the Report on Government Services for 2011–12, total recurrent operating expenditure and capital costs on prisons and community corrections, less payroll tax in 2011–12 dollars was $3,255,782,000 for prisons, $103,013,000 for transportation costs and $478,053,000 for community corrections, totalling $3,836,848,000 (SCRGSP 2013). This relates to public and private sector-operated adult custodial facilities and community corrections. These corrective services costs do not include juvenile justice costs, which are discussed below, nor the costs of police custody (which are included within policing costs above), offenders (or alleged offenders) held in psychiatric institutions or people held in immigration or military detention. 

Commonwealth agencies 

A number of Commonwealth agencies have functions and programs that relate to crime and its control. As noted above, where new crime reduction programs are used, government outlays increase accordingly and so the cost of responding to crime is closely related to the ways in which criminal justice policy is framed. On the basis of information presented in Department of Attorney-General 2011–12 Portfolio Budget Statements, the total resources allocated to the portfolio were $4,762m (AGD 2013). Examining the expense measures for each agency that could have some crime relevance, a percentage of total resources was estimated for those portfolio agencies that have some criminal justice and crime-related relevance (see Table 30). The percentage is indicative only, as precise crime-related cost allocation was not always apparent. The total estimated resources allocated to crime and its control, excluding terrorism across all agencies was $1,792m in 2011–12.  ... 

In addition to agencies within the Attorney-General’s Portfolio, there are other Commonwealth departments and agencies that undertake functions in relation to the prevention, control or response to crime. One example is the Department of Agriculture Fisheries and Forestry Biosecurity Division that works with the Australian Customs and Border Protection Service in maintaining the integrity of Australian borders. The Department of Agriculture Fisheries and Forestry allocated $297m in the 2011–12 financial period for quarantine and export services at Australian ports and borders. Other agencies that have some crime-related functions include those dealing with Indigenous Australians, the Australian Bureau of Statistics, agencies dealing with communications and computer security, research and scientific agencies, corporate and business regulatory agencies, revenue and finance agencies, and health and welfare agencies. Further research is needed to disaggregate the crime-related functions of these departments and agencies from their other functions in order to provide an accurate assessment of their contribution to the overall costs of crime in Australia, while ensuring that double counting does not occur.

The Waitangi Crown

The Crown in New Zealand: Anthropological Perspectives on an Imagined Sovereign’ by Cris Shore and Margaret Kawharu in (2014) 11(1) SITES: New Series 17 comments

The ‘Crown’ in New Zealand is often seen as an essential partner in the Treaty of Waitangi relationship between Maori and the government, yet as some legal commentators have noted, the Crown itself is a ‘legal fiction’ and a ‘shape-shifting’ symbol whose definition is obtuse and whose meanings vary according to context. This article reports on an ethnographic study that examines how the concept of the Crown is understood and contested in New Zealand. It also examines the different ways in which the Crown as a political, legal and symbolic entity shapes policy and practice. We ask, what exactly is the Crown, how is it imagined and personified, when and why is the discourse of the Crown used, and what are the implications of its continual usage? We argue that the Crown is an imagined yet extraordinarily powerful entity that represents more than simply a proxy for the New Zealand state. It needs to be deconstructed in order to shed light on the symbolic and discursive work it performs in maintaining New Zealand’s political and constitutional order. We also outline some of the key findings of our pilot study and suggest future directions for research.

 The authors argue that

The Crown lies at the heart of New Zealand’s constitutional order and is often presented as an essential partner in the Treaty of Waitangi relationship yet, as former Attorney-General Margaret Wilson notes, ‘it is also a useful fiction that enables government to distance themselves from direct responsibility for obligations under the Treaty.’ The implications of this contradiction are profound yet have rarely been explored: how can the Crown be both a core Treaty signatory and a ‘useful fiction?’ Legal scholars recognise that the Crown, as a metonym for government and the state, is a ‘shapeshifting symbol’, an abstract entity that historically embodied the British Empire but today serves as a compendious cloak for aligning archaic rules, ceremonies and meanings with the trappings of contemporary governmental authority. But if the Crown ‘has different meanings according to context,’ as even the Supreme Court of New Zealand now acknowledges, what exactly are those meanings and how does the Crown manifest itself in different contexts? How does this ambiguity affect those who deal with the Crown – either as plaintiffs or as officials – in its different guises? Perhaps more importantly, what does the shapeshifting nature of the Crown tell us about the character of the state in New Zealand and the practice (or art) of government? Despite major interest in the Crown as a legal concept in New Zealand, to date very little attention has been paid to how the Crown is personified and embodied or to its symbolic and semiotic character; that is, to the Crown as a cultural entity and social institution. 

This article sets out to address these questions and fill that lacuna by examining how the concept of the Crown is understood and contested in New Zealand. In doing so, we report on an ethnographically informed pilot study carried out in 2012 involving both personal observations and in-depth interviews with Crown officials, legal and constitutional experts, politicians and Maori leaders. Our primary aim was to examine the different meanings that the Crown holds for legal and political elites in New Zealand; i.e., to understand how they imagine the Crown and the implications of these imaginaries. We also sought to analyse the different ways in which the rhetoric of the Crown is used to buttress authority, legitimize decision-making, and shape policy and practice. 

That interest was piqued by our observations of the curious and sometimes contradictory ways in which government ministers invoke ‘the Crown’ in their political oratory and public pronouncements. Sometimes ministers will speak to an issue of public policy as members of Parliament, the ruling National Party, the government, and as ‘the Crown’ itself – often oscillating between all four registers. This raises the question ‘what exactly is the Crown’ and when is that term used (or not used) in political and legal discourse? As we discovered, the Crown in New Zealand is typically taken for granted and treated as a given that requires little or no explanation. We therefore set out to deconstruct the Crown in order to shed light on its symbolic meanings and the discursive work that it performs in maintaining New Zealand’s political and constitutional order. Our argument is presented in four parts. First, we outline the methodology used in our study, the rationale for the research and the anthropological issues it raises. Our hypothesis is that the Crown, as proxy for state authority, provides a useful optic for understanding the changing nature of the state and nation in New Zealand, and may have significance for other post-colonial societies as well. Second, we ask, how should we conceptualise the Crown, how is it perceived, and why is defining and locating it problematic? Third, we draw on our fieldwork interviews and observations to examine people’s understanding and experience of the Crown. We also examine some of the contradictory ways in which the Crown is made visible in New Zealand, how these different representations are interpreted and what they symbolize. Finally, we consider some of the ways in which the concept of the Crown is put to work in New Zealand public discourse – and with what implications.

Citizenship

The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) - shortly off to the Senate - is described as amending the Australian Citizenship Act 2007 (Cth) to

insert, clarify and strengthen key provisions of the Act relating to:

• extending good character requirements; 

• clarifying residency requirements and related matters; 

• circumstances in which a persons approval as an Australian citizen may or must be cancelled; circumstances in which the Minister may defer a person making the pledge of commitment to become an Australian citizen; 

• circumstances in which a persons Australian citizenship may be revoked; the power of the Minister to specify certain matters in a legislative instrument; 

• the use of personal information obtained under the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) for the purposes of the Act and the Australian Citizenship Regulations 2007 (Cth); 

• the disclosure of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and minor technical amendments.

The Bill also amends the Migration Act to enable the use of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act and the Migration Regulations, and to enable the disclosure of personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act and the Citizenship Regulations.

The proposed new regime will

• require all citizenship applicants to be of good character in order to be eligible for Australian citizenship, including applicants under 18 years of age; 

• extend the bar on approval as an Australian citizen related to criminal offences to all applicants for citizenship; 

• extend the offence provisions in the Act to capture more modern sentencing practices, including circumstances where a person is subject to an order of a court for home detention, an order of a court requiring the person to participate in a residential scheme or program, or circumstances in which the person has not been sentenced to a term of imprisonment but is nevertheless under an obligation to a court; 

• provide for the mandatory cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences; 

• provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because of identity, having been assessed as a risk to security or being subject to the bar on approval related to criminal offences; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; increase the maximum period of deferral for making the pledge of commitment to become an Australian citizen from 12 months to 2 years; 

• replace the current automatic provision in the Act which deems a citizen by descent never to have been a citizen, in spite of being approved by the Minister, if they did not have an Australian citizen parent at time of birth (section 19A), with a discretion for the Minister to revoke a persons Australian citizenship if the person has been approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given (except in circumstances where the revocation decision would result in the person becoming stateless); 

• provide the Minister with the discretion to revoke a person's Australian citizenship where acquired by descent, conferral or under intercountry adoption arrangements if the Minister is satisfied that the person obtained Australian citizenship as a result of fraud or misrepresentation in certain circumstances regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation (and regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen themselves, or some other person); 

• provide that the Citizenship Regulations may confer on the Minister the power to make legislative instruments; clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act or the Citizenship Regulations; 

• clarify that the Minister, the Secretary or an APS employee in the Department of Immigration and Border Protection (the Department) may disclose personal information obtained under the Act or the Citizenship Regulations to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations; and make certain consequential amendments.

The Bill  amends the Migration Act to -

allow the Minister, the Secretary or an officer to use personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and

allow the Minister, the Secretary or an officer to disclose personal information obtained under the Migration Act or the Migration Regulations to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act and the Citizenship Regulations, subject to a specified exception.

In relation to privacy the Explanatory Memorandum states -

The purpose of this amendment is to clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the regulations under that Act or personal information disclosed under subsection 488C(3) of the Migration Act (inserted by item 77 below) for the purposes of the Act or the regulations under the Act.

Such personal information would include, but would not be limited to: information provided by the person themselves or a third party to the Department concerning an application for a visa made by the person; information provided by the person themselves or a third party to the Department concerning the cancellation, or possible cancellation, of a visa held by the person under the Migration Act.

The uses for which the personal information will be put include, but would not be limited to, making a decision whether to approve or refuse to approve the person becoming an Australian citizen under the Act.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for use for citizenship purposes unless express permission is received.

New subsection 53A(3) of the Act provides:

Disclosure

The Minister, the Secretary or an APS employee in the Department may disclose personal information obtained under this Act, or the regulations under this Act, to the Minister, the Secretary or an officer (within the meaning of the Migration Act 1958) for the purposes of that Act or the regulations under that Act.

The purpose of this amendment is to clarify that personal information obtained under the Act or the Citizenship Regulations may be disclosed to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act.

Such personal information would include, but would not be limited to, personal information provided by the person themselves or a third party to the Department concerning an application to become an Australian citizen made by the person.

The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purposes of the Privacy Act 1988 (Cth). As migration and citizenship matters are currently contained within the same portfolio (administered by the Department) the exchange of personal information between officers dealing with migration matters and officers who deal with citizenship matters constitutes a use, rather than a disclosure, of that personal information.

However, it is possible that migration and citizenship matters could be split between different portfolios in future. On this basis, a provision that permits the disclosure of  personal information obtained under the Act or the Citizenship Regulations to the Secretary or to an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act is inserted.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for disclosure for citizenship purposes unless express permission is received.

New subsection 53A(4) of the Act provides:

Definitions

In this section: personal information has the same meaning as in the Privacy Act 1988. Secretary means the Secretary of the Department.

"Personal information" is defined in section 6 of the Privacy Act to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

The purpose of this amendment is to insert new definitions for the purposes of new section 53A of the Act.

The Privacy Act applies to the use and disclosure of personal information by Australian Privacy Principle (APP) entities. The Department is an APP entity for the purposes of the Privacy Act.

As an APP entity the Department must use and disclose personal information in accordance with the Australian Privacy Principles (APPs) prescribed in Schedule 1 to the Privacy Act. Australian Privacy Principle 6 prescribes when the Department may use or disclosure personal information. Australian Privacy Principle 6 generally provides that the Department can only use or disclose personal information for a purpose for which it was collected (the primary purpose) or for a secondary purpose if an exception applies. An exception prescribed in APP 6.2(b) of the Privacy Act provides that personal information may be used or disclosed if it is required or authorised by or under an Australian law.

For the avoidance of doubt, the use of personal information in accordance with new subsections 53A(1) and 53A(2) is a use that is authorised by an Australian law for the purposes of the Privacy Act. The disclosure of personal information in accordance with new subsection 53A(3) is a disclosure of personal information that is authorised by an Australian law for the purposes of the Privacy Act.

Grey Literature

'Where is the Evidence? Realising the value of grey literature for public policy & practice: A discussion paper' by Amanda Lawrence, John Houghton, Julian Thomas and Paul Weldon provides a "snapshot" by Grey Literature Strategies at Swinburne

 of our research to date and makes a number of suggestions and recommendations. This is the starting point for what we hope will be an ongoing conversation amongst interested parties.

The authors comment -

The internet has profoundly changed how we produce, use and collect research and information for public policy and practice, with grey literature playing an increasingly important role. The authors argue that grey literature (i.e. material produced and published by organisations without recourse to the commercial or scholarly publishing industry) is a key part of the evidence produced and used for public policy and practice. Through surveys of users, producing organisations and collecting services a detailed picture is provided of the importance and economic value of grey literature. However, finding and accessing policy information is a timeconsuming task made harder by poor production and management of resources and a lack of large-scale collection services able to host and make available relevant, high-quality resources quickly and efficiently. The paper makes recommendations for changes that would maximise the benefits of grey literature in the public interest and seeks feedback from readers to inform the final report of the research project.

Public policy work increasingly relies on a wide range of resources — some are traditional scholarly publications, but the majority are ‘grey literature’. Reports, discussion papers, briefings, reviews and data sets produced by government, academic centres, NGOs, think tanks and companies are heavily used and highly valued in policy and practice work, forming a key part of the evidence base.

The huge amount of information and research published online provides unprecedented access to knowledge, from a wide range of sources, enabling a much greater level of understanding and participation in public interest issues. It also brings a number of challenges: searching, sifting, evaluating and accessing information and research are time-consuming and often frustrating tasks occupying a large portion of the day for those engaged in policy work. Online publishing also creates a new paradigm for those whose task it is to support policy and practice work through effective resource provision and information management. As a result, digital curation of policy resources, particularly grey literature, is dispersed and fragmented, creating a digital black hole of resources that are being lost from online access over time.

About the project

The aim of the Grey Literature Strategies research project is to investigate grey literature’s role and importance in public policy and to find ways to enhance its value. A key method used was online surveys of producers, users, and collectors of information and research for policy and practice, conducted during 2013. Grey literature is heavily used and highly valued for policy work

The most common resources, consulted regularly or occasionally by over 80% of surveyed policy information users, are reports, journal articles, discussion papers, and ‘briefings, guides and research reviews’. News reports and conference papers are used regularly by 79%, and two-thirds of policy workers use books and data regularly or occasionally. Working papers, submissions and evaluations are used by more than half of all policy workers regularly or occasionally. The most important or very important resources used are reports (81%), journal articles (75%), discussion papers (69%), briefings, reviews and guides (66%) and data sets (61%).

Public policy is driven by a complex network of knowledge exchange across and within sectors. Government is not only a consumer of information and research, but is also a major producer in its own right. The most important sources of information for policy workers surveyed are government departments and agencies (94%), university centres or departments (83%), NGOs (79%), scholarly or commercial publishers (78%), think tanks (55%), and commercial research companies and consultants (31%). Information users report that they value grey literature because: their work depends on grey literature; grey literature provides a broad view of the research environment and perspectives; grey literature is a unique source of information on topics, sources and issues not found elsewhere; grey literature is essential for public policy; academic journals do not cover the same issues; grey literature is widely available online for free; and grey literature is often the most timely source of information.

Policy grey literature is produced for impact and often paid for by public funds

The most important reason to produce material for more than 90% of organisations surveyed is to contribute to the evidence base and inform public policy. Other aims are to translate knowledge for public use (84%), and to maximise public access to research and information (79%). Financial gain is not an important consideration for most organisations surveyed, even for those in the commercial sector. It is probable that most of the material produced by government, NGOs and education organisations is paid for through public funds.

Policy makers and practitioners struggle to find and evaluate relevant resources

Dissemination, discovery and access have become increasingly complex in the digital environment. Most of the users we surveyed find out about new information through the websites of key organisations, email newsletters, and colleagues sharing information. Almost half of surveyed information users would use resources more often if they were easier to find or access, with the most requested being journal articles, data and statistics, reports, and government material. Finding relevant resources including knowing what exists and where to look, and the amount of time required to sift and evaluate, are major issues for 45% of information users surveyed. Accessing resources — particularly the cost of journal articles and market research, and problems accessing government content — are problematic for 43% of information users surveyed. Poor production quality, the difficulty of evaluating credibility, the lack of collecting services and problems caused by link rot were also mentioned.

There is a lack of digital curation and services are hampered by outdated legislation

Finding and accessing policy information is a time-consuming task made harder by poor production standards and a lack of large-scale collection services able to host and provide relevant, high-quality resources quickly and efficiently. Despite users’ preference for online access to policy resources, large digital collections are much less common than print. There is a series of factors that make the collection of digital grey literature difficult, despite the value users place on it: copyright; the lack of digital infrastructure planning and management; the difficulty of discovery and evaluation; and the lack of standards in production and cataloguing.

Opportunities and recommendations

There are clear opportunities to reduce the challenges and increase the benefits of digital grey literature. Production practices could be improved, and mandates could be created for greater access to publicly funded research. Large-scale digital collection infrastructure, collaborative cataloguing systems and shared standards could be developed for efficient collecting at web scale. Reforming legal deposit and copyright legislation to support fair use provisions for preservation and access to non-commercial material of public interest would make large-scale collecting more efficient and achievable. Such reforms are a no cost win:win.

We therefore provide the following five recommendations for maximising the value of grey literature:

Recommendations

1. Improve production standards and transparency

2. Ensure greater discoverability and accessibility

3. Recognise the value of grey literature for scholarly communication

4. Improve collection and curation of policy resources

5. Reform copyright and legal deposit legislation.

FOI

The Senate Legal and Constitutional_Affairs has released its report [PDF] on the deeply flawed Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth).
That Bill is meant to "implement the new arrangements for privacy and FOI functions announced by the Government in the 2014 Budget", amending various Acts in order to:

• abolish the positions of Freedom of Information Commissioner and Australian Information Commissioner, and the OAIC; 
• create an independent statutory office of Australian Privacy Commissioner within the Australian Human Rights Commission (AHRC); 
• remove the current two-stage process for review of FOI decisions, with external merits review to be available only from the AAT, following mandatory internal review; 
• make the Attorney-General responsible for FOI guidelines, collection of FOI statistics and annual reporting on the FOI Act, in place of the Information Commissioner; and 
• make the Commonwealth Ombudsman solely responsible for investigating complaints about FOI administration. 

The Committee comments that

In his second reading speech on the Bill, Senator Richard Colbeck said the new arrangements set out in the Bill would not affect the legally enforceable right of every person to access official documents under the FOI Act, nor change the substantive criteria governing agencies' and ministers' decisions on FOI requests. The Bill would, however:

reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the [OAIC] on 1 November 2010.

The Bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.

He would say that, of course, wouldn't he.

The Coalition Senators commented

Functions to be exercised by the Attorney-General: a conflict of interest?

Many submitters believed that the transfer of a number of FOI-related functions and powers from an independent statutory authority to the Executive branch of government was inappropriate and created a potential conflict of interest.

Associate Professor Moira Paterson of Monash University said that historically, oversight of the FOI Act by the Attorney-General's Department had not featured the same 'active championship and enforcement' of FOI as that now shown by the OAIC. The Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.

PIAC and others expressed particular concern about the assumption of determinative powers by the Attorney-General, such as to exempt documents from disclosure under FOI. Ms Sophie Farthing of PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'. The Public Law and Policy Research Unit at the University of Adelaide agreed, adding the observation that the department would 'both be implementing the [FOI] framework and providing a report on how well this has been achieved'. Professor Disney described the placement of promotion, monitoring and guidance roles within the Attorney-General's Department as 'utterly inappropriate'.

In its evidence, the Attorney-General's Department assured the committee that production of guidance and guidelines to government agencies would 'remain the same' under the department's administration as it had been under the OAIC, and that there would be no conflict with the department's decision-making role. The department further noted that the Bill provided for the transfer of staff from the OAIC to the department, ensuring that expertise would be brought in to discharge the functions formerly performed by the OAIC.

Arrangements for the Australian Privacy Commissioner

The AHRC raised concerns with the committee about the arrangements proposed in the Bill for the Australian Privacy Commissioner to be established as an independent statutory body within the AHRC:

The Bill proposes that the Australian Privacy Commissioner should sit within the AHRC but not be a member of the [AHRC]. The staff assigned to the Commissioner will be staff of the AHRC but under the exclusive direction of the Privacy Commissioner. These provisions will not work as a matter of law as the Accountable Authority for the purpose of the Public Governance, Performance and Accountability Act (PGPA) remains the President of the AHRC. It is also proposed that the Privacy Commissioner should have the same status as a staff member for the purpose of the PGPA. While all the other Commissioners within the AHRC report through the President to the Attorney-General, the Australian Privacy Commissioner would report directly to the Attorney-General. …the model proposed by the Bill fails to understand the legal obligations under the PGPA and the Australian Human Rights Commission Act and, with the best will in the world, creates potential for conflict. There are confusing lines of authority both in financial and staffing respects.

At the committee's public hearing, AHRC President Professor Gillian Triggs described the proposed arrangements as placing the Australian Privacy Commissioner 'in a separate bubble' within the AHRC:

If this Bill is passed, we will continue to do what we are doing in the [AHRC] but we will have this bubble in the middle of it where you have a Privacy Commissioner with staff I will allocate to him notionally, but the curious phenomenon under the bill is that those staff would not, under any circumstances, be accountable to the commission. That is simply unworkable because of the way in which the financial requirements are and in relation to all sorts of staffing matters and other legislation.

The AHRC proposed that these problems could be resolved by amending the legislation to reflect one of three alternative models: the creation of the Australian Privacy Commissioner as a separate Commonwealth entity (which could still receive corporate support from AHRC), the appointment of the Commissioner as a member of the AHRC in the same way as the other AHRC Commissioners, or an amendment to the Bill specifying that the Australian Privacy Commissioner would be empowered to direct staff only 'in compliance with his statutory functions', while in other respects the position would be subject to usual AHRC governance processes.

The Privacy Commissioner, Mr Timothy Pilgrim, agreed with the AHRC that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. He stated that historical experience, under which the Privacy Commissioner had been part of the (then) Human Rights and Equal Opportunity Commission prior to 2000, had not proven to be effective, and that the 'significantly different regulatory focus' of the Privacy Commissioner's role made it a poor fit for the AHRC. The Australian Privacy Foundation expressed a similar view, and believed that moving the Commissioner (back) into the AHRC risked 'repeating the mistakes of the original regime, and leaving the Commissioner with an even lower profile, and influence, than s/he [previously] had'.

Mr Pilgrim advocated for the return to a stand-alone statutory Office of the Privacy Commissioner, as had existed from 2000-2010. He observed that arrangements already in place between OAIC and AHRC for sharing corporate services such as human resources, finance and IT could continue for the office of an independent Privacy Commissioner, mitigating against any additional costs.

The Attorney-General's Department advised the committee that the relationship proposed in the Bill between the Australian Privacy Commissioner and the AHRC was not dissimilar to other models already in existence, citing the Classification Board as an example. The department stated that it was not unprecedented that office holders held statutory functions while not controlling their own finances and staffing. The department added that parliament would provide guidance on the appropriate resourcing for the Australian Privacy Commissioner's functions, in the form of budget appropriations, and that the Attorney-General as portfolio minister would be able to resolve any difficulties which may arise between the AHRC President and the Australian Privacy Commissioner with regard to the exercise of their respective statutory responsibilities.

Projected Savings

Several submitters queried the government's assertion that the reforms made by the Bill would result in savings of $10.2 million over four years. In particular, many pointed out that the additional costs to agencies of mandatory internal review had not been taken into account.46 In addition, attention was drawn to projected increased costs of AAT review not only to individual applicants, but to government agencies and the AAT itself.

Many were unconvinced that savings at the level of $2.5 million per year, even if realised, were significant enough to justify the losses to public accountability and open government which they believed would result from abolition of the OAIC. Professor Julian Disney expressed the view that 'achieving small government at the expense of good, efficient and open government seems rather contradictory'.

The argument for comprehensive FOI review

The committee's attention was drawn by many to the fact that the Hawke Review, submitted in July 2013, had commented positively on the OAIC, but also made a large number of recommendations to improve the operation of the FOI process, and recommended that these be considered further in a comprehensive review of FOI. Many submitters queried the government's decision to proceed with the measures in the Bill in advance of completing its consideration of the Hawke review, and without any broader review or consultation.

Mr Edward Santow of PIAC spoke strongly about this issue: There has been no public case made in any detail at all for what can only be described as radical changes to our FOI law. Indeed, the FOI law was overhauled as recently as 2010. Very little public consultation has taken place in respect of the Bill's proposals and the government is yet to respond to the recommendations in the statutory review that took place last year under Dr Allan Hawke. If the government is minded to make major changes to FOI law and practice we would urge the government first to undertake a full public consultation that also takes into account the recommendations of the many reviews since the Australian Law Reform Commission's review in 1995.

In response the Coalition Senators state - 

The committee notes that the objectives pursued by the Bill are fundamental to the government's core policy objectives of realising Budget savings, and creating smaller and more efficient government.

The committee has carefully considered the concerns raised by the AHRC in relation to the proposed arrangements for the Australian Privacy Commissioner. The committee recognises the need expressed by the AHRC to ensure that it is able to meet appropriate standards of governance, accountability and practicality in relation to the management of its finances and staff. The committee also acknowledges the perspective of the Privacy Commissioner on the particular requirements of that role, and his preference for maintaining the independence of the office.

The committee notes the advice provided by the Attorney-General's Department that the type of arrangement proposed for the Australian Privacy Commissioner is not unprecedented, and that the department is satisfied that it will not compromise the ability of the AHRC President to comply with her legislative responsibilities.

The committee takes the view that the amendment to the Bill proposed by the AHRC is warranted, in as much as it is a relatively small change but one which would give comfort to the AHRC, and may assist all involved, in ensuring that lines of governance and accountability are clear and workable.

 Its recommendations are that  -

R1 - item 3 of Schedule 2 of the Bill be amended to provide, under the proposed new section 43A(3) of the Australian Human Rights Commission Act 1986, that a member of staff of the AHRC made available to the Australian Privacy Commissioner is subject to the directions of the Commissioner 'in compliance with the Commissioner's statutory functions'.

R2 - the government as soon as possible respond to the Hawke Review, and conduct a consultation process as recommended in the Hawke Review.

R3 - subject to Recommendations 1 and 2, the Bill be passed.

The ALP Senators offered a less anaemic analysis, stating -

Freedom of information laws are essential to Australia's democracy because they give the Australian public and media access to information about what the government elected by the Australian people is doing in their name. Labor has long championed strong and effective freedom of information in Australia. In 2009-10 the Labor government made the most substantial reforms to Australia's FOI regime since its establishment in 1982, following extensive public consultation and with widespread support.

This reform, with the introduction of the Office of the Australian Information Commissioner (OAIC) at its heart, is now being dismantled by the Abbott government with no mandate, no consultation and no justification. The government's claim that the Bill does not affect the substantive rights of citizens, civil society and the press under FOI is simply not true. Its argument that it reduces the burden on applicants is, as Professor Richard Mulgan of the Australian National University described it, 'deceitful sophistry'.

The Bill is an attack on Australia's FOI regime, and on the work the former Labor Government did to revitalise that regime and bring it into line with international best-practice. It is an attack on transparent and accountable government. Labor Senators cannot support it.

No savings

The Bill is not, as the Committee’s majority report claims, a savings measure. As has been noted, even the small cuts achieved by this Bill may be illusory. The costs to agencies of mandatory internal review have not been accounted for.

Moreover, as almost every submission to this inquiry pointed out, a portion of the proposed 'savings' are in fact nothing but cost-shifting to applicants, who will now have to pursue an expensive formal appeal process instead of a free and accessible one.

No review

This Bill would abolish all independent merits review of FOI decisions short of a full adversarial FOI challenge in the Administrative Appeals Tribunal (AAT). As has been noted by numerous submissions to the Committee, AAT review is inaccessible to most ordinary FOI applicants. While review by the OAIC is free-of-charge, applicants face a filing fee of over $800 simply to commence an appeal in the AAT. While the OAIC conducts its own investigation, an appeal to the AAT involves an adversarial process and many applicants would require legal assistance or representation. As a bespoke FOI watchdog, the OAIC has developed a specialist knowledge and institutional memory that a generalist administrative tribunal will find difficult to match.

The AAT and the OAIC are in no sense interchangeable means of review. As Associate Professor Moira Paterson of Monash University argued, 'the genuine availability of an independent review mechanism is fundamental both to the effective operation of the legislation and public confidence in it'. Limiting review to those with the resources and legal knowledge or advice to go to the AAT will not only limit the accessibility of the FOI scheme to applicants, but may also affect the behaviour of government agencies, which 'need to know that their decisions are subject to independent oversight if they are to continue to take their FOI obligations seriously'.

Even Australia's Right to Know, the only submitter which overtly supported the move to direct review by the AAT, acknowledged that the situation of the media organisations which it represents was different to that of private individuals, and encouraged the consideration of a model which would retain the role of an information commissioner for those applicants who would benefit from it.

No consultation

Labor engaged in extensive consultation on its proposed changes to FOI laws in 2009-10, resulting in a new FOI infrastructure that was well-considered and enjoyed broad support. In stark contrast, the government did not conduct any review or consultation prior to announcing the Budget measure this Bill implements.

As noted in the committee's report, the recent review of FOI led by Dr Allan Hawke AC found that the establishment of the OAIC had been 'a very valuable and positive development'. Hawke concluded that the new FOI system was largely working as intended, and that any further reform should only proceed after more comprehensive review. The Government has ignored the good work done by the Hawke review, and has not undertaken any serious analysis of its own on the operation of the FOI scheme or of the OAIC. It is simply unacceptable for the Government to proceed with the complete overhaul of the FOI system without a thorough review and proper consultation.

No OAIC

The management of FOI and related information policy through an independent national body is best practice, and follows a global trend in comparable jurisdictions. The creation of such a body at federal level was advocated as long ago as 1995, in the Open Government Report of the Australian Law Reform Commission and Administrative Review Council. The OAIC was the centrepiece of the revitalisation and reform of FOI successfully brought about under the former Labor government. The continued existence of the OAIC received overwhelming support in submissions to this inquiry.

Labor senators accept that there have been complaints about long timelines for IC processing of FOI reviews, but notes the observation of FOI experts that these have been caused largely by the inadequacy of resources provided to the OAIC. Any delays in the OAIC review process should be dealt with by reviewing and if necessary increasing the resourcing of that office, not abolishing it. The OAIC and other FOI experts also noted that various suggestions had been made to improve the efficiency of OAIC processes. The OAIC has worked on its own volition to dramatically reduce its review timelines, as demonstrated in its most recent annual reporting. The Government has made no attempt to grapple with real solutions to perceived problems with the operation of the OAIC. Rather, its approach has been, as one submitter put it, to throw the baby out with the bathwater.

Under the arrangements proposed in the Bill, oversight of FOI – a system designed to hold executive government to account – will now be led by a core government department. This is a clear conflict of interest. Liberty Victoria observed that open government 'is now to be sacrificed to the very entities in whose interests the limitation of access to governmental information will, from time to time, be prevalent.'

In evidence to the committee, Information Commissioner Professor John McMillan observed that:

open government is ultimately more a matter of culture than precise legal rules, and that culture requires constant pressure. Even when one achieves a far more open and transparent system, the default system within any organisation is for greater confidentiality, greater information control, which some regard as greater secrecy. So, whatever system is in place for information oversight with a view to greater transparency, it requires constant pressure across government to ensure that the messages for transparency are heard and properly implemented…any achievement in the area of transparent government will be a temporary achievement unless there is constant pressure for greater transparency.

Labor senators believe that the OAIC must be retained. The agency has a key role to play in ensuring the transparency of our governance, and the government's proposed rearrangement is an opportunistic attack on an institution which enjoys broad support and has achieved demonstrated success. It is telling that the Abbott government, a government already known for secrecy and opaqueness, is the only voice calling for the abolition of the OAIC. If the government were truly committed to a credible FOI regime and accountable government, it would investigate measures to strengthen, not destroy, the best-practice body at its heart.

The ALP recommendations are that - 

R1   the Bill not be passed.

R2  the government immediately restore necessary funding to the Office of the Australian Information Commissioner to allow it to continue its work.

R3  the government commission a review of the operation of the OAIC, including its resourcing.

The  dissenting report by the Australian Greens commented -

Freedom of Information laws provide the public with important and necessary access to information held by governments and government departments.

The primary goal of any Freedom of Information regime should be to prioritise accessibility and transparency.

Freedom of Information laws provide the public, media organisations and journalists with a critical pathway to accessing information that otherwise would not be able to be accessed.

Of the 32 submissions received by the committee, not a single one supports the proposed changes outlined in the Bill, highlighting the importance placed by the community on an accessible and transparent Freedom of Information regime and widespread concern about this Bill.

Key issues

One of the key arguments raised by the government in support of the Bill has been the delays experienced in the processing of cases by the Office of the Australian Information Commissioner (OAIC). The government has argued that this highlights inadequacies in the organisation and thus it should be abolished.

However, a number of witnesses argued that the delays associated with the OAIC processing cases were the result of underfunding from both Labor and Coalition governments. Mr Peter Timmins argued the OAIC had been 'set up to fail' by being under-resourced from its establishment.

Mr John Wood argued:

The reforms of 2010 promised much, but the failure to provide necessary resources to the Office of the Australian Information Commissioner, led to the failure of those reforms. In addition, departments and agencies read into the failure to provide these resources, an "approval" to respond less than diligently to requests in the knowledge that either complainants would become exhausted pursuing their request, or it would be held up, in review, within the OAIC for a long, long time.

The majority committee report notes that the committee did not receive evidence indicating that AAT review would necessarily be faster than review by the OAIC. On the contrary, FOI Commissioner Dr James Popple advised the committee that comparison of the FOI reviews dealt with since 2010 revealed that the AAT had taken almost exactly the same average time as the OAIC to resolve FOI cases.

Mr Timmins in evidence to the inquiry stated:

I think the argument we are going to save $10 million over four years has some large question marks about it, to put it mildly. Some of the reasons I have raised in my submission include: the costs to individuals, the cost to the AAT; the cost to agencies for mandatory internal reviews, which has not been costed anywhere...

Other concerns raised included the high level of fees required to be paid in order to apply for an external review of decisions through the AAT.

As noted in the Majority Committee report, the Public Interest Advocacy Centre (PIAC) expressed concern that in addition to the burden of application fees, most individual applicants would not have the kind of legal representation that government agencies were able to retain, resulting in an 'imbalance that will happen in the litigious process'.

Professor Julian Disney also emphasised other factors that may affect accessibility to the AAT including the formality and intimidator impact of the AAT process and environment.

The Guardian also noted other issues with the proposed AAT process, commenting:

The $800 AAT filing fee is just the start of the potential costs to the requester in getting his or her application in front of the first reviewer who is genuinely independent of the agency which may have an interest in keeping the requested information secret and therefore in overstating the exemptions. OAIC reviews could be conducted on the papers, whereas AAT reviews will often involve hearings. The Committee will be aware that a tribunal must give procedural fairness to an unrepresented applicant, and that such hearings impose burdens on all parties and on the tribunal. Generally, they are not as efficient as proceedings in which all parties are represented by experienced practitioners.

Concerns were also raised around potential conflicts of interest relating to the exercise of functions by the Attorney-General’s department.

As noted in the majority committee report, the Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.

As noted in the majority committee report, PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'.

The Privacy Commissioner, Mr Timothy Pilgrim, stated that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. 

It is important to note that the Hawke Review did not recommend what is currently being proposed by the Government and in fact commented positively on the OAIC. It made a number of recommendations to improve the functions and operations of Australia’s FOI regime – none of which are being pursued by this Government.

The Hawke Review further called for a more comprehensive review of FOI laws and systems, something that has been pre-empted by the current Bill. 1.20 It is clear from the overwhelming evidence presented to the committee that the approach to FOI as proposed in the Bill would not improve accessibility and transparency, and in fact would create substantial barriers impacting the public’s right to know.

The Greens recommendations are that - 

R1 the Bill not be passed.

R2  the government establish a comprehensive review into Freedom of Information as recommended by the Hawke Review.

Disability and Equality

The ALRC's 324 page report on Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124) - which features several delightful quotes from myself and Dr Bonython - makes the following recommendations -

National Decision-Making Principles

R3–1 Reform of Commonwealth, state and territory laws and legal frameworks concerning individual decision-making should be guided by the National Decision-Making Principles and Guidelines (see Recommendations 3–2 to 3–4) to ensure that: ·

• supported decision-making is encouraged; 

• representative decision-makers are appointed only as a last resort; and 

• the will, preferences and rights of persons direct decisions that affect their lives.

Principle 1: The equal right to make decisions - All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2: Support - Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights - The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards - Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

R3–2 Support Guidelines (1) General

(a) Persons who require decision-making support should be supported to participate in and contribute to all aspects of life.

(b) Persons who require decision-making support should be supported in making decisions.

(c) The role of persons who provide decision-making support should be acknowledged and respected—including family members, carers or other significant people chosen to provide support.

(d) Persons who require decision-making support may choose not to be supported.

(2) Assessing support needs In assessing what support is required in decision-making, the following must be considered:

(a) All adults must be presumed to have ability to make decisions that affect their lives.

(b) A person must not be assumed to lack decision-making ability on the basis of having a disability.

(c) A person’s decision-making ability must be considered in the context of available supports.

(d) A person’s decision-making ability is to be assessed, not the outcome of the decision they want to make.

(e) A person’s decision-making ability will depend on the kind of decisions to be made.

(f) A person’s decision-making ability may evolve or fluctuate over time.

R3–3 Will, Preferences and Rights Guidelines (1) Supported decision-making

(a) In assisting a person who requires decision-making support to make decisions, a person chosen by them as supporter must: (i) support the person to express their will and preferences; and (ii) assist the person to develop their own decision-making ability.

(b) In communicating will and preferences, a person is entitled to: (i) communicate by any means that enable them to be understood; and (ii) have their cultural and linguistic circumstances recognised and respected.

(2) Representative decision-making - Where a representative is appointed to make decisions for a person who requires decision-making support:

(a) The person’s will and preferences must be given effect.

(b) Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.

(c) If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights.

(d) A representative may override the person’s will and preferences only where necessary to prevent harm.

R3–4 Safeguards Guidelines (1) General Safeguards should ensure that interventions for persons who require decision-making support are:

(a) the least restrictive of the person’s human rights;

(b) subject to appeal; and

(c) subject to regular, independent and impartial monitoring and review.

(2) Support in decision-making

(a) Support in decision-making must be free of conflict of interest and undue influence.

(b) Any appointment of a representative decision-maker should be: (i) a last resort and not an alternative to appropriate support; (ii) limited in scope, proportionate, and apply for the shortest time possible; and (iii) subject to review.

Supported Decision-Making in Commonwealth Laws

R4–1 A Commonwealth decision-making model that encourages supported decision-making should be introduced into relevant Commonwealth laws and legal frameworks in a form consistent with the National Decision-Making Principles and Recommendations 4–2 to 4–9.

R4–2 The objects and principles provisions in Commonwealth legislation concerning decision-making by persons who require decision-making support should reflect the National Decision-Making Principles.

R4–3 Relevant Commonwealth laws and legal frameworks should include the concept of a supporter and reflect the National Decision-Making Principles in providing that:

(a) a person who requires decision-making support should be able to choose to be assisted by a supporter, and to cease being supported at any time;

(b) where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support; and

(c) supported decisions should be recognised as the decisions of the person who required decision-making support.

R4–4 A supporter assists a person who requires support to make decisions and may:

(a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;

(b) provide advice to the person about the decisions they might make;

(c) assist the person to communicate the decisions; and

(d) endeavour to ensure the decisions of the person are given effect.

R4–5 Relevant Commonwealth laws and legal frameworks should provide that supporters of persons who require decision-making support must:

(a) support the person to make decisions;

(b) support the person to express their will and preferences in making decisions;

(c) act in a manner promoting the personal, social, financial, and cultural wellbeing of the person; (d) act honestly, diligently and in good faith;

(e) support the person to consult, as they wish, with existing appointees, family members, carers and other significant people in their life in making decisions; and

(f) assist the person to develop their own decision-making ability.

For the purposes of paragraph (e), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.

R4–6 Relevant Commonwealth legislation should include the concept of a representative and provide for representative arrangements to be established that reflect the National Decision-Making Principles.

R4–7 A representative assists a person who requires support to make decisions or, where necessary, makes decisions on their behalf and may:

(a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;

(b) provide advice to the person about the decisions that might be made;

(c) communicate the decisions; and

(d) endeavour to ensure the decisions made are given effect.

R4–8 Relevant Commonwealth laws and legal frameworks should provide that representatives of persons who require decision-making support must:

(a) support the person to make decisions or make decisions on their behalf reflecting their will and preferences;

(b) where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available;

(c) where (a) and (b) are not possible, consider the person’s human rights relevant to the situation;

(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person;

(e) act honestly, diligently and in good faith;

(f) consult with existing appointees, family members, carers and other significant people in their life in making decisions; and

(g) assist the person to develop their own decision-making ability.

For the purposes of paragraph (f), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.

R4–9 The appointment and conduct of representatives should be subject to appropriate and effective safeguards.

R4–10 The Australian and state and territory governments should develop mechanisms for sharing information about appointments of supporters and representatives, including to avoid duplication of appointments and to facilitate review and monitoring.

R4–11 The Australian Government should ensure that persons who require decision-making support, and their supporters and representatives are provided with information and guidance to enable them to understand their functions and duties.

R4–12 The Australian Government should ensure that employees and contractors of Commonwealth agencies who engage with supporters and representatives are provided with information, guidance and training in relation to the roles of supporters and representatives.

The National Disability Insurance Scheme

R5–1 The objects and principles in the National Disability Insurance Scheme Act 2013 (Cth) should be amended to ensure consistency with the National Decision-Making Principles.

R5–2 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include provisions dealing with supporters consistent with the Commonwealth decision-making model.

R5–3 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include provisions dealing with representatives consistent with the Commonwealth decision-making model.

R5–4 The National Disability Insurance Scheme Act 2013 (Cth) should be amended to incorporate provisions dealing with the process and factors to be taken into account by the CEO of the National Disability Insurance Agency in appointing representatives. These provisions should make it clear that the CEO’s powers are to be exercised as a measure of last resort, with the presumption that an existing state or territory appointee will be appointed, and with particular regard to the participant’s will, preferences and support networks.

R5–5 The National Disability Insurance Scheme Act 2013 (Cth) should be amended to provide that, before exercising the power to appoint a representative, the CEO of the National Disability Insurance Agency may make an application to a state or territory guardianship or administration body for the appointment of a person with comparable powers and responsibilities. The CEO may then exercise the power to appoint that person as a representative under the NDIS Act.

Supporters and Representatives in Other Areas of Commonwealth Law

R6–1 The Social Security (Administration) Act 1999 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–2 The Aged Care Act 1997 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–3 The Personally Controlled Electronic Health Records Act 2012 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–4 The Australian Information Commissioner should develop guidelines consistent with the Commonwealth decision-making model describing the role of supporters and explaining how ‘APP entities’ should recognise the role of supporters in assisting people to exercise their rights under the Privacy Act 1988 (Cth).

R6–5 The Australian Bankers’ Association should encourage banks to recognise supported decision-making. To this end, the ABA should issue guidelines, reflecting the National Decision-Making Principles and recognising that:

(a) customers should be presumed to have the ability to make decisions about access to banking services;

(b) customers may be capable of making and communicating decisions concerning banking services, where they have access to necessary support;

(c) customers are entitled to support in making and communicating decisions; and

(d) banks should recognise supporters and respond to their requests, consistent with other legal duties.

Access to Justice

R7–1 The Crimes Act 1914 (Cth) should be amended to provide that a person cannot stand trial if the person cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings;

(b) retain that information to the extent necessary to make decisions in the course of the proceedings;

(c) use or weigh that information as part of the process of making decisions; or

(d) communicate the decisions in some way.

R7–2 State and territory laws governing the consequences of a determination that a person is ineligible to stand trial should provide for:

(a) limits on the period of detention that can be imposed; and

(b) regular periodic review of detention orders.

R7–3 The Federal Court of Australia Act 1976 (Cth), Family Law Act 1975 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth) should provide that a person needs a litigation representative if the person cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in conducting proceedings, including in giving instructions to their legal practitioner;

(b) retain that information to the extent necessary to make those decisions;

(c) use or weigh that information as part of a decision-making process; or

(d) communicate the decisions in some way.

R7–4 The Federal Court of Australia Act 1976 (Cth), Family Law Act 1975 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth) should provide that litigation representatives must:

(a) support the person represented to express their will and preferences in making decisions;

(b) where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available;

(c) where (a) and (b) are not possible, consider the person’s human rights relevant to the situation; and

(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person represented.

R7–5 Federal courts should develop practice notes explaining the duties that litigation representatives have to the person they represent and to the court.

R7–6 The Law Council of Australia should consider whether the Australian Solicitors’ Conduct Rules and Commentary should be amended to provide for a new exception to solicitors’ duties of confidentiality where:

(a) the solicitor reasonably believes the client is not capable of giving lawful, proper and competent instructions; and

(b) the disclosure is for the purpose of: assessing the client’s ability to give instructions; obtaining assistance for the client in giving instructions; informing the court about the client’s ability to instruct; or seeking the appointment of a litigation representative.

R7–7 The Evidence Act 1995 (Cth) should be amended to provide that a person is not ‘competent to give evidence about a fact’ if the person cannot be supported to:

(a) understand a question about the fact; or

(b) give an answer that can be understood to a question about the fact.

R7–8 The Evidence Act 1995 (Cth) should be amended to provide that a person who is ‘competent to give evidence about a fact’ is not competent to give sworn evidence if the person cannot understand that he or she is under an obligation to give truthful evidence, and cannot be supported to understand.

R7–9 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support is entitled to give evidence in any appropriate way that enables them to understand questions and communicate answers.

R7–10 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support has the right to have a support person present while giving evidence, who may act as a communication assistant; assist the person with any difficulty in giving evidence; or provide the person with other support.

R7–11 Federal courts should develop bench books to provide judicial officers with guidance about how courts may support persons with disability in giving evidence. 

R7–12 The Federal Court of Australia Act 1976 (Cth) should provide that a person is qualified to serve on a jury if, in the circumstances of the trial for which that person is summonsed, the person can be supported to:

(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings and jury deliberations;

(b) retain that information to the extent necessary to make these decisions;

(c) use or weigh that information as part of the jury’s decision-making process; or

(d) communicate the person’s decisions to the other members of the jury and to the court.

R7–13 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that the trial judge may order that a communication assistant be allowed to assist a juror to understand the proceedings and jury deliberations.

R7–14 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that communication assistants, allowed by the trial judge to assist a juror, should:

(a) swear an oath or affirm to faithfully communicate the proceedings or jury deliberations; and

(b) be permitted in the jury room during deliberations without breaching jury secrecy principles, providing they are subject to and comply with requirements for the secrecy of jury deliberations.

R7–15 The Federal Court of Australia Act 1976 (Cth) should provide for offences, in similar terms to those under ss 58AK and 58AL of the Act, in relation to the soliciting by third parties of communication assistants for the provision of information about the jury deliberations, and the disclosure of information by communication assistants about the jury deliberations.

Restrictive Practices

R8–1 The Australian Government and the Council of Australian Governments should take the National Decision-Making Principles into account in developing the national quality and safeguards system, which will regulate restrictive practices in the context of the National Disability Insurance Scheme.

R8–2 The Australian Government and the Council of Australian Governments should develop a national approach to the regulation of restrictive practices in sectors other than disability services, such as aged care and health care.  

Electoral Matters

R9–1 The Commonwealth Electoral Act 1918 (Cth) should be amended to repeal:

(a) s 93(8)(a), which provides that a person of ‘unsound mind’ who is ‘incapable of understanding the nature and significance of enrolment or voting’ is not entitled to have their name on the electoral roll or to vote in any Senate or House of Representatives election; and

(b) s 118(4), which relates to objections to enrolment on the basis that a person is of ‘unsound mind’.

R9–2 State and territory governments should repeal ‘unsound mind’ provisions in their electoral legislation and make other changes consistent with those recommended by the ALRC with respect to the Commonwealth Electoral Act 1918 (Cth).

R9–3 Section 245 of the Commonwealth Electoral Act 1918 (Cth) on compulsory voting should be amended to provide that it is a ‘valid and sufficient reason’ for not voting if a person cannot:

(a) understand information relevant to voting at the particular election;

(b) retain that information for a sufficient period to make a voting decision;

(c) use or weigh that information as part of the process of voting; or

(d) communicate their vote in some way.

R9–4 The Australian Electoral Commission should provide Divisional Returning Officers with guidance and training, consistent with the National Decision-Making Principles, to help them determine if a person with disability has a valid and sufficient reason for failing to vote.

R9–5 Section 234(1) of the Commonwealth Electoral Act 1918 (Cth) should be amended to provide that if any voter satisfies the presiding officer that he or she is unable to vote without assistance, the presiding officer shall permit a person chosen by the voter to assist them with voting.

R9–6 The Australian Electoral Commission should provide its officers with guidance and training, consistent with the National Decision-Making Principles, to improve support in enrolment and voting for persons who require support to vote.

R9–7 The Australian Electoral Commission should investigate methods of maintaining the secrecy of votes of persons who require support to vote.

Review of State and Territory Legislation

R10–1 State and territory governments should review laws and legal frameworks concerning individual decision-making to ensure they are consistent with the National Decision-Making Principles and the Commonwealth decision-making model. In conducting such a review, regard should also be given to:

(a) interaction with any supporter and representative schemes under Commonwealth legislation;

(b) consistency between jurisdictions, including in terminology;

(c) maximising cross-jurisdictional recognition of arrangements; and

(d) mechanisms for consistent and national data collection.

Any review should include, but not be limited to, laws with respect to guardianship and administration; consent to medical treatment; mental health; and disability services.

Other Issues

R11–1 Sections 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) should be amended to remove the references to ‘being mentally incapable’ and instead provide that ‘real consent’ is not given if ‘a party did not understand the nature and effect of the marriage ceremony’.

R11–2 The Guidelines on the Marriage Act 1961 for Marriage Celebrants should be amended to reflect the removal of the reference to ‘mental incapacity’ in the Marriage Act 1961 (Cth) and to provide further guidance on determining whether or not a person can ‘understand the nature and effect of the marriage ceremony’.

R11–3 Sections 201F(2), 915B and 1292(7)(b) of the Corporations Act 2001 (Cth) should be amended to remove references to ‘mental incapacity’, ‘being incapable, because of mental infirmity’ and ‘mental or physical incapacity’. Instead, the provisions should state that a person is not eligible to act in the roles of director, auditor or liquidator, or a financial services licence holder, if they cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in performing the role;

(b) retain that information to the extent necessary to make those decisions;

(c) use or weigh that information as part of the process of making decisions; or

(d) communicate the decisions in some way.

R11–4 The Australian Government should review and replace provisions in Commonwealth legislation that require the termination of statutory appointments by reason of a person’s ‘unsound mind’ or ‘mental incapacity’.