Cameras

Yet another illicit domestic surveillance incident, with the Age reporting that Ballarat Magistrates Court has heard that a man allegedly concealed surveillance cameras in skirting boards at his ex-wife's home and attached a GPS tracker to her car.

 The man was accused of installing a camera in the bathroom and  bedroom at the family home, reportedly telling police "it was for his own safety". The Court was told that the surveillance cameras were  linked to a VCR recording device. 

The cameras were found in June 2014 after the former couple's daughter found a listening device in the house, a discovery that allegedly caused an argument that ended the relationship. The recording device was placed in the house to hear what the victim was "saying to people about him behind his back". The man admitted ownership of the GPS tracking device, allegedly discovered after the victim took her car into an electrical specialist in Ballarat,  but denied attaching it to the victim's car. The Age reports that an envelope with five GPS coordinates of five locations recently visited by the woman, allegedly in the man's handwriting, was also found.

The man is charged with recklessly causing injury, stalking, use of a listening device and contravening an interim family violence intervention order.

He allegedly entered the house on June 12 and attacked the woman in her bedroom, jumped on her chest and tried to tape her mouth.  The court heard that after a short struggle the man allegedly tried to place a pillow over the woman's face before she broke free and calmed the accused down, forcing him to leave the property.

Magistrate  Holzer commented that the "bizarre, sophisticated and protracted" allegations, if proven, could potentially attract a jail term.

Vulnerability

'Vulnerability Theory and the Role of Government' by Nina A. Kohn in (2014) 26(1) Yale Journal of Law & Feminism comments -

In a political climate in which the role of government is actively being questioned, Martha Fineman’s “vulnerability theory” is rapidly gaining momentum as a justification for expansive social welfare laws. Despite the growing body of literature applying vulnerability theory to a broad range of legal problems, scholars have yet to critically explore the theory’s limitations. This article fills that void by analyzing the theory’s utility and scope. It shows how examining vulnerability theory through the lens of old-age policy reveals the theory’s limited prescriptive value and its tendency — as currently articulated — to promote unduly paternalistic policies. It then describes how vulnerability theory could be refined to provide greater respect for individual liberty and to enhance its value as a tool for defining the appropriate role of government. Finally, it argues that, although Fineman’s theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a useful construct around which to design social policy.

Kohn states -

The government’s role in allocating resources among the populace has long been a source of contention. Questions are raised not only about how the government redistributes resources, but also, more fundamentally, about the extent to which and even whether government should do so. The United States Supreme Court and mainstream political discourse have historically answered such questions by suggesting that the scope of the government’s responsibility is limited: although the government may choose to redistribute resources through taxation and the creation of social welfare policies, the government is generally not obligated to do so. Rather, the government’s primary social welfare obligation is to protect individuals against wrongful discrimination and ensure that all individuals are treated alike in the eyes of the law.

This “formal equality” approach to understanding the role of government has been heavily criticized for failing to achieve substantive equality. The primary thrust of this critique has been that the formal equality approach fails to achieve substantive equality: when pre-existing advantages and disadvantages of social groups differ, merely applying the same legal rules to those groups often produces unequal results.

Like treatment under the law therefore does not guarantee social equality.

Out of this debate, Martha Fineman’s “vulnerability theory” is emerging as an influential and powerful new critique of formal equality and as an alternative framework for understanding substantive equality. It proposes that vulnerability is inherent to the human condition, and that governments therefore have a responsibility to respond affirmatively to that vulnerability by ensuring that all people have equal access to the societal institutions that distribute resources. The theory thus provides an alternative basis for defining the role of government and a justification for expansive social welfare policies.

Vulnerability theory is rapidly gaining acceptance within the legal academy as progressively-oriented scholars rush to apply the theory to a broad range of legal problems. The theory is attractive not only because it helps explain the basis for broad social welfare policies, but also because it suggests that vulnerability can replace group identity (e.g., race, gender, poverty) as a basis for targeting social policy. At a time when legal scholars are increasingly questioning the law’s use of identity-based criteria such as gender and race, in part because of greater appreciation for the impact of “intersectionality” (i.e., the way an individual’s multiple identities interact to shape his or her experiences), Fineman’s claim of creating a “post-identity” approach is provocative and attractive.11 Despite an emerging body of literature applying vulnerability theory, the theory has just begun to be substantively critiqued by other scholars.12 Moreover, to date, no scholars other than Fineman have attempted (at least in published form) to refine it. As a result, current applications of the theory tend to proceed in a manner that is less critical and less nuanced than might otherwise be possible.

This article attempts to fill that void by examining the theory’s utility and limitations and then suggesting how the theory could be modified to enhance its value as an intellectual underpinning for social welfare law. Specifically, it argues that vulnerability theory provides a helpful framework for understanding social responsibility and the role of the state. However, it also shows how Fineman’s own work applying vulnerability theory to old-age policy reveals the theory’s limitations as a prescriptive tool and its tendency—at least as currently articulated—to promote excessively paternalistic laws and policies. Finally, it argues that, although Fineman’s theory of vulnerability does not indicate how to allocate resources among vulnerable individuals, vulnerability may nevertheless be a viable basis for policy intervention.

The article proceeds with five major parts. Parts II and III describe vulnerability theory and its value to those designing social policy. Part IV discusses how Fineman’s application of vulnerability theory to old-age policy reveals the underlying limitations of vulnerability theory, and raises serious concerns about its potential impact. Part V suggests how vulnerability theory could be refined in order to remedy its current tendency to promote unduly paternalistic laws, and to enhance its value as a framework for defining the role of government. Finally, Part VI explores how a vulnerability-based approach to social policy might serve as an alternative to an identity-based approach

SCADA

Not quite cybergeddon.

The NSW Auditor-General's Office has produced a report on Security of critical IT infrastructure, examining whether the systems used to operate and manage critical infrastructure in the Sydney metropolitan water supply system and the NSW traffic signal network are secure and, if systems go down, whether there are sound recovery arrangements in place.

The report notes

Systems used to control critical infrastructure are known as process control systems or operational technology. Previously, these types of systems were isolated from other networks and the security of these systems depended largely on restricting access to their physical infrastructure. However, in the last two decades their interconnectivity with other networks, for operational purposes, has increased the risk of unauthorised users obtaining access to these systems and disrupting reliable operation of critical infrastructure.

To illustrate, in June 2010, an anti-virus security company reported the first detection of malicious software (malware) that attacks process control systems. The malware is called Stuxnet and it has been found on hundreds of systems internationally. In August 2013, a security research company in the United States created a decoy water utility system; it experienced 74 security attacks from more than 16 countries. Ten of the attacks were deemed to have the ability to take complete control of the mock system. In 2000, a disgruntled former employee compromised a control system and caused the dumping of 800,000 litres of untreated sewage into waterways in Maroochy Shire, Queensland.

It goes on the conclude

Roads and Maritime Services 

Roads and Maritime Services (RMS) and Transport for NSW (TfNSW) have deployed many controls to protect traffic management systems. However the systems in place to manage traffic signals are not as secure as they should be. Established controls are only partially effective in detecting and preventing incidents and are unlikely to support the goal of a timely response to limit impacts to traffic management.

A range of risks are adequately managed, however, there are other risks where control improvements are recommended. For example, there is a potential for unauthorised access to sensitive information and systems that could result in traffic disruptions, and even accidents in one particular section of the road network.

Management has designed and tested an emergency response capability for the Traffic Management Centre (TMC) for some disaster scenarios and has recently identified and initiated improvements for responding to IT related disasters.

Until the IT disaster recovery site is fully commissioned, a disaster involving the main data centre would have traffic controllers operating on a regional basis without the benefit of intervention from the TMC in managing traffic coordination, which means higher congestion is likely in the short term.

Sydney Water Corporation

Sydney Water Corporation (SWC) is well equipped to deal with the impact of security incidents. It has developed and tested procedures for security incidents and major outages and has provided relevant training to staff. It has established a back-up operations centre which is tested on a regular basis, and also established redundant systems such as additional control units and backup power supplies for selected key facilities.

Whilst SWC’s response capability is good, it is limited by its inability to detect all security breaches. Controls to prevent and detect breaches are not as effective as they could be. Controls have been implemented to limit a number of risks, however, the protection environment requires improvement to defend against targeted attacks. For example, any malicious activity on most of the corporate network is blocked from accessing the process control system environment but control level access is possible from selected low security workstations on the corporate network.

Key recommendations are

RMS and TFNSW, by July 2015, should:

1. Extend the Information Security Management System (ISMS) to oversee the security of the complete traffic management environment, including operational level risks.

2. Develop a comprehensive security plan for the whole environment.

3. Improve the identification, assessment and recording of security risks.

4. Improve logging and monitoring of security related events regarding access to applications, operating systems and network access.

5. Improve security zoning to better protect the system from potential threats.

 SWC, by July 2015, should:

6. Extend the Information Security Management System (ISMS) to oversee the security of the process control environment, including the management of operational level risks and controls.

7. Develop a comprehensive security plan for the whole environment (building on SWC’s SCADA security policy).

8. Document and undertake additional risk mitigation to reduce risks to acceptable levels, and clearly document what levels of risk can be tolerated.

9. Obtain current documentary evidence to indicate that the risks associated with the security of process control systems at Prospect Treatment Plant are mitigated to acceptable levels.

10. Determine the appropriate controls to limit unauthorised access to computer accounts including SCADA application software and computer operating systems.

Other government agencies with critical infrastructure should seek to determine whether there are lessons from this audit that may apply to their area of government services/business. This includes ensuring: 

11. The organisation’s ISMS covers business processes and technology including systems used to control infrastructure.

12. Compliance with the NSW Government Digital Information Security Policy (DISP). For State Owned Corporations, this requirement should be incorporated into their Statements of Corporate Intent.

13. A comprehensive security plan is maintained for technical systems supporting critical government services where the system requires additional protection above the baseline controls utilised for the remainder of the agency’s systems.

14. Management receives and acts on information security/availability risk assessments that define the current and target risk levels.

 The Office of Finance and Services, NSW Treasury, should:

15. Ensure lessons learnt in this audit are communicated to all relevant government agencies

16. Undertake regular reviews to ensure that relevant agencies are complying with the Digital Information Security Policy and that the policy is meeting its objectives.

AI and Personhood

'Machine Minds: Frontiers in Legal Consciousness' by Evan Joseph Zimmerman argues that

Research is at the point where we might have to confront the possibility of what computer scientists call “strong AI” in the coming years. A strong AI could be intelligent by most reasonable definitions of the word, and possibly have a subjective experience. It stands to reason that we must seriously consider whether such a machine should have its will recognized, protected, and enabled. That is to say, such a sufficiently advanced machine might be said to carry responsibilities, and rights, on its own, as a legal person.

This question is wrapped up in significant philosophical and technical questions of acceptability and feasibility. The novelty of this Essay is that it provides a positive reason to grant such rights with a basis in technical law, along with a concrete definition and justification for personhood. The organizing principle this Essay arrives at is: Personhood exists to protect conscious individuals from suffering and allow them exercise their wills, subject to their intelligence.

This Essay examines several documents across a variety of fields, as well as historical records. Examples such as corporate law, personhood law, slavery law, and standing law demonstrate that the story of person-hood is a history of grappling with what is fully conscious, and how to allow these consciousness’s to exercise their will and avoid pain. However, because law was made by and for humans, by examining the law surrounding animal welfare and humans in a vegetative state, one finds that the law privileges humanity. Hence, our laws imply that a computer, if it is intelligent enough, should be considered conscious; however, our laws as they are would arbitrarily not provide it personhood simply because it is not made of flesh and blood.

Zimmerman states -

In one episode of that ever-prescient television show, Star Trek: The Next Generation, the android Data’s right to refuse to be dismantled for research purposes is questioned. Data is an android that is one-of-a-kind in its (the crew calls it “his”) intelligence, and is treated by his crew as a living being with feelings. Despite this, a scientist wants to dissect Data despite the fact that this could destroy data’s personality, which causes Data to refuse the procedure. In response, the scientist claims that as a robot, Data is Star Fleet’s property, and thus has no rights to refuse any procedure. A court case ensues, in which one side appeals to, essentially, a form of species solipsism; organic beings are known to be life, and as Data is an android, he is thus clearly not alive. The opposing side argues that Data has feelings, and that his consciousness is as difficult to prove as any other person’s. At stake is the potential destruction of Data’s soul, which is not likely to survive the procedure. The argument, of course, is over whether such a thing even exists.

The complexity of computers, particularly with their potential to become intelligent, raises profound legal questions. Although computers may not become brilliant overnight, several observers of the field consider such a thing a serious possibility, and technology has shown itself to be unpredictable. Despite the quip that artificial intelligence is always ten years away, a breakthrough may be just around the corner, and the law should be prepared. It is extremely important that this matter is treated wisely, carefully, and with an eye on the emerging future moving at the speed of light and imagination. Proper care depends on our ability to abstract beyond our own experiences, as a being need not think like us for it to be said that it is thinking. It also requires knowledge—though not necessarily expertise!—of difficult technical issues.

Those in software circles are fond of saying that “Technology moves fast, and the law moves slow.” The likes Europe’s Luddites litter the 19th century. Yet, in the 21st, it seems impossible to avoid the fact that machines outfitted with advanced computational power form an increasingly large part of our lives and are changing more quickly than ever: in homes, in vehicles, at work, in the air. Many in the technology industry believe that machines have changed in front of our eyes as the law seems to have hardly noticed. Often the technologies are so complicated that the regulations, may seem to our tech observer as built on an incomplete or faulty understanding, inadequate, cumbersome, outdated upon pronouncement, and obstructionist in the reality. Whether or not this is true, outside of a few articles in the past two decades, the literature has mostly not addressed the issue of artificial intelligence and personhood.

Any such judgment(s) will have to hinge on consciousness. The point of the law is not to protect tools. It is to ensure the protection and allow the full life of those who can feel, even if, like for animals, in degrees, and even if those feelings are alien yet almost inconceivably compared to our own. A different type of being need not think the same way as a human being for it to be said that it is thinking, and consequently to be deserving of privileges and protections. Surely it carries obligations and liabilities; so, why not rights? Consequently, consciousness is the key factor in determining the legal status of intelligent computers. A recognition of this requires a willingness to admit that there are serious philosophical questions that the law may not be able to address, but be forced to consider anyways. It is important to address these issues long before we have to scramble to piece together a last-minute solution, while we have years to consider the question. These are very pressing concerns that address the core of our legal system, and by highlighting and thinking about them now, perhaps for the first time in a long time, the law can be prepared for when technology arrives.

Unlike the previous literature, instead of negating reasons for denying personhood, it discusses an affirmative reason to grant it, and instead of approaching it philosophically, this Essay considers the technical legal standpoint. I examine case law and influential historical conceptions of personhood, including corporate personhood, and liability to determine that personhood is intended to privilege consciousness, as it has a will and can feel pain. By examining case law and statute for such issues as slavery, women’s suffrage and education, corporate personhood, vegetative state humans, children, and animals, to conclude that personhood exists in a tiered form, even if sometimes we dare not speak its name. Furthermore, popular historical justification is used to suggest that the basis for such stratification is the level of intelligence, i.e., the complexity and depth of the subjective experience of, the persons in question.

In Section I, this Essay frames the issue for future scholars considering such cases by explaining how these sophisticated machines work with a technology primer. In Section II, this Essay provides working legal definitions for terms like “intelligence” and “consciousness” that a court could use without forcing it to take a position in perhaps the most significant and ancient debate in human society, that is, how to assess consciousness. In Section III, this Essay examines the historical record, statutes, and case law to assess what personhood really is, and then whether machines should be granted personhood, and contrasts my conclusion with the existing literature. The main thrust of this Essay is ultimately to answer this question: Could a machine be a legal person, and is the law currently able to withstand the intellectual challenge of an intelligent machine?

Psychological Disability

The Australian Bureau of Statistics has released a report on data from the 2012 ABS Survey of Disability, Ageing and Carers (SDAC).

The SDAC is

designed to measure the prevalence of disability in Australia, as well as inform around the socio-economic characteristics and the need for support by people with disability. 

It deals with psychological disability in terms of people who reported:

• A nervous or emotional condition which causes restrictions in everyday activities that has lasted, or is expected to last for six months or more; or 
• A mental illness for which help or supervision is required that has lasted, or is expected to last for six months or more; or 
• A brain injury, including stroke, which results in a mental illness or nervous and emotional condition which causes restrictions in everyday activities. 

The ABS indicates that key results were -

• Of all people with any type of disability, 18.5% had a psychological disability. 
• 3.4% of Australians (770,500 people) reported having a psychological disability, with similar rates for men and women. This was an increase from 2.8% (606,000 people) in 2009. 
• For women, the prevalence of psychological disability increased steadily with age, with a rate of one in every five women aged 85 years and over (20.2%). Although prevalence generally increased with age, there was a significant decrease for women aged 65-74 years (3.3%) whose rate was on par with women aged 35-44 years (2.9%). 
• For men, there was a higher prevalence (compared with women) in the younger age groups, with boys aged 0-14 years three times as likely as girls of a similar age to have a psychological disability (2.2% compared with 0.7%), attributed to the higher prevalence of autism in males in this age group. Overall, the prevalence for men also increased with age.
• Of those people with a psychological disability,  four in ten reported profound levels of core activity limitation, and a further two in ten reported severe core activity limitations. 
• A wide range of long-term health conditions and impairments coexist with psychological disability -  the majority of people who reported a psychological disability reported having one or more other disabling conditions. 
• 96% of people with psychological disability reported needing assistance or experiencing difficulty in at least one of the broad activity areas of everyday life. 
• 1.8% of people with psychological disability who reported needing assistance did not have their need met at all.
• There is lower participation in education and employment for people with psychological disability, compared with those with no disability.

Disclosure

'Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future' by Scott R. Peppet in (2011) Northwestern University Law Review comments 

Information technologies are reducing the costs of credible signaling, just as they have reduced the costs of data mining and economic sorting. The burgeoning informational privacy field has ignored this evolution, leaving it unprepared to deal with the consequences of these new signaling mechanisms. In an economy with robust signaling, those with valuable credentials, clean medical records, and impressive credit scores will want to disclose those traits to receive preferential economic treatment. Others may then find that they must also disclose private information to avoid the negative inferences attached to staying silent. This unraveling effect creates new types of privacy harms, converting disclosure from a consensual to a more coerced decision. This Article argues that informational privacy law must focus on the economics of signaling and its unraveling of privacy.

Peppet states -

Every day that Tom Goodwin drives his Chevy Tahoe, his insurance company uses a small electronic monitor in his car to track his total driving time, speed, and driving habits. If he drives less than ten thousand hours a year, doesn’t drive much after midnight, and avoids frequently slamming on the brakes, at the end of the year he receives up to twenty-five percent off his premiums. “There’s this Big Brother thing, but it’s good,” Goodwin says. “Since I know I’m being watched, I’m on my best behavior.” To date, Progressive Insurance’s MyRate program is available in twenty states and has enrolled roughly ten thousand customers. Other insurance companies are following suit. Some carriers are going further, offering discounts for the use of more sophisticated devices that record geographical location, minute-by- minute speeding violations, and whether seat belts are in use. Rental car companies have also experimented with using such monitors to incentivize safe driving.

Similarly, every day the Mayo Clinic in Rochester, Minnesota uses remote monitoring devices to check up on the health of residents at the nearby Charter House senior living center. The devices transmit data about irregular heart rhythm, breathing rate, and the wearer’s position and motion. “The goal,” says Dr. Charles Bruce, the lead investigator on the project, “is to have full remote monitoring of people, not patients, just like you measure the pressure of your tires today.” Medical device companies are racing to enter the remote monitoring space. Proteus Biomedical, for example, is testing a wearable electronic device that can sense when patients have taken their pills and transmit that information to the patients’ doctors, and GlySens is working on an implantable subcutaneous blood sugar sensor for diabetics that uses the cellular network to constantly send real time results to one’s doctor. Although today these devices do not report data to users’ health insurers, it would be a simple step for a patient to provide such access in return for a discount. Indeed, such “pervasive lifestyle incentive management” is already being discussed by those in the healthcare field.

Finally, every day tenants, job applicants, and students voluntarily disclose verified personal information to their prospective landlords, employers, and safety-conscious universities using online services such as MyBackgroundCheck.com. Rather than forcing these entities to run a background check, an applicant can digitally divulge pre-verified information such as criminal record, sex offender status, eviction history, and previous rental addresses. Moreover, these services allow an applicant to augment her resume by having verified drug testing done at a local collection site and added to her digital record. MyBackgroundCheck.com calls this “resume enhancement.”

This Article makes three claims. First, these examples—Tom Goodwin’s car insurance, pervasive health monitoring, and the incorporation of verified drug testing into one’s “enhanced resume”— illustrate that rapidly changing information technologies are making possible the low-cost sharing of verified personal information for economic reward, or, put differently, the incentivized extraction of previously unavailable personal information from individuals by firms. In this new world, economic actors do not always need to “sort” or screen each other based on publicly available information, but can instead incentivize each other to “signal” their characteristics. For example, an insurance company does not need to do extensive data mining to determine whether a person is a risky driver or an unusual health risk—it can extract that information from the insured directly. Second, this change towards a “signaling economy” (as opposed to the “sorting economy” in which we have lived since the late 1800s) poses a very different threat to privacy than the threat of data mining, aggregation and sorting that has preoccupied the burgeoning informational privacy field for the last decade. In a world of verifiable information and low-cost signaling, the game-theoretic “unraveling effect” kicks in, leading self-interested actors to disclose fully their personal information for economic gain. Although at first consumers may receive a discount for using a driving or health monitor, privacy may unravel as those who refuse to do so are assumed to be withholding negative information and therefore stigmatized and penalized. Third, privacy law and scholarship must reorient towards this unraveling threat to privacy. Privacy scholarship is unprepared for the possibility that when a few have the ability and incentive to disclose, all may ultimately be forced to do so. The field has had the luxury of ignoring unraveling because technologies did not exist to make a signaling economy possible. Those days are over. As the signaling economy evolves, privacy advocates must either concede defeat or focus on preventing unraveling. The latter will require both a theoretical shift in our conception of privacy harms and practical changes in privacy reform strategies.

The Article’s three Parts track these claims. Part I explores the emerging signaling economy. In the signaling economy, individuals and firms can seek out verified, high-quality, low-cost data from each other directly rather than searching through mountains of unverified, low-quality information. Developments in information technology make information increasingly verifiable, and thus increasingly useful as signals in conditions of information asymmetry. I propose a simple metaphor to capture the extreme possibilities of this signaling economy: the “personal prospectus.” The personal prospectus would be a compilation of an individual’s verified private information about themselves — a digital repository containing the data collected from the sensors and drug tests in the previous examples (and the many other innovative monitors undoubtedly around the corner), plus information from one’s bank accounts, educational records, tax history, criminal history, immigration records, health records, and other private sources. It would be the aggregate of all of one’s private tests, records, and history in one massive digital resume, sharable with others at the click of a button.

The personal prospectus provides a useful means to explore the limits and possibilities of this new signaling economy. It also illustrates the shortcomings of existing privacy law and scholarship. Part II takes up the Article’s second claim: that even the first steps we are now taking towards a signaling economy—steps like those in the three examples above—pose a new set of privacy challenges previously largely ignored.

Richard Posner first articulated these challenges decades ago, although at the time they were more theoretical than practical. Even with control over her personal information, he argued, an individual will often find it in her self interest to disclose such information to others for economic gain. If she can credibly signal to a health insurer that she does not smoke, she will pay lower premiums. If she can convince her employer that she is diligent, she will receive greater pay. As those with positive information about themselves choose to disclose, the economic “unraveling effect” will occur: in equilibrium, all will disclose their information, whether positive or negative, as disclosure by those with the best private information leads to disclosure even by those with the worst.

The classic example of unraveling imagines a buyer inspecting a crate of oranges. The quantity of oranges in the crate is unknown and opening the crate before purchase is unwise because the oranges will rot before transport. There are stiff penalties for lying, but no duty on the part of the seller to disclose the number of oranges in the crate. The number of oranges will be easy to verify once the crate is delivered and opened. The buyer believes that there can’t be more than one hundred oranges. The unraveling effect posits that all sellers will fully disclose the number of oranges in the crate, regardless of how many their crate contains. Begin with the choice faced by a seller with one hundred oranges in his crate. If the seller stays silent, the buyer will assume there are fewer than one hundred oranges and will be unwilling to pay for the full amount. The seller with one hundred oranges will therefore disclose and charge full price. Now consider the choice of a seller with ninety nine oranges. If this seller stays quiet, the buyer will assume that there are fewer than ninety nine oranges and will discount accordingly. The silent seller gets pooled with all the lower-value sellers, to his disadvantage. He will therefore disclose. And so it goes, until one reaches the seller with only one orange and the unraveling is complete. As Douglas Baird, Robert Gertner and Randal Picker put it, “[s]ilence cannot be sustained because high-value sellers will distinguish themselves from low-value sellers through voluntary disclosure.” The economist Robert Frank coined the term the “full disclosure principle” to describe this phenomenon in his classic text Passions Within Reason. The principle is simple: “if some individuals stand to benefit by revealing a favorable value of some trait, others will be forced to disclose their less favorable values.”

In the decades since Posner’s challenge, however, privacy law has almost entirely overlooked the threat of unraveling. Instead, recent informational privacy scholarship has focused on the privacy threats of firms sorting individuals by mining aggregated public data such as credit histories. Informational privacy law has reacted to sorting becoming more commonplace and sophisticated. The field is dominated by Daniel Solove’s concept of the “digital dossier,” which is a metaphor for the aggregate of information available online about a given person. Privacy scholars fear that we are moving towards a world in which everything becomes public—where all of our personal information becomes easily available to others as part of our digital dossier. In reaction to this fear, the literature is replete with calls to give individuals greater control20 over their personal information through the common law of property and tort and through stronger statutory privacy rights.

The personal prospectus poses a different threat than Solove’s digital dossier, however, and it demands different solutions than increased control over one’s information. In a signaling economy, even if individuals have control over their personal information, that control is itself the undoing of their privacy. Because they hold the keys, they can be asked—or forced—to unlock the door to their personal information. Those who refuse to share their private information will face new forms of economic discrimination. How long before one’s unwillingness to put a monitor in one’s car amounts to an admission of bad driving habits, and one’s unwillingness to wear a medical monitor leads to insurance penalties for assumed risky behavior? In a signaling economy, forced disclosure will be as or more difficult a problem as data mining and the digital dossier. Part III thus begins to reorient informational privacy law towards the threats of signaling and unraveling. Unlike Posner, however, I do not assume that unraveling necessarily leads to the end of privacy. Instead, Part III explores both the economic limits of the unraveling effect—what empirical investigation has shown us about the conditions necessary for unraveling—and the legal means available to constrain unraveling. In particular, it examines the three possible legal responses to the unraveling of privacy—“don’t ask,” “don’t tell,” and “don’t use” rules—and explores their limitations and implications. I conclude that although constraining the unraveling of privacy is possible, it will require privacy advocates to move well beyond their traditional focus on increasing information control. Instead, the privacy field must wrestle directly with the problems of paternalism inherent in limiting the use of information that at least some consumers may want to disclose for economic advantage. Limiting blood glucose monitoring by insurers may protect the privacy of the least healthy diabetics who might otherwise be forced to disclose by the unraveling effect, but such limits will impose costs on the most healthy and conscientious patients who would otherwise receive discounts for wearing a glucose monitor. How will legislatures respond to consumer pressure for the right to disclose? If to date the informational privacy field has been unable to muster legislative support even for increasing control over personal data, how persuasive will it be when faced with these more difficult prescriptive debates?

Part III offers the first comprehensive exploration of these questions. This discussion is extremely timely, because as the signaling economy develops, courts and legislatures are increasingly wrestling with these problems. The most prominent example is the recent health care bill, the Patient Protection and Affordable Care Act (PPACA). Incentive-based health insurance premiums were a central battleground in the give-and-take leading up to the PPACA’s passage. The PPACA’s § 2705 increases the degree to which employers and insurers can use discounts on health insurance premiums to incentivize employees to participate in wellness programs and try to achieve specified personal health goals. Disease advocacy groups fought for various limitations on the use of incentives, but, intriguingly, privacy advocates were largely absent from the debate. The privacy field seems to have assumed that the only privacy issues in the bill arose in the context of the use and security of electronic health records. This is a mistake. Incentives to signal raise exactly the questions to which informational privacy law must turn: questions of justice, fairness, paternalism and power; questions about coercion and the limits of “voluntary” disclosure; questions, in short, about how to deal with the threat of privacy’s unraveling.

Workplace Drug Testing

'A workplace drug testing act for Australia' by Jason Grant Allen, Jeremy Prichard and Lynden Griggs in (2013) 32(2) The University of Queensland Law Journal comments

 Testing employees on a mandatory basis for alcohol and illicit drugs in the workplace in Australia is not uncommon. However, in those industries where it does occur, such as mining, transportation, and correctional services, and with the understanding that the employer does have the right to insist that the employees be tested, what are the corresponding obligations vis-a-vis the employees' privacy and safety. What our analysis will show is that while privacy remains the prevalent employee concern, workplace drug testing can be justified for reasons of employer productivity, safety within the workplace, and the integrity expected of employees within industries where the community would be adversely sensitive to any notion that the employees were not observing the legal and moral code expected of law-abiding citizens (exemplars would be the police and those serving in correctional facilities). But justification alone is not enough. Workplace drug testing needs to be supported by appropriately argued and supported parameters as to when it can occur, how it can occur, what can be tested, and what can be done with the results. It is only by specifying these boundaries that we as a community will support and accept the intrusive nature of workplace drug testing. Law must have a role in setting those limits. To date the decisions on this practice have failed to do this.

This article proceeds in four parts. Section 1 reviews the literature on drug use in Australia and its estimated financial impact on Australian industry. It traces the development of workplace drug testing and outlines the employee privacy concerns that, to this day, remain the most compelling argument against the practice. Section 2 presents our tri-partite approach to justifying workplace drug testing. The elements that are drawn out by the literature, by experience, and by intuition in promoting the use of workplace drug testing are: productivity, safety, and integrity. But we also note that further bases may be relevant, most notably, third-party and public economic loss and environmental harm. It will be these principled elements that we consider will provide the foundation of legislative reform. Section 3 briefly outlines the sources of current regulation in Australia, including contract law, labour law, occupational health and safety law, anti-discrimination law and industry-specific legislation and précises why, even in conjunction, they have failed to provide a normative architecture that achieves an appropriate balance between employee interests and employer concerns that compel workplace drug testing. Having outlined the extent of workplace drug testing, the framework for its existence and the concerns with current regulation, the final section sketches the principles that underlie the form and content of a Workplace Drug Testing Act and a Workplace Drug Testing Regulation that we argue is necessary.

The authors conclude -

WDT is a defensible response to certain heads of concern, including productivity, OHS and integrity. Other concerns, while perhaps relevant, are by their nature too broad and are ill-suited to circumscribe fitting parameters for WDT practice. Other concerns are inappropriate as a basis on which to test workers for drug and alcohol use, in particular criminal drug law enforcement. WDT theory and practice must continue to reflect its context of employment law by remaining focussed on factors truly relevant to the employment relationship. Whatever those parameters are, WDT must occur within parameters that are more clearly specified. The limits of WDT are to be determined by reference to employees’ privacy interests, on the one hand, as against employers’ legitimate interests and public interests on the other. We have suggested that these interests can be organised under the three heads of justification we have identified. Every justification is, by nature, limited; by starting with the justification and working through a rational process of risk assessment, it is possible to define in each case just how far the risk identified will carry the argument for WDT into the realm of employee privacy. The nature of this task means that the answer will change dependent on the circumstance of each particular workplace, but basic standards can be established across the board.

For this reason, legislation is desirable in Australia to regulate the growing WDT industry. While the traditional sources of law have provided some normative framework for WDT practice, they are insufficient to ensure that WDT respect employee privacy while achieving its legitimate goals. In Australia, one of the major arguments for WDT legislation is the argument to certainty. It is undesirable to continue testing the acceptable parameters of WDT in the courts and tribunals. Industrial dispute litigation is disruptive and expensive. The situation is not ideal for employees, whose rights to privacy are without adequate protection. Likewise, employers are liable under OHS norms if they allow employee drug use to compromise workplace safety, yet they are also exposed to risk if the WDT programme they implement is too intrusive.

As to form, the legislation we advocate should take the form of a short, proscriptive, principle-based text. Following the OHS model, this could take the form of nationally uniform state legislation, or commonwealth legislation relying on the corporations’ power. Prescriptive WDT standards, in turn, should be provided in a regulation, reviewed and updated routinely by delegated authority. The text of the Act should centre on establishing the acceptable heads of WDT and the basic principles applicable to it. The Regulation should provide when employees may be tested and reference this back to the relevant head(s), what they may be tested for, how this is to be done and what may happen to an employee who fails a test. While prescriptive, this schedule should remain so concise as possible, in contrast to the industry-specific legislation that exists to date. It must be capable of general application across industries and employment sectors, and the more prescriptive detail that is provided, the less flexible such an instrument becomes. 

Once again, the science of testing has outpaced the legal response. We don’t seek to conclude the discussion, merely begin it. But our approach of a national response to a national problem through uniform state legislation presents, we suggest, a coherent, defensible and logical response that balances the needs of the employee working for, not at, the employer.

'How effective is drug testing as a workplace safety strategy? A systematic review of the evidence' by Ken Pidd and Ann Roche in (2014) 71 Accident Analysis and Prevention 154-165 comments

The growing prevalence of workplace drug testing and the narrow scope of previous reviews of the evidence base necessitate a comprehensive review of research concerning the efficacy of drug testing as a workplace strategy. A systematic qualitative review of relevant research published between January 1990 and January 2013 was undertaken. Inclusion criteria were studies that evaluated the effectiveness of drug testing in deterring employee drug use or reducing workplace accident or injury rates. Methodological adequacy was assessed using a published assessment tool specifically designed to assess the quality of intervention studies. A total of 23 studies were reviewed and assessed, six of which reported on the effectiveness of testing in reducing employee drug use and 17 which reported on occupational accident or injury rates. No studies involved randomised control trials. Only one study was assessed as demonstrating strong methodological rigour. That study found random alcohol testing reduced fatal accidents in the transport industry. The majority of studies reviewed contained methodological weaknesses including; inappropriate study design, limited sample representativeness, the use of ecological data to evaluate individual behaviour change and failure to adequately control for potentially confounding variables. This latter finding is consistent with previous reviews and indicates the evidence base for the effectiveness of testing in improving workplace safety is at best tenuous. Better dissemination of the current evidence in relation to workplace drug testing is required to support evidence-informed policy and practice. There is also a pressing need for more methodologically rigorous research to evaluate the efficacy and utility of drug testing.

The authors offer some cautions, commenting -

The lack of a sound evidence base for the efficacy of testing is at odds with the apparent growth in the use of testing as a workplace safety strategy. While the proportion of US employers who conduct testing has declined from a peak in the early to mid-1990s (Frone, 2013), indicating that some employers may no longer be convinced of the usefulness of testing, nearly half the US workforce report that their employer conducts some form of drug testing (Larson et al., 2007) and support for workplace testing appears to be increasing in other countries (Nolan, 2008; Pierce, 2012). 

There is no doubt that the growth in the prevalence of work-place testing is related to concerns about safety and productivity and advances in testing technologies in providing relatively reliable and objective indicators of potential past and recent use of most types of commonly used illicit drugs (Moore, 2011; Phan et al., 2012). However, the extent of support and interest in testing as a workplace strategy, in light of the poor evidence base for its efficacy, indicates that there may be other explanations for growth in testing. 

One alternative explanation may be successful marketing efforts by the drug testing industry. It has been estimated in the US and Canada that workplace testing is at least a $2billion a year industry and increasing (Grantham, 2012). Growth in the prevalence of workplace testing may also be due to compliance with new legislation and regulations. For example, the US (Frone, 2013), Europe (Pierce, 2012), and Australia (e.g., CASR, 1998) have introduced legislation mandating drug testing in particular industries. Similarly, many countries have occupational health and safety legislation and regulations that do not mandate testing, but contain provisions that may implicitly encourage testing. Hence, some employers may introduce testing in order to comply with relevant legislation and regulations regardless of their beliefs about the efficacy of testing. 

Previous research has also identified that workplace drug testing can perform a symbolic function by allowing employers to control employee behaviour and manage the reputation and image of the work organisation (Brunet, 2002; Cavanaugh and Prasad, 1994; Knudsen et al., 2003). For example, the introduction of drug testing in reaction to normative pressure from the media and public opinion concerning the ‘drug problem’ allows organisations to demonstrate values and concerns that are consistent with perceived social values and concerns of the wider community (Knudsen et al., 2003). Similarly, testing can operate as a social control mechanism that enables employers to reinforce the expectation that employees should not use illegal drugs (Borg, 2000). 

It is likely that all these factors have played a role in the increasing use of testing as a workplace strategy. As speculated elsewhere (Galea, 2013) drug testing is based on a logical and compelling idea (i.e., that testing can reduce drug related risk by deterring drug use among employees or identifying those that use drugs) and driven by wider social concerns regarding drug use, workplace drug testing has been implemented and support for it is growing regardless of the evidence base for its effectiveness.

Smart Meters

The NZ Privacy Commissioner has released a Case Note (No 251185, 2015) on Use of smart meters by utility companies.

The Note states in part -

All residential properties have meters which record total energy consumption at an address. Traditionally, these meters were analogue and needed to be manually checked each month by a meter reader.

Under the Electricity Industry Participation Code 2010, electricity companies must ensure existing metering equipment is recertified by 2015. Many companies are taking the opportunity to install advanced meters that collect data at frequent intervals and communicate that data directly to the electricity company.

We looked at the type of data being collected by advanced meters, whether this could identify users and, if so, what security safeguards were in place to protect that data.

‘Personal information’ in the Privacy Act is defined as information about an identifiable individual. It must tell the reader, or hearer, something about a particular person.

In its raw form, the data collected by advanced meters may not identify a particular person at all. The data collected in its raw form appears as a series of numbers like “20130542399”. No customer data is stored at the meter, ensuring that customers cannot be identified at the site.

Real time aggregate data is also useful to show when and where high and low demand for electricity, gas or water occur, and can assist in planning supply.

However, usage information collected from smart meters is personal information once it is associated with an account holder. This is particularly so if only one person lives at a residential address; any data collected from that address will also be about the resident/account holder. When more than one individual lives at an address the data is less likely to identify the power usage of one of those residents. However, it will be linked to the account holder. Power companies therefore will need to comply with the Privacy Act.

Once the raw data is translated to usage information, power companies need to ensure this information is appropriately stored and handled and access to the information is restricted to staff on a ‘need to know’ basis.

Advanced meters automate the collection process, and allow for the collection of more detailed information about electricity use. For example, it may show whether people are at home and may show when certain types of high energy appliances are used. We therefore consider that power companies need to take additional care in how they look after that information, and tell consumers how it will be used.

Even though power companies can collect more granular information about power usage, it doesn’t necessarily follow they can use that information for any purpose they choose. The Privacy Act still applies to personal information and the power companies should only be using the information for the purposes for which it was collected. Power companies should outline these purposes in their privacy policy.

They also need to have strong security standards to ensure information is transmitted safely online.

While the introduction of smart appliances and how this will interact with advanced metering technology is speculative at present, we believe that it has the potential to make the information from smart meters more valuable.

Research Ethics and Consent

'A Private Right of Action for Informed Consent in Research' by Valerie Gutmann Koch in (2015) 45(1) Seton Hall Law Review comments

Imagine your doctor tells you that a procedure involving removal of spinal fluid is necessary to diagnose your recurring headaches. He does not tell you — nor do you inquire about — the risks involved in the intervention, which include a very small risk of permanent partial paralysis. Unfortunately, paralysis occurs. American courts have established a rule of consent that provides that the physician has an affirmative duty to disclose the material risks inherent in the proposed therapeutic treatment or surgery. Thus, among other claims, you have a common law right to recover against the physician for failure to provide adequate informed consent.

Now imagine that, instead of seeking care from your physician, you have decided to become a participant in a research protocol that is intended to study the cause of recurring headaches. During the process of enrolling you in the study, the investigator does not tell you — nor do you inquire about — the risk of permanent partial paralysis. Again, unfortunately, paralysis occurs. Although the law governing human subjects research might lead the investigator to lose funding, no equivalent private right of action exists in the research context, and thus you are unlikely to be able to seek damages for the investigator’s failure to provide adequate informed consent.

Finally, consider a complicating detail to the latter scenario: the investigator, in the course of the study, runs a test on a biological sample that he removed during the procedure in order to study a hypothetical correlation between the headaches and a certain genetic defect. He discovers, incidentally, that you carry a gene that predisposes you to Alzheimer’s Disease. Although no law requires the investigator to tell you this information, there is an emerging general consensus that the investigator has an obligation to disclose such findings (or at least the possibility of such findings) to you, which could also potentially enable you to seek damages where the investigator fails to make the appropriate disclosures.

That a patient who is harmed by her doctor due to lack of informed consent has a right to recover is an established tenet of tort law. However, for historic reasons, such a right does not extend to a research participant who is harmed due to a lack of informed consent by the investigator in a research protocol. This distinction between the rights of certain individuals to seek remedies directly from those who neglected to communicate the risks of an intervention has been the subject of extensive literature on the doctrine of informed consent, although courts have generally been either unwilling or unable to extend a private right of action to research subjects.

Significantly, however, the typical research model has evolved since the most notable court efforts to find a duty of care, premised on a special relationship5 between the investigator and research participant. In contrast to research protocols that required more involved medical interventions, protocols that require minimally invasive procedures — e.g., a simple blood draw for a genetic test or the use of magnetic resonance imaging (MRI) — are much more the norm today. Further, with almost daily genetic and medical discoveries, there is an ever-increasing possibility of finding out information about the research participant that is beyond the scope of the protocol. Thus, this Article proposes that the emergence of genetic testing technologies, the proliferation of research involving biological samples, and the escalating use of medical imaging may further transform the relationship between the investigator and research participant. The right to recover for lack of informed consent is premised on the duty that arises out of the relationship between the discloser and the disclosee, which is grounded in the principle of autonomy. In the treatment context, when physicians fail to inform their patients about the risks of an intervention, patients who are then harmed by the undisclosed risks have recourse to a private right of action based in common law - a claim based on the failure to provide informed consent. At its foundation, this recourse is based on the primacy of the doctor-patient relationship and arises out of the provider’s duty to the patient. Breach of that duty - through failure to disclose information material to the patient’s decision to pursue treatment - allows the patient to recover damages.

In contrast, research subjects who are harmed by medical research have no such right of action. The most significant federal regulation related to human subjects research, the Common Rule, includes no private right of action for participants who are harmed as a result of investigators’ failure to disclose the risks of the research; instead, the penalty for violation of the regulations is typically loss of federal funding or suspension of the research. The lack of a private right of action for research harms is often attributed to the absence of a legally recognized relationship between the investigator and the participant. Consequently, this Article focuses on one element of tort liability — the duty of care — because of its centrality to the doctrine of informed consent and the principle of autonomy that it seeks to protect. Arguments for informed consent in both the treatment and research contexts, as well as for disclosure of incidental or secondary findings, are premised on the autonomy principle.

The evolution in the relationship between investigator and participant demonstrates the increasing need for a private right of action for failure to provide informed consent to research. Central to the contention of this Article, the emerging consensus that investigators have some obligation to disclose research findings to research participants reflects an appropriate response to the changing nature of the investigator-research participant relationship, rendering it more like the doctor-patient relationship. The emerging expectation that an investigator should disclose (or offer the research participant the opportunity to receive) findings that are secondary to the research protocol - potentially accompanied by the associated private right of action for failure to do so - makes the lack of obligation to disclose the primary risks of the research protocol itself (and the lack of direct recourse for failure to do so), even more obvious and challenging. Thus, this Article proposes that the ethical duty to disclose research findings represents a shift in the relationship between the investigator and research participant, which therefore supports a private right of action for research participants, who, like patients, are harmed by the failure to provide informed consent. However, the standard of care for such a private right of action for research need not - and probably should not - absolutely mirror the standard of care owed to patients in the clinical setting.

Part I of this Article explores the evolution of, and justification for, a private right of action for harms that occur due to failure to provide informed consent in the treatment environment but not the research setting. Part II then addresses the evolving research model and, in particular, the investigator-participant relationship generally, with a focus on the central principle of autonomy. The Article then turns, in Part III, to the subject of returning or disclosing research findings in research involving imaging and the testing of genetic and biological samples. Finally, Part IV recommends a modified approach to extending the common law claim for lack of informed consent to the research setting.

Greenwash

'Section 18 of the Australian Consumer Law and Environmental Issues' by Marina Nehme and Michael Adams in (2013) 24(1) Bond Law Review comments

The market for ‘green’ products has expanded drastically over recent years in response to increased consumer concerns about environmental issues. However, such expansion has been accompanied by unsavoury conduct by some producers and marketers of green products. A number of corporations, for example, have sought to exploit their environmental and corporate social responsibility credentials to confuse, mislead or even defraud customers or clients by marketing so-called ‘brown’ (or non-green) products as green products. This practice has been referred to as ‘greenwashing’. While Australia does not have specific legislation dealing with misleading environmental claims, it has developed a sophisticated approach to the regulation of misleading or deceptive conduct through the old s 52 of the Trade Practices Act 1974 (Cth), now s 18 of the Australian Consumer Law, and its many derivatives in other statutes. This article analyses the extent to which s 18 of the Australian Consumer Law and its federal statutory equivalents apply to the regulation of greenwashing.

The authors state

Around the world, consumers and citizens are increasingly concerned about environmental problems. As a consequence, they are becoming more and more conscious of the impact their purchasing decisions may have on the environment. This has led to a considerable expansion of the ‘green’ market over the last few years. For instance, the Australian market for sustainable products and services surged from AU$12 billion in 2007 to AU$21.5 billion in 2010. It has been predicted that, by the end of 2012, this market will be valued at AU$27 billion. 

In recent times green marketing has become popular as it may attract environmentally conscious consumers to buy green products at a premium price. Green marketing may be defined as the ‘marketers’ attempt to develop strategies targeting the “environmental consumer”. Such marketing campaigns have been used to sway public opinion and to endorse the green credentials of an organisation. For instance, a number of businesses have been promoting their green credentials for everything from carbon neutral wines to green cars, green clothing, and even green financial services. 

With the expansion of the green market, it is crucial to ensure that green marketing is properly regulated and monitored. This is especially important as green marketing may be accompanied by ‘greenwashing’, where a manufacturer or retailer promotes the green credentials of a product but overstates the benefits to the environment, and thereby potentially misleads the consumer. To date, no legislation in Australia specifically regulates this particular area of concern. As a result, a review of the general laws regulating misleading or deceptive conduct is required to determine the extent to which these laws currently provide protection to environmentally conscious consumers. 

A review of the law indicates that the last 40 years have seen the development of common law concepts such as negligence and misrepresentation. Further, legislative provisions dealing with misleading or deceptive conduct have been developed at both the Federal and State level. For example, the former Trade Practices Act 1974 (Cth) (TPA) introduced a balance between the civil action of misleading or deceptive conduct in s 52 and the criminal action of false or misleading representations in s 75AZC. Due to the limitations imposed on federal powers in the Australian Constitution, each State and Territory had to adopt its own fair trading legislation to reflect the federal law. 

The introduction in 2011 of the Australian Consumer Law (ACL) brings all consumer protection law in Australia under the one umbrella. Today, s 18 ACL has replaced s 52 TPA. However, overlapping provisions regarding misleading or deceptive conduct in the financial services area also exist in the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). 

This article examines how s 18 ACL and its federal statutory equivalents deal with greenwashing. Part II of this article discusses the concept of greenwashing and the problems it raises. Part III focuses on s 18 ACL and its federal statutory equivalents to assess whether such provisions are able to regulate greenwashing and prevent it from occurring. Lastly, Part IV provides a brief overview of the civil and administrative enforcement powers of the Australian Competition and Consumer Commission (ACCC) in this area and discusses the strategies the ACCC may employ to regulate greenwashing.

Terror

‘The New Terrorists: The Normalisation and Spread of Anti-Terror Laws in Australia’ by Rebecca Ananian-Welsh and George Williams in (2014) 38(2) Melbourne University Law Review comments

Since September 11, Australia’s federal Parliament has enacted a range of exceptional measures aimed at preventing terrorism. These measures include control orders, which were not designed or intended for use outside of the terrorism context. What has followed, however, has been the migration of this measure to new contexts in the states and territories, especially in regard to what some have termed the ‘war on bikies’. This has occurred to the point that this measure, once considered extreme, has become accepted as a normal aspect of the criminal justice system, and has in turn given rise to even more stringent legal measures. This article explores the dynamic by which once exceptional measures become normalised and then extended to new extremes. It explores these issues in the context of the role that constitutional values have played in this process. 

The authors argue

The ‘war on terror’ that arose after the September 11 attacks in the United States triggered an expansion of international1 and domestic legal frameworks directed at the prevention of terrorism. Today, that conflict appears to be waning, but in many respects the expanded frameworks remain intact. This is enabling processes of ‘normalisation’ by which such measures come to be treated as unexceptional, rather than as extreme measures that ought to be strictly limited in their application. In this form, they are more readily adapted to other areas of the legal system. Outside of the anti-terror context, the now-normalised measures can give rise to even more extreme laws that further challenge fundamental values. In this sense the legal responses to the war on terror can continue indefinitely outside of the anti-terror context and have a permanent impact on constitutional values.

We explore this dynamic by focusing on an Australian case study, namely the migration of control orders from the anti-terror context to the body of legislation that has emerged in what might be called a ‘war on bikies’. Control orders are civil orders that empower courts to impose a wide range of restrictions and obligations on an individual, such as curfews, limits on communication, and the like, for the purpose of preventing future criminal acts. A person may be the subject of a control order, and therefore subject to a deprivation of liberty, without any finding that they have transgressed the law. In this way, control orders operate independently of any concept of guilt or innocence.

We begin in Part II by introducing Australia’s response to the global threat of terrorism and the rhetoric of urgency, exceptionalism and war that attended the enactment of a host of anti-terror laws following the 9/11 attacks, including control orders. In Part III, we document the proliferation of control order-like schemes across Australia, tracing their migration from the antiterror context to the fight against serious and organised crime. This process of migration and subsequent normalisation has not gone unnoticed. Writing in 2010, Gabrielle Appleby and John Williams observed the ‘creep’ of anti-terror laws to the law and order context, and one of us writing with Nicola McGarrity said: ‘counter-terrorism laws have become a permanent fixture of the legal landscape. … Over time, what were once seen as extraordinary laws have become accepted as “normal”’.

Not only has the control order device itself migrated across contexts, but it has provided a vehicle for the more subtle migration of certain characteristic features of national security laws. Hence, the expanded use of secret evidence, crimes of association and preventive constraints on liberty have also gone through a similar process of normalisation.

In Part IV, we explore more recent developments that signal the next phase of the migration and normalisation process. In the ongoing political race to be ‘tough on crime’, the adaption of once-extreme measures has given rise to the extension of these measures into new, even more extreme territory. In Part V, we reflect on this process of migration, normalisation and extension and examine the role played by constitutional values in both checking and facilitating such trends.

Redress

The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse has released a 312 page consultation paper regarding redress and civil remedies.

The Commission's Terms of Reference require it to inquire into:

what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

The paper begins by stating -

Justice for victims

A number of survivors, and many survivor advocacy and support groups, have highlighted the importance to survivors of ‘fairness’ in the sense of equal access to redress for survivors and of equal treatment of survivors in redress processes. They regard equal access and equal treatment as essential elements if a redress scheme is to deliver justice.

Equality in this sense does not prevent recognition of different levels of severity of abuse or different levels of severity of impact of abuse. However, it does mean that the availability and type or amount of redress available should not depend on factors such as:

• the state or territory in which the abuse occurred 

• whether the institution was a government or non-government institution 

• whether the abuse occurred in more than one institution 

• the nature or type of institution 

• whether the institution still exists 

• the assets available to the institution.

We accept the importance to survivors of equality in this sense. We accept that many survivors and survivor advocacy and support groups will not consider that any approach to redress that we recommend is capable of delivering ‘justice’ unless it seeks to achieve equality or fair treatment between survivors.

Current failings

Institutional child sexual abuse can have a severe and sometimes lifelong impact on survivors. Survivors experience many difficulties in seeking redress or damages through civil litigation.

We have heard from survivors, survivor advocacy and support groups and others about the many difficulties that survivors experience in seeking redress or damages through civil litigation.

Individual experiences of inadequate or unobtainable redress should be placed in the broader context of a social failure to protect children. There was a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults coalesced to create the high-risk environment in which thousands of children were abused. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution they were part of, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society.

This broad social failure to protect children across a number of generations makes clear the pressing need to provide avenues through which survivors can obtain appropriate redress for past abuse.

The complexity of the task

Making findings and recommendations about redress is complex because of:

• what has already been done through past and current redress schemes, statutory victims of crime compensation schemes and civil litigation, with all the inconsistencies that have arisen 

• the range of existing support services available to survivors that may overlap with or supplement redress and the need for us to avoid making recommendations that might reduce resources for, or divert efforts from, existing support services 

• the breadth of our Terms of Reference through the definition of ‘institution’, which includes a far greater range of institutions than have been covered by past or current redress schemes; and the narrowness of our Terms of Reference in focusing on sexual abuse in an institutional context, in contrast to redress schemes that have typically also included physical abuse and neglect 

• the need to make recommendations that can be implemented and that are likely to be implemented, including taking account of the affordability of what we recommend.

Elements of redress

The elements of appropriate redress for survivors appear to be:

• a direct personal response by the institution if the survivor wishes to engage with the institution, including an apology, an opportunity for the survivor to meet with a senior representative of the institution and an assurance as to the steps the institution has taken, or will take, to protect against further abuse 

• access to therapeutic counselling and psychological care as needed throughout a survivor’s life, with redress to supplement existing services and fill service gaps so that all survivors can have access to the counselling and psychological care that they need 

• monetary payments as a tangible means of recognising the wrong survivors have suffered.

General principles for providing redress

The following general principles should guide the provision of all elements of redress: 

• redress should be survivor-focused – redress is about providing justice to the survivor, not about protecting the institution’s interests 

• there should be a ‘no wrong door’ approach for survivors in terms of gaining access to redress – whether survivors approach a scheme or an institution, they should be helped to understand all the elements of redress available and to apply for those they wish to seek 

• all redress should be offered, assessed and provided having appropriate regard to what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular, and to the cultural needs of survivors – all of those involved in redress, and particularly those who might interact with survivors or make decisions affecting survivors, should have a proper understanding of these issues and any necessary training 

• all redress should be offered, assessed and provided having appropriate regard to the needs of particularly vulnerable survivors and ensuring access to redress can be obtained with minimal difficulty and cost and with appropriate support or facilitation if required.

Possible structures for providing redress

We have identified three possible options for structures for providing redress.

Institutional schemes

One approach to redress would be for institutions to adopt a common approach to what should be available under each element of redress, how allegations of abuse should be determined and how any variable elements of redress should be calculated. This approach would be the quickest and easiest to implement. However, many survivors do not want to have to go to the institution in which they were abused to seek redress, some institutions no longer exist and many survivors were abused at more than one institution. To achieve equal or fair treatment between survivors and to avoid survivors having to apply to the institution in which they were abused or make more than one application for redress, it is necessary to devise a structure for redress that provides an independent ‘one-stop shop’ for survivors – that is, it requires all institutions to participate in one redress process.

National or state and territory schemes

It is apparent that governments must participate in the redress process to meet claims of survivors abused in government institutions. Beyond this, however, it is likely that substantial government leadership will be required to establish a redress process in which governments and non-government institutions will participate. Options are a national redress scheme or separate state and territory schemes. There are arguments in favour of a national scheme, but there are also complications that arise from the different starting points of the different states and territories in coming to a single national redress scheme. These differences probably could be reconciled, but it is unlikely to be a quick or easy process to negotiate. There are also benefits and risks in recommending separate state and territory redress schemes. The ideal position for survivors would be a single national redress scheme led by the Australian Government and with the participation of state and territory governments and non-government institutions. However, the ideal position will be difficult to reach if the Australian Government does not favour it or if the state and territory governments do not favour it.

If the ideal position is not favoured or reasonably achievable, each state or territory could establish a single redress scheme for the state or territory, with the participation of relevant governments (the Australian Government will need to participate in some schemes) and non-government institutions. The state and territory schemes could be established in accordance with the principles recommended by the Royal Commission, which would operate as a national framework or principles to achieve reasonable national consistency across the elements of redress (that is, direct personal response, counselling and psychological care and monetary payments) and redress scheme processes. If there are to be state and territory schemes, there may be benefit in establishing a national advisory body to share information, encourage consistency, advise on implementation and discuss any concerns raised about particular schemes.

Past and future abuse

Our Terms of Reference require us to consider both past and future institutional child sexual abuse. We use ‘past child sexual abuse’ to refer to child sexual abuse that has already occurred or that occurs between now and the date that any reforms we recommend to civil litigation commence. We use ‘future child sexual abuse’ to refer to child sexual abuse that occurs on or after the date that any reforms we recommend to civil litigation commence. Many of the difficulties that survivors have encountered in trying to obtain adequate redress to date, whether through redress schemes or civil litigation, have arisen from the power imbalance between institutions and survivors. If any reforms we recommend to civil litigation are adopted, they may contribute to a substantial change in this power balance. A redress scheme for future abuse may be unnecessary if recommendations are made and adopted that make it more likely that survivors can recover damages at common law and if we make recommendations under other parts of our Terms of Reference that aim to minimise the occurrence of future abuse. It might also be difficult to identify with confidence now what might be sought by survivors long into the future.

Children

Some children, or parents or guardians on their behalf, will wish to seek redress or compensation for institutional child sexual abuse while the victim is still a child. It is unlikely that there will be many applications to a redress scheme made by or on behalf of those who are still children, as children are more likely to be able to obtain compensation through civil litigation. However, there is no reason why children could not be accommodated within the sort of structures and approaches raised in this consultation paper. We welcome submissions that discuss the issues raised in Chapter 2. In particular:

• we seek the views of the Australian Government and state and territory governments on whether they favour a single, national redress scheme led by the Australian Government or an alternative approach 

• we welcome submissions on whether we should recommend redress processes and outcomes for future institutional child sexual abuse.

Data

To date, very little data on redress and compensation paid to victims of child sexual abuse in institutions in Australia have been publicly available. To address this gap and to improve our understanding of redress outcomes to date, we have collected data from a number of sources, often under summonses or notices to produce. We set out the sources of the data we have obtained and then present our analysis of different datasets. We obtained claims data under notice from governments, Catholic Church Insurance Ltd (CCI), and the Eastern and Southern Territories of The Salvation Army. The data cover claims of child sexual abuse resolved in the period from 1 January 1995 to 30 June 2014. The data cover claims resolved through litigation, out-of-court settlement and otherwise. The claims data are analysed as follows:  number of claims by year of resolution (Table 3 and Figure 1); compensation in real dollars (2013) by years of claim resolution, including the mean (or average), median, minimum and maximum payments, and in 20 per cent payment bands (Table 4 and Figures 2 and 3). We obtained data on key elements of the following government redress schemes:  Redress WA and WA Country High School Hostels ex gratia scheme; Queensland ex gratia scheme; Tasmanian Abuse in Care ex gratia scheme; South Australian payments under Victims of Crime Act 2001 (SA).

We obtained data of particular relevance to redress and civil litigation from our private sessions held between 7 May 2014 and 31 August 2014. The private sessions data are analysed as follows:  abuse by number of institutions (Table 10), which shows how many private session attendees reported abuse in one institution, two institutions and three or more institutions; abuse by institution type (Table 11) which shows the types of institutions in which private session attendees reported they were abused.

Direct personal response

Many survivors of child sexual abuse in an institutional context have told us how important it is to them, and their sense of achieving justice, that the institution makes a genuine apology to them, acknowledges the abuse and its impacts on them and gives a clear account of steps the institution has taken to prevent such abuse occurring again. Many survivors also want an opportunity to meet with a senior representative of the institution to tell their story. They want a senior representative of the institution to understand the impacts of the abuse on them. Some survivors have had positive experiences when engaging with the institution in which they were abused; others have not. It is clear from many of our private sessions that this direct personal response from the institution can be a very important step in providing redress for a survivor. A personal response can only come from the institution. An apology and acknowledgment from the institution, or a meeting with senior representatives of the institution, must involve the institution itself.

Principles for an effective direct personal response

The following principles may be appropriate for an effective direct personal response:

• Re-engagement between a survivor and institution should only occur if, and to the extent that, a survivor desires it. Some survivors will want to re-engage with the institution in which they were abused. Other survivors may not want to engage or interact with the institution at all. 

• Institutions should make clear what they are willing to offer and provide by way of direct personal response. They should ensure that they are able to provide what they offer. Further harm may be caused to survivors when institutions are unclear about what they are willing to provide or fail to provide what they offer. 

• At a minimum, all institutions should offer and provide on request by a survivor: o an apology o an opportunity to meet with a senior representative of the institution o an assurance as to steps taken to protect against further abuse. These are three elements of any direct personal response that our work to date indicates are essential. Every institution should be able to provide at least this level of response. 

• In offering direct personal response, institutions should try to be responsive to survivors’ needs. There is no ‘one size fits all’ approach to an appropriate personal response. Institutions should recognise the diversity of survivors and their needs in terms of a direct personal response. They should be responsive to those needs where possible. 

• Institutions that already offer a broader range of direct personal responses to survivors and others should consider continuing to offer those forms of direct personal response. Some institutions currently offer a broad range of services to survivors, including: o assistance with gaining access to records o family tracing and family reunion o memory projects o collective forms of direct personal response such as memorials, reunions and commemorative events o culturally appropriate collective redress for Aboriginal and Torres Strait Islander survivors. 

• Direct personal response should be delivered by people who have received some training about the nature and impact of child sexual abuse and the needs of survivors. Institutional staff may also require cultural awareness or sensitivity training to support particular survivor groups. 

• Institutions should welcome feedback from survivors about the direct personal response they offer and provide. This will help to ensure that the direct personal response is as effective as possible in meeting survivors’ needs and expectations. Interaction between a redress scheme and direct personal response An appropriate personal response can only be provided by the institution and cannot be provided through a redress scheme independent of the institution. An independent redress scheme could facilitate the provision of the direct personal response. For survivors who seek a written apology but wish to have no further contact with the institution, an independent redress scheme may be able to convey their request to the institution so that they do not need to have any further contact with it themselves.

Any other forms of direct personal response would require direct contact between the survivor and the institution. A redress scheme could facilitate the pursuit of a direct personal response by offering survivors the choice between having their details passed on to the institution with a request that the institution contact them directly or being given the contact details of the relevant person in the institution so that the survivor can initiate contact with the institution. We welcome submissions that discuss the issues raised in Chapter 4, including the principles for an effective direct personal response and the interaction between a redress scheme and direct personal response. Counselling and psychological care The effects of child sexual abuse on mental health functioning have been well documented. These effects are many and varied and affect survivors in many ways including:  at the individual level: mental health and physical health; at the interpersonal level: emotional, behavioural and interpersonal capacities; at the societal level: quality of life, opportunity. Many survivors will need counselling and psychological care from time to time, throughout their lives. Survivors’ needs for counselling and psychological care should be singled out from the broader range of needs and addressed through redress as a necessary part of ensuring justice for victims.

Principles for counselling and psychological care

The following principles may be appropriate for the provision of counselling and psychological care:

• Counselling should be available throughout a survivor’s life. The trauma associated with sexual abuse is not a specified medical condition that can be cured at a specific point in time so that it will not reoccur. 

• Counselling should be available on an episodic basis. Counselling is not necessarily needed continuously throughout a survivor’s life. 

• Survivors should be allowed flexibility and choice. Different groups of survivors have differing needs in terms of counselling and psychological care. Survivors also have differing needs at an individual level. 

• There should be no fixed limits on services provided to a survivor. The needs of survivors are complex and varied and there should be no fixed limit on the number of counselling sessions available to a survivor per episode of care. 

• Psychological care should be provided by practitioners with the right capabilities to work with complex trauma clients. 

• There should be suitable ongoing assessment and review. For good clinical outcomes, and to appropriately target limited resources, a suitable process of initial assessment and ongoing review is required for each episode of counselling or psychological care. 

• Counselling and psychological care should be available through redress for family members if it is necessary for the survivor’s own treatment and there are no other sources of funding available.

Current services and service gaps

There are many services that currently provide counselling and psychological care to survivors. Most members of the general population will access mainstream services as an initial point of contact for assistance to address their psychosocial needs, whether or not these issues are associated with childhood sexual abuse. These services include in-patient, out-patient and community-based mental health services, alcohol and drug rehabilitation services, and primary health services. The Australian Government supports two primary health care initiatives that may be of particular use to survivors, principally through funding under Medicare. The Australian Government also supports specialist psychiatric services by providing unlimited funding through Medicare for these services. There are many specialist services, most of which receive extensive government funding. Specialist services include sexual assault services, which provide specialised and targeted therapeutic care for victims of sexual assault; support services for adults who, as children, were in out-of-home care, including Former Child Migrants; and Aboriginal and Torres Strait Islander organisations, which provide support targeted at Indigenous people, particularly members of the Stolen Generations. Some institutions provide counselling and psychological care as part of the redress they provide to survivors.

Despite the many services currently assisting survivors with counselling and psychological care, key gaps are as follows:

• resource limitations of specialist services, particularly specialist sexual assault services 

• restrictions on access to Medicare, including the need for ‘an assessed mental disorder’, a GP referral and Mental Health Treatment Plan, the focus on shorter-term interventions and the charging of gap fees 

• gaps in expertise, including where practitioners do not have the right capabilities to work with complex trauma clients 

• gaps in services for specific groups, including for survivors in regional and remote areas and Indigenous survivors. Principles for supporting counselling and psychological care through redress The following principles may be appropriate for supporting the provision of counselling and psychological care through redress: 

• Redress should supplement existing services rather than displace or compete with them. It may be counterproductive to the quality and choice of counselling and psychological care available to survivors to put pressure on governments to redirect funding from existing services into a stand-alone counselling scheme provided through redress. 

• Redress should provide funding, not services. A redress scheme would not establish its own counselling and psychological care service for survivors. By providing funding, flexibility and choice for survivors is supported. 

• Redress should fund counselling and psychological care as needed by survivors. Funding should be provided to service providers as survivors need care rather than as a lump-sum component of a monetary payment to individual survivors. 

• Institutions should fund the counselling and psychological care where possible.

Our Terms of Reference refer to the ‘provision of redress by institutions’. A case can be made for full public provision of counselling and psychological care, but it may be necessary to recognise government funding of existing services and look primarily to non-government institutions to provide the funding for supplementing services through redress.

Options for service provision and funding

There are a number of options for ensuring that survivors’ needs for appropriate counselling and psychological care are met. Public provision of counselling and psychological care could be expanded by substantially expanding Medicare-funded services. To address the difficulties that survivors may experience with Medicare, a number of changes could be made to Medicare – for example, removing the need for ‘an assessed mental disorder’, a GP referral and Mental Health Treatment Plan, and the cap on services. There are precedents for these changes to Medicare. However, this would require services to be made available through Medicare based on a person’s status as an eligible survivor, not based only on need. We acknowledge the Australian Government’s position that equal and universal access to medical services based on clinical need is a fundamental principle of Medicare. The public provision of counselling and psychological care could be expanded by establishing a dedicated stand-alone Australian Government scheme. While this approach would also single out survivors based on where the abuse occurred, it would not interfere with the principle of universality under Medicare. There are examples of existing stand-alone Australian Government schemes.

Another option is to create a trust fund as part of the redress scheme to hold funds to be used to supplement existing services and fill service gaps to ensure that survivors’ needs for counselling and psychological care are met. A trust fund could take actions to supplement existing services and fill service gaps, including by improving survivors’ access to Medicare; exploring with state-funded specialist services whether the trust could provide funding to increase the availability of services and reduce waiting times for survivors; and addressing gaps in expertise and geographical and cultural gaps. As an essential last resort, the trust fund could also fund counselling and psychological care, particularly for survivors whose entitlements under Medicare have been exhausted or whose needs for counselling and psychological care cannot otherwise be met.

We welcome submissions that discuss the issues raised in Chapter 5, including the principles for counselling and psychological care, existing services and service gaps and the principles for supporting counselling and psychological care through redress.

In particular:  we seek the views of the Australian Government and state and territory governments on options for expanding the public provision of counselling and psychological care for survivors; we welcome submissions on the relative effectiveness and efficiency of the options in meeting survivors’ needs.

Monetary payments

A monetary payment is a tangible means of recognising a wrong that a person has suffered. A redress scheme for survivors should include a monetary payment.

Purpose of monetary payments

The purpose or meaning of ex gratia payments is not always easy to identify. Identifying and clearly stating the purpose of ex gratia payments in a redress scheme is important in:

• helping claimants, institutions and other participants understand the purpose of the scheme 

• informing choices about the processes that should be adopted for the scheme 

• helping claimants to understand what any payment they are offered is meant to represent and to assess whether or not they should accept any payment.

The purpose of a monetary payment should have some connection with the amount of the monetary payment.

Monetary payments under other schemes

Any monetary payments offered under a new scheme will be assessed in the context of what has gone before, including under former and current state government schemes in Tasmania, Queensland, Western Australia and South Australia; non-government institution schemes such as Towards Healing, Melbourne Response and the Salvation Army Eastern Territory scheme; statutory victims of crime compensation schemes; and overseas schemes such as the Irish Residential Institutions Redress Scheme. The claims data also provide information about monetary payments to date.

These schemes have assessed monetary payments on a range of bases and provided a range of minimum, maximum and average payments. Almost all of these schemes cover types of abuse other than sexual abuse, including physical abuse and neglect. For example:

• the Tasmanian Government scheme made 1,848 payments, with a minimum payment of $5,000, a maximum payment of $60,000 and an average payment of $30,000 

• the Queensland Government scheme made 7,168 payments, with a minimum payment of $7,000, a maximum payment of $40,000 and an average payment of $13,000 

• the larger Western Australian Government scheme, Redress WA, made 5,302 payments, with a minimum payment of $5,000, a maximum payment of $45,000 and an average payment of $23,000 

• as at 16 June 2014, the South Australian Government scheme had made 82 payments, with an average payment of $14,400 

• according to the data summonsed by the Royal Commission, under Towards Healing 881 known payments were made between 1 January 1995 and 30 June 2014, with an average payment of $48,300 

• according to the data summonsed by the Royal Commission, under the Melbourne Response 310 known payments were made between 1 January 1995 and 30 June 2014, with an average payment of $38,800 

• according to data summonsed by the Royal Commission, The Salvation Army Eastern and Southern Territories made 478 known payments between 1 January 1995 and 30 June 2014, with an average payment of $49,100 

• maximum payments available under statutory victims of crime compensation schemes range from $15,000 to $75,000 

• as at 17 December 2014, the Irish Residential Institutions Redress Scheme had made some 15,547 payments, with the largest payment being €300,500 (around $423,000 in Australian dollars based on January 2015 exchange rates) and an average payment of €62,237 (around $88,000 in Australian dollars based on January 2015 exchange rates).

A possible approach

Assessment of monetary payments

In our consultations to date, there has been strong support for adopting a table or matrix that would take account of the severity of the abuse and the impact of abuse. There was also recognition that there may be other aggravating factors that should be considered. We have no fixed view on what form a table or matrix should take at this stage. A possible table or matrix could provide for the assessment of severity of abuse, severity of impact and distinctive institutional factors as follows:

[Table ES1 omitted]

Amounts of monetary payments

In our consultations to date, participants have found it difficult to nominate a maximum amount for monetary payments. Many participants also grappled with the issue of affordability. We have no fixed view on what the payments should be at this stage. For the purposes of this consultation paper, we commissioned actuarial modelling of the following possibilities, each with a minimum payment of $10,000 and: a maximum payment of $100,000, a maximum payment of $150,000, a maximum payment of $200,000. For each of these maximum payment levels, our actuarial advisers have modelled how payments could be distributed to achieve average payments of $50,000, $65,000 or $80,000. Monetary payments at these levels would be higher than the amounts available under previous state government redress schemes, both at the minimum, maximum and average amounts.

Actuarial modelling

We are publishing Finity Consulting Pty Limited’s actuarial report to us in conjunction with releasing this consultation paper so that all interested parties can understand the detail of the actuarial advice that has informed our work on monetary payments and funding. It is published on the Royal Commission’s website. Finity Consulting have used a variety of data for their modelling, particularly detailed data from Redress WA. For the purpose of looking at a possible distribution of payments, the total number of eligible survivors who will make a claim for payment under a redress scheme has been estimated to be 65,000. The chart below shows the possible spread of payments when the maximum payment is set at $100,000 and the average payment is $50,000 (blue), $65,000 (yellow) or $80,000 (grey).

[Figures ES1 to 3 omitted].

Different maximum payments can be set without affecting the total cost of payments – that is, the cost of payments is affected by the average cost rather than the maximum cost. A scheme with an average payment of $65,000 will have the same total cost of payments, regardless of whether the maximum payment is set at $100,000, $150,000 or $200,000.

Within any given range of minimum and maximum payments, the higher the average payment, the greater the relevant proportion of total payments will be directed to those less seriously affected by abuse – that is, those with a lower total assessment determined under the table or matrix. In contrast, the lower the average payment the greater the relative proportion of total payments will be directed to those most seriously affected by abuse – that is, those with a higher total assessment determined under the table or matrix.

Other payment issues

Survivors may experience difficulties in receiving lump-sum payments that are much larger than the amounts of money they are used to handling. However, many survivors want to receive a lump-sum payment. A redress scheme could provide an option for monetary payments to be paid to survivors in instalments rather than as a lump sum if this option would be taken up by many survivors. It would involve additional administrative costs for the scheme. Many survivors have already received redress through previous and current government and non-government redress schemes, including statutory victims of crime compensation schemes. Some survivors have received monetary payments through civil litigation. In our consultations to date, there has been support for the principle that those who have already received monetary payments should remain eligible to apply under a new scheme, provided that any previous payments are taken into account.

[table omitted]

We welcome submissions that discuss the issues raised in Chapter 6, including the purpose of monetary payments. In particular, we welcome submissions on:

• the assessment of monetary payments, including possible tables or matrices, factors and values 

• the average and maximum monetary payments that should be available through redress 

• whether an option for payments by instalments would be taken up by many survivors and whether it should be offered by a redress scheme 

• the treatment of past monetary payments under a new redress scheme.

Redress scheme processes

For a redress scheme to work effectively for all parties, its processes must be efficient. They must be focused on obtaining the information required to determine eligibility and calculate monetary payments, and then making that determination and calculation fairly and in a timely manner. Previous and current redress schemes provide many examples of effective and less effective processes.

Eligibility for redress

An effective redress scheme must clearly define eligibility for the purposes of the scheme. Eligibility refers to the criteria that determine whether a person is able to obtain redress through the scheme. This requires consideration of: the types of institutions included; the connection required between the institution and the abuse; the type of abuse included; any cut-off date by which the abuse must have occurred; whether those who have already received redress may apply.

Duration of a redress scheme

Whether a redress scheme is open-ended or has a fixed closing date has significant implications for survivors who may be eligible for the scheme and for those responsible for funding and administering the scheme. Given that fixed closing dates create significant difficulties for survivors and particularly risk excluding eligible survivors, a scheme should not be subject to a fixed closing date.

Publicising and promoting the availability of the scheme

A key feature of an effective redress scheme is a comprehensive communication strategy. This strategy should ensure that the availability of the scheme is widely publicised and promoted. Particular communication strategies are needed for people who might be more difficult to reach.

Application process

The application process for redress should be as simple as possible while obtaining the information necessary to assess eligibility and determine the amount of any monetary payment. A scheme may require additional material or ‘evidence’ and additional procedures to determine the validity of claims if it has higher maximum or average payments available. A scheme should fund a number of support services and community legal centres to assist applicants to apply for redress.

Institutional involvement

Decisions about redress should be made by a body independent of the institutions. The scheme should provide any institution that is the subject of an allegation with details of the allegation. It should seek from the institution any relevant records, information or comment. If an allegation is made against a person who is still involved with the institution, the institution may have to act on the allegation independently of any issues of redress.

Standard of proof

The standard of proof used in a scheme determines the degree to which a decision maker must be satisfied of an allegation in order to accept it as true. Current and previous redress schemes have adopted different standards of proof. There are arguments against adopting a standard of proof used in civil litigation. A plausibility test or a test of reasonable likelihood may be more appropriate.

Decision making on a claim

A national or separate state and territory redress schemes should provide sufficient independence of decision making from the institutions in which abuse occurred. Administrative decision making, with levels of delegation, seems appropriate. A mix of legal, medical, psychosocial and similar skills, including experience in issues relating to institutional child sexual abuse, is likely to ensure that properly informed decisions are made.

Offer and acceptance of offer

Once a decision has been made on an application, the applicant should be provided with a statement of decision. The scheme could encourage (and pay for) applicants to have an additional consultation with their support service or community legal centre before deciding whether or not to accept the offer. If a deed of release is to be required on acceptance of an offer, the scheme should require (and pay for) applicants to receive legal advice before they accept the offer. Offers should remain open for acceptance for at least three months.

Review and appeals

Review and appeals processes for redress schemes appear to depend in large part on how they are established. A redress scheme could offer internal review to the applicant. It may be appropriate to leave external review or appeal rights for the decision of those establishing the scheme.

Deeds of release

We have heard very different views on whether or not a deed of release should be required. At the very least, an applicant should be required to agree that the value of any redress should be offset against any common law damages and that, if common law damages are obtained, the applicant will cease to be eligible for any counselling and psychological care through redress. This approach may not go far enough. If a deed of release is required, the scheme should fund a legal consultation for the applicant before the applicant decides whether or not to accept the offer of redress and sign the deed of release. There should be no confidentiality obligation imposed on survivors. The scheme would be subject to any relevant privacy obligations.

Support for survivors

A redress scheme should offer counselling during the scheme from assistance with the application through the period when the application is being considered to the making of the offer and the applicant’s consideration of whether or not to accept the offer. A redress scheme should also consider offering a limited number of counselling sessions for family members, particularly in cases where survivors are disclosing their abuse to their family for the first time in the context of the redress scheme.

Transparency and accountability

A redress scheme should be transparent and accountable, including by:

• making its processes and timeframes as transparent as possible 

• allocating each applicant to a particular contact officer who they can speak to with any queries 

• operating a complaints mechanism and welcoming any complaints or feedback 

• publishing data, at least annually, about applications and their outcomes.

Interaction with alleged abuser, disciplinary process and police

Past and current redress schemes have adopted different approaches to whether and how they interact with the alleged abuser, institutional disciplinary processes and the police. If any alleged abusers are, or may be, still working or otherwise involved with the institution, the institution should pursue its usual investigation and disciplinary processes when it receives advice from the scheme about the allegations. The scheme must comply with any legal requirements to report or disclose the abuse. A scheme should also seek to cooperate with any reasonable requirements of the police. We welcome submissions that discuss the issues raised in Chapter 7, including any aspects of redress scheme processes.

In particular, we welcome submissions on:

• eligibility for redress, including the connection required between the institution and the abuse and the types of abuse that should be included 

• the appropriate standard of proof 

• whether or not deeds of release should be required.

Funding redress

Funding required for redress

Funding for redress would require funding sufficient for the counselling and psychological care and monetary payments elements of redress, as well as the administration costs of the redress scheme. Funding also needs to take account of amounts already spent on providing redress to the extent that these would reduce funding requirements under a new scheme.

Our actuarial advisers have conducted modelling of the funding needs across states and territories. They have estimated the breakdown between government-run institutions and non-government-run institutions. Our actuarial advisers have not been able to estimate the cost of counselling and psychological care already provided to survivors through existing support services. If this amount can be estimated, it should be deducted from the counselling and psychological care amounts below. For the purpose of this consultation paper, we have included the modelling based on an average monetary payment of $65,000. The modelling of costs based on average monetary payments of $50,000 and $80,000 is set out in the actuarial report, which is published on the Royal Commission’s website. The monetary payment amounts below have been adjusted to take account of amounts already spent on providing redress under past and current redress schemes. The following table shows the total estimated cost by jurisdiction and by government and non-government institutions.

[Table ES2 omitted]

Australian Government funding contributions may be relevant to: government-run institutions, if the Australian Government ran an institution or under its broader social or regulatory responsibilities; non-government run institutions, under its broader social or regulatory responsibilities. Clearly the total funding would not be required immediately upon establishment of a scheme. Our actuarial advisers have modelled a possible pattern of claims and funding requirements as follows.

[Figure ES4 omitted]

This modelling of the funding needs is based on the estimate of 65,000 eligible claimants. Our actuarial advisers have also shown the impact on costs if there are 45,000 or 85,000 eligible claimants. This is set out in their actuarial report, which is published on the Royal Commission’s website.

Possible approaches to funding redress

Our Terms of Reference refer to the ‘provision of redress by institutions’. A reasonable starting point for funding redress may be that the institution in which the abuse occurred should fund the cost of:

• counselling and psychological care, to the extent it is provided through redress 

• any monetary payment 

• administration in relation to determining the claim.

We know that some institutions in which abuse is alleged to have occurred no longer exist. Where those institutions were part of a larger group of institutions, or where there is a successor to those institutions, it might be reasonable to expect the larger group of institutions or the successor institution to fund the costs described above.

The breakdown in funding requirements between government and non-government institutions in the actuarial modelling takes account only of whether or not an institution was run by a government. However, there are other bases on which governments could be considered responsible for institutions and conduct within them. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. The broad social failure to protect children across a number of generations makes clear the pressing need

to provide avenues through which survivors can obtain appropriate redress for past abuse. In addition to this broader social responsibility, governments may also have responsibilities as regulators and as guardians of children. There will be cases where institutions in which abuse occurred no longer exist and they were not part of a larger group of institutions or there is no successor institution. There will also be cases where institutions that still exist have no assets from which to fund redress. Possible options for who might fulfil the ‘funder of last resort’ role are the institutions that fund redress (both government and non-government), or governments, or some combination of the two. Arguments can be made in support of governments being funders of last resort on the basis of governments’ social, regulatory and guardianship responsibilities. The extent to which governments might take on some or all of the responsibility for funding of last resort might depend in part upon actions they have already taken on redress.

Our actuarial advisers have estimated the adjustments to the government and non-government shares of the estimated total costs for redress if governments were to act as funders of last resort.

[Table ES3 omitted]

Different starting points between the states and territories might influence contributions to funding for redress. It seems that some flexibility is likely to be needed in order to allow adequate funding for redress to be secured efficiently and with appropriate recognition for what has already been done. The following principles may provide some guidance for implementation:

• Whether a single national redress scheme or a system of separate state and territory redress schemes is favoured, the relevant government or governments could propose a scheme structure that would enable the scheme to make decisions or recommendations about eligibility for the scheme and any amount of monetary payment to be offered. 

• Non-government institutions that are expected to be subject to a number of claims for redress could be invited to participate with the relevant government or governments in developing the scheme. These non-government institutions could be participants in the scheme from the start. 

• Other non-government institutions could participate in the scheme if and when either they or the scheme receive an application for redress for abuse in the relevant institution. 

• The relevant government and non-government institutions that are initial participants in the scheme from the start could fund the administrative costs of the scheme. Other non-government institutions that participate in the scheme, if and when an application for redress in respect of abuse in relevant institution is received, could pay a reasonable fee for use of the redress scheme. 

• If a system of separate state and territory redress schemes is favoured, in states and territories where the Australian Government has or had particular regulatory responsibility for some children the Australian Government and the relevant state or territory government could negotiate a reasonable contribution by the Australian Government to offset the funding responsibilities of the state or territory government. 

• If a system of separate state and territory redress schemes is favoured, where the Australian Government itself operated an institution it could participate in the relevant state or territory scheme just as any non-government operator of an institution would participate. 

• Each government could be a funder of last resort for its scheme or it could negotiate with or require non-government institutions to contribute funding of last resort. 

• Governments could also determine whether or not to require non-government institutions, or particular types of non-government institutions, to fund a redress scheme. 

• Governments would also have to determine how to fund their contributions to redress.

We welcome submissions that discuss the issues raised in Chapter 8, including the modelling of required funding and the possible approaches to funding redress. In particular, we seek the views of the Australian Government, state and territory governments and institutions on:

• appropriate funding arrangements 

• appropriate funder of last resort arrangements 

• the level of flexibility that should be allowed in implementing redress schemes and funding arrangements.

Interim arrangements

Commissioners have agreed to make findings and recommendations on redress and civil litigation by the middle of 2015. However, no matter how quickly we report, it will inevitably take some time to implement our recommendations. The amount of time may be greater if larger or more complex structures are favoured. There is also the possibility that our recommendations may not be implemented, either nationally or in some states or territories. It seems likely that additional recommendations might be required to guide institutions as to how they should provide redress either while any national or state and territory arrangements are being implemented or if such arrangements are not implemented. We would expect that individual institutions should be able to adopt the principles and approaches we recommend generally. It may also be that some or many institutions could combine together to provide an interim scheme for redress. Institutions may need additional guidance on some issues either until the structures we recommend for redress are implemented, or if they are not implemented.

Additional principles

Independence from the institution

A single national redress scheme or state and territory redress schemes would ensure that decision making on redress is independent of the institutions that the abuse occurred in. Until these structures are implemented, institutions will need to seek to achieve independence in decision making on any redress claims that they receive. It seems likely that institutions would need to consider the following in seeking to achieve independence in an institutional redress process:

• they should provide information on the application process, including online, so that survivors do not need to approach the institution if there is an independent person with whom they can make their claim 

• if feasible, the process of receiving and determining claims should be administered independently of the institution to minimise the risk of any appearance that the institution can influence the process or decisions 

• they should ensure that anyone they engage to handle or determine redress claims is appropriately trained in understanding child sexual abuse and its impacts and in any relevant cultural awareness issues 

• they should ensure that any processes or interactions with survivors are respectful and empathetic, including by taking into account the factors discussed in Chapter 4 in relation to meetings and meeting environments 

• processes and interactions should not be legalistic. Any legal, medical and other relevant input should be obtained for the purposes of decision making.

Cooperation on claims involving more than one institution

A single national redress scheme or state and territory schemes would ensure that a survivor’s experiences of institutional abuse could be assessed in one redress process, even where the survivor had experienced abuse in more than one institution. Until these structures are implemented, institutions will need to seek to achieve a similar outcome in decision making on any redress claims that they receive. This issue will clearly arise where a survivor alleges abuse in more than one institution. In these circumstances, with the survivor’s consent, the institution’s redress process should approach the other institutions named to seek cooperation on the claim. If the survivor consents and the relevant institutions agree, one process should assess the survivor’s claim in accordance with the redress processes and under the table or matrix and amounts of monetary payments we finally recommend and allocate contributions between the institutions. If any institution no longer exists and has no successor, their share should be met by the other institution or institutions.

Counselling and psychological care

The option for supporting the provision of counselling and psychological care through redress by creating a trust fund to supplement existing services and fill service gaps would not be available in the absence of a ‘one-stop shop’ redress scheme. Institutions may not have the number of claims necessary to allow efficient pooling of contributions and individual institutional trust funds may have little capacity to supplement existing services or fill service gaps. Through their redress processes, institutions could undertake to meet survivors’ needs for counselling and psychological care. Institutions would also need to ensure that a survivor’s need for counselling and psychological care is assessed independently of the institution.

Possible structures

In the absence of a national redress scheme or state and territory redress schemes, there may be structures that institutions could adopt in order to offer redress more effectively than through individual institutional redress schemes.

There is no legal impediment to institutions establishing cooperative arrangements on an on-going basis, rather than on an ad hoc basis as particular claims require cooperation. However, some institutions have told us that cooperation is unlikely in the absence of government leadership or direction. Unless governments join any cooperative effort, at least in relation to claims of abuse in government-run institutions, then a cooperative structure may have limited application.

Some level of coordination might be achieved through an independent entity offering a redress process on a fee-for-service basis. In order to offer an effective redress process, the entity would need to adopt the principles and approaches we recommend generally, as well as any relevant additional principles for institutions. Again, such an approach may have limited application if governments do not participate, at least for claims of abuse in government-run institutions. Options for non-government institutions to adopt effective cooperative approaches to redress in the absence of government leadership and participation appear limited. We welcome submissions that discuss the issues raised in Chapter 9, including the additional principles for interim arrangements and possible structures. In particular, we seek the views of survivors, survivor advocacy and support groups and institutions on whether there are other issues on which direction or guidance might be required for interim arrangements.

Civil litigation

In Australia, the process for obtaining civil justice for personal injury is by an award of damages through successful civil litigation. Redress schemes may provide a suitable alternative to civil litigation for some or even many claimants, but they do not offer monetary payments in the form of compensatory damages obtained through civil litigation.

In considering possible reforms to civil litigation systems, we have focused on the issues that appear to be particularly difficult for survivors. In focusing on issues of particular significance for survivors, it may be possible to improve the capacity of the civil litigation systems to provide justice to survivors and in a manner at least comparable to that of other injured persons.

Limitation periods

Limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation. Given what we know about the average length of time that victims of child sexual abuse take to disclose their abuse, standard limitation periods are fairly clearly inadequate for survivors. Options for reform are to remove limitation periods for actions relating to child sexual abuse altogether or to substantially extend them. There is also an issue as to whether any changes should apply prospectively only or retrospectively. The Exposure Draft for the Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014 (Vic), released on 24 October 2014 by the Victorian Department of Justice, would remove limitation periods altogether, including retrospectively. If limitation periods are removed altogether, defendants may be required to defend proceedings without evidence that would have been available to them previously and in circumstances where the trial could not be fair. If limitation periods are removed altogether, an option is to include provision for the courts to stay proceedings for reasons of unfairness to the defendant.

Duty of institutions

A survivor will have a clear cause of action against the individual perpetrator or perpetrators of the abuse in the intentional tort of battery. Causes of action against an institution are considerably more difficult. Difficulties arise because civil litigation against the institution seeks to have the institution found liable for the deliberate criminal conduct of another person. The legal bases for institutional liability for abuse currently available in Australia are:

• an action in negligence involving breach by the institution of a duty of care owed to the child. It will require proof of the existence of the duty and its breach; and that the breach caused the damage. The duty is a duty to take reasonable care. What is ‘reasonable’ is determined by reference to the standards applying at the time the duty is alleged to have been breached 

• vicarious liability of the institution for torts committed by its employees while acting in the course of their employment. In Australia, this liability has been limited to apply only to the acts of ‘employees’ and it is unclear in Australian law when child sexual abuse might be found to have occurred ‘in the course of employment’ 

• an action for breach of the institution’s non-delegable duty to ensure that a third party takes reasonable care to prevent harm. This is a duty to ensure that reasonable care is taken by others. It is somewhat similar to vicarious liability, but it applies to the acts of independent contractors rather than employees. It is not clear that a non-delegable duty will extend to liability for the criminal acts of the third party. The leading Australian case, New South Wales v Lepore, decided by the High Court in 2003, has left the law on vicarious liability and non-delegable duties in a somewhat uncertain state. Courts in Canada and the United Kingdom have adopted considerably broader approaches to finding institutions liable for institutional child sexual abuse.

Options for reform include:

• imposing an absolute liability on institutions so that institutions would be liable for the abuse regardless of any steps they had taken to prevent it 

• imposing liability on institutions, unless the institution proves that it took reasonable precautions to prevent the abuse. There is also an issue as to whether any changes should apply prospectively only or retrospectively.

Identifying a proper defendant

Survivors and their legal advisers have had difficulties in finding a proper defendant to sue. A survivor will always have a cause of action against the perpetrator of the abuse, but survivors may wish to sue the institution in which they were abused. Much of the discussion of difficulties in finding the proper defendant to sue has focused on the absence of an incorporated body, particularly for some faith-based institutions. However, in some cases the difficulties for survivors may arise not so much from the absence of an incorporated body at the time the abuse occurred as from the passage of time between the occurrence of the abuse and the survivor wishing to commence civil litigation. Incorporation does not guarantee that an entity will survive for any particular period of time. Also, incorporation does not guarantee that an entity will have any assets to meet the claim. In considering options for reform, it seems reasonably clear that the difficulties for survivors in identifying a correct defendant when they are dealing with unincorporated religious bodies should be addressed. It may be appropriate for state and territory legislation to be amended to provide that any liability of the religion or religious body that a statutory property trust is associated with for institutional child sexual abuse can be met from the assets of the trust and that the trust is a proper defendant to any litigation involving claims of child sexual abuse for which the religion or religious body is alleged to be liable. Alternatively, some religions or denominations might prefer to solve the problem in different ways, such as by providing a ‘nominal defendant’ that is to be a proper defendant to any claims of child sexual abuse.

A requirement for incorporation and insurance, particularly for small, temporary, informal unincorporated associations, may deter people from forming such associations, potentially losing the various sporting, cultural and other activities they provide in the community. However, it might be reasonable for state and territory governments to require that certain children’s services that are authorised or funded by the government be provided only by incorporated entities and that those entities be insured.

Model litigant approaches

There is a general common law obligation on governments to act as ‘model litigants’. The Australian Government and some state and territory governments have adopted written model litigant policies. Some states and territories have gone further in adopting principles for how they will handle civil litigation in relation to child sexual abuse claims.

The Productivity Commission has recently concluded that model litigant rules should not be extended to non-government litigants where there are power imbalances between the parties. While there might be no harm in non-government institutions choosing to comply with model litigant principles in responding to civil claims for institutional child sexual abuse, these principles may not be sufficiently specific to help institutions, and their lawyers, to respond more appropriately to such claims.

Both governments and non-government institutions that receive civil claims for institutional child sexual abuse would benefit from adopting more specific guidelines for responding to claims for compensation in relation to allegations of child sexual abuse. Victoria’s Common Guiding Principles for responding to civil claims involving allegations of child sexual abuse and New South Wales’s Guiding Principles provide useful models to consider.

We welcome submissions that discuss the issues raised in Chapter 10. In particular, we welcome submissions on:

• the options for reforming limitation periods and whether any changes should apply retrospectively 

• the options for reforming the duty of institutions and whether any changes should apply retrospectively 

• how to address difficulties in identifying a proper defendant in faith-based institutions with statutory property trusts 

• whether the difficulties in identifying a proper defendant arise in respect of institutions other than faith-based institutions and how these difficulties should be addressed 

• whether governments and non-government institutions should adopt principles for how they will handle civil litigation in relation to child sexual abuse claims 

• whether any changes may have adverse effects on insurance availability or coverage for institutions, including specific details of the adverse effects and the reasons for them.