19 September 2015

Analytical Jurisprudence

'Gender and the Analytical Jurisprudential Mind' (Oxford Legal Studies Research Paper No. 46/2015) by Leslie Green asks 
Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.
Green writes
What can feminism contribute to the study of law? A lot. It can help us understand what it is for women to be disadvantaged in law, the varied ways that happens, and the remedies that might be feasible. What can feminism contribute to the study of jurisprudence? This is trickier. Of course, if ‘jurisprudence means law — for instance, case law or general principles of law — then we already have our answer. But what if jurisprudence means the philosophy of law and, in particular, the philosophy of law in the analytic style familiar throughout the Anglophone world and, now, in many other places as well?
There is good feminist writing in the normative branches of jurisprudence that overlap moral and political philosophy. We know what (some) feminists say about the importance of relationships in morality, or about pornography and free speech, or about the connection between domestic equality and political justice. There is no harmony on such issues, but we do have an idea of what a feminist position might look like. When we turn to general questions about the nature of law, however, the very idea of a feminist approach is puzzling. What is a feminist line on whether law contains power conferring rules? What should feminists think about the identity of legal systems over time? What counts as a feminist view on the possibility of vicious legal systems? With respect to such issues no feminist positions come to mind. I think the explanation for that is straightforward. A central feature of feminist theory is attention to gender, and gender is not relevant to any of these problems.
By ‘not relevant’ I mean that no position about gender relations makes any answer to these questions more or less plausible. Suppose you are wondering whether, as Hans Kelsen thought, what appear to be power conferring rules in the law are best seen as fragments of duty imposing rules. No view about gender — what constitutes it, what its social importance is, how it shapes people’s lives — is going to tilt the answer in favour of or against Kelsen’s thesis. By way of contrast, suppose you are wondering whether, as John Rawls thought, the domain of justice is the ‘basic structure’ of a society. Given what we know about the gendered division of power and labour within families, the plausibility of that thesis turns on whether and how the idea of the ‘basic structure’ treats the family. So gender is highly relevant to theories of justice. That is why there are feminist theories of justice but no feminist theories of legal rules. The same goes for most other problems in general jurisprudence: there are no feminist theories of the sources of law, no feminist theories of the existence conditions for legal systems, no feminist theories of the identity of legal systems, no feminist theories of the normativity of law, and so on. We no more expect to see feminist theories in general jurisprudence then we expect to see feminist theories of vagueness or feminist interpretations of quantum mechanics. The reason jurisprudence says so little about gender is that gender is not relevant there.
Or so it seems to me. But in a survey of issues about law and gender, Joanne Conaghan offers a very different diagnosis. She thinks that legal theorists working in general jurisprudence do not say much about gender because they fail to make room for it. Conaghan holds gender to be pervasively relevant, not only to law — no one denies that — but throughout legal philosophy. Things seem otherwise only because men have stacked the deck: ‘the concept of law (to invoke the title of Hart’s famous work) has been endlessly interrogated in terms which do not admit the relevance of gender.’(6) Conaghan offers no direct argument in support of that claim. She does not identify a single ‘interrogation’ of the concept of law that excludes gender where gender is plausibly relevant.
Her case is diffuse and indirect. She sharply criticizes some of my own work in which she detects an ethos that is, she claims, the sort of ethos that conceals the relevance of gender to jurisprudence.   Now, since the work she criticizes is focused on conceptual issues about sex, gender, and marriage, and since it is not work in general jurisprudence, one might wonder how it could serve as evidence for her charge. How could a work treating gender not admit the relevance of gender? How could a work about one local problem in special jurisprudence — the nature of marriage in common law — reveal anything about the relevance of gender to the concept of law? Conaghan’s answer is that it offers ‘a rare glimpse into how sex/gender is conceived in the analytical jurisprudential mind’. (169) She says that glimpse reveals the general ‘methodological limitations which characterize [such] jurisprudential analysis,’ namely:
the abstraction of legal concepts from the framework in which they operate and the tendency to treat them as having a fairly fixed content over time and space; the unarticulated normative prioritization of some features... over others..., evidencing the presence of evaluative choices which problematize any claim to be rendering a descriptive or value neutral account; the overlooking, or at least unexplained disregard, of contra indicative evidence.... (176)
If we would free legal philosophy from this sort of mindset exhibited in my work and allow for the historicity of concepts, if we would prioritize the right features of law and acknowledge we are doing that, if we would play closer attention to empirical evidence, we would find that gender is important to jurisprudence in ways that the ‘analytical jurisprudential mind’ cannot begin to acknowledge. Gender is absent from general jurisprudence, on Conaghan’s view, not because it is irrelevant to it, but because the methods of analytic philosophy screen it out.
If her diagnosis were correct, then to say that analytical jurisprudence has ‘methodological limitations would be an understatement. It would be a failure: (1) To suppose that legal concepts are unchanging flies in the face of the obvious; the law changes and so do some legal concepts. (2) To think we can describe anything without prioritizing some of its features is to misunderstand the nature of description. (3) To overlook or disregard relevant evidence is incompetence or dishonesty. If that is the mess analytical jurisprudence makes of things, I think we would be lucky if its discussions of sex and gender were, as Conaghan thinks, ‘rare’. Unsurprisingly, perhaps, I do not accept that I have blundered in these ways and I shall explain why not. One might doubt whether self defence could be enough to get the whole ‘analytical jurisprudential mind’ off the hook. Perhaps I am not prone to these vices but everyone else is: maybe I escaped a bad upbringing. As we shall see, however, Conaghan’s errors are of a general kind, not only false readings and misattributions, but misunderstandings of analytic jurisprudence. Were they to take hold they would be damaging to the development of feminist legal theory.

Neuropolitics

'Intellectual property for the neurocentric age: towards a neuropolitics of IP' by Jake Dunagan and Debora Halbert in (2015) 5(3) Queen Mary Journal of Intellectual Property 302—326 is described by the authors as seeking to
expand the conversation about the possible new relationships and dilemmas that arise at the nexus between neuroscience, creativity, authorship and intellectual property. This article does not use traditional legal argumentation to understand the future of intellectual property, but rather deploys a scenario-based interrogation of possible future trajectories, a method derived from the discipline of futures studies. Instead, we draw upon a mix of social, legal, political, and technological trends to generate different alternative possibilities. Taken together, emerging insights from the brain sciences and the shifting dynamics of IP law point to a need for a new analytical framework – a neuropolitics of IP law. We ultimately conclude that without a fundamental transformation in how we understand intellectual property and its ownership, the mechanisms in place for expanding corporate control of IP at the expense of the individual should be of serious concern.

17 September 2015

Monis Letter Inquiry

The report of the Senate Standing Committees on Legal and Constitutional Affairs inquiry into Handling of a letter sent by Mr Man Haron Monis to the Attorney-General features the following  recommendations
R 1 The committee reminds government agencies and statutory authorities, that where evidence is given in error to a Senate committee, the primary duty of the department or statutory authority is to the committee. Witnesses must bring errors or suspected errors to the attention of the relevant Senate committee as a priority.
R 2  The committee recommends that senior executive staff across the Australian Public Service, including the secretaries of the Department of Prime Minister and Cabinet and the Attorney-General's Department, undergo training in parliamentary accountability provided by the Department of the Senate, including but not limited to seminars routinely provided for senior executives.
R 3 The committee recommends that the Attorney-General's Department: formally draw to the attention of all of its officers' the document search and document management protocol; implement appropriate training programs to ensure adherence to the protocol; and consult with the Australian Government Solicitor for the purpose of reviewing this protocol in a comprehensive and purposeful manner.
R 4  The committee recommends that the Attorney-General's Department: review the allocation of resources across its divisions; undertake formal risk assessments to mitigate risks associated with the cross-divisional movement of staff and the ad hoc use of staff across departmental divisions; and develop and implement training for its staff relating to intra-departmental document management and communications.
R 5  The committee recommends that the Attorney-General's Department implement a training program to ensure that officers responding to correspondence are better aware of the political and cultural connotations of titles and names, especially in relation to known terrorist organisations.
R 6  The committee recommends that the Attorney-General's Department subject its document handling procedures to both regular and random audits, to inform further development of protocols, and training and resource requirements.
R 7 The committee recommends that the Attorney-General's Department routinely consult the relevant intelligence and security agencies in relation to sensitive correspondence, especially where it has or may have national security implications.
R 8 The committee recommends that all Commonwealth government agencies ensure that they have procedures in place to bring sensitive correspondence which has or may have national security implications to the attention of the relevant intelligence and security agencies in a timely manner.
R 9 The committee recommends that the Attorney-General's Department review its procedures related to the application of the Web Guide: Guidelines for Ministerial and Agency Websites in a comprehensive and purposeful manner to ensure that these guidelines are applied consistently, objectively and apolitically.

Availability of Cancer Drugs

The Senate Community Affairs References Committee report Availability of new, innovative and specialist cancer drugs in Australia features the following recommendations -
R 1  The committee recommends that the Australian Government initiate a comprehensive review of the system for the registration and subsidisation of medicines. The review should examine:
• all available pathways for the registration and listing of new medicines, or new indications for medicines already registered on the ARTG and listed on the Pharmaceutical Benefits Scheme, including making provision for utilisation of assessments conducted by comparable overseas regulators; provision for clinicians and/or patient groups to apply for an extension of existing registrations to additional indications, managed access programs and risk-sharing, and the adoption of more flexible evidential requirements;
• options for improving the operation of assessment processes including:
• enhancing engagement with sponsors and other stakeholders to better tailor their applications to the requirements of the PBAC, including consideration of pre-application planning meetings;
• applying tiered assessment processes as a means of matching resources to the complexity of applications;
• encouraging greater cooperation between the PBAC, the TGA and the Medical Services Advisory Committee, including examination of options for enhancing the operation of parallel processing arrangements; and
• ensuring greater transparency throughout the assessment process;
• options for expanding the post-market review of medicines;
• enhancing and formalising mechanisms for consumers and clinicians to play a more central and substantial role in the evaluation of new medicines and new indications for already listed medicines, including:
• consideration of options for expanding consumer and clinician representation on the PBAC;
• enhancing existing avenues for stakeholder input, including the use of consumer and patient hearings; and
• avenues for incorporating public perspectives on overarching moral, ethical and opportunity cost considerations into PBAC decision making processes, including consideration of models employed by comparable overseas regulators; and
• options for ensuring that the necessary administrative and technical resources are available to support the implementation of an enhanced PBAC system.
2  The committee recommends that the Australian Government commission a review of current data collection mechanisms for cancer medicines, including identification of:
• obstacles to the integration of existing databases and potential avenues for addressing these;
• opportunities to incorporate data from post-market evaluations; and
• avenues for capturing data relating to the off-label use of cancer medicines.
R 3 The committee recommends that the Australian Government establish a Steering Committee to examine the feasibility of establishing a national register of cancer medicines.
The report has the following structure -
Chapter 1 sets out the context of the inquiry. It provides an overview of the incidence of cancer in Australia and describes the regulatory pathway for the approval of medicines for marketing in Australia and reimbursement of the cost of some of those medicines through the PBS.
Chapter 2 examines the factors that affect the timing and affordability of access to new cancer medicines. It considers the operation of the TGA, the PBAC and the PBS.
Chapter 3 considers the PBAC's approach to the assessment of the cost and effectiveness of new cancer medicines as a prerequisite for listing on the PBS. It also considers the role that consumers and clinicians can play in this process.
Chapter 4 considers the impact of delays in the approvals process for Australian cancer patients. It examines the available pathways for access to cancer drugs not available through the PBS together with the need for timely and accurate information about new cancer medicines.
Chapter 5 examines some alternate models for facilitating access to new and innovative cancer drugs together with the need for improved data collection to support such models.
Chapter 6 presents the committee's conclusions and recommendations.

Wrongs Amendment Bill 2015 (Vic)

The Wrongs Amendment Bill 2015 (Vic) reflects the Victorian Competition and Efficiency Commission (VCEC) review of the state's personal injuries legislation, evident in last year's VCEC Adjusting the Balance: Inquiry into Aspects of the Wrongs Act 1958 report.

The Bill is described in the 2nd Reading Speech -
In 2002 and 2003 significant reforms were made to Victoria's personal injuries laws as part of a nationwide tort law reform project in the wake of the collapse of HIH Insurance in 2001. The reforms were designed to restrict some common-law rights to compensation for negligence in order to reduce insurers' liability for damages, with the aim of relieving pressure on insurance premiums and ensuring the availability of insurance.
While there is evidence to suggest that the tort law reform project was successful in reducing insurance premiums, there are concerns that the reforms have disproportionately affected the rights of claimants to access damages, and some deserving claimants have been denied compensation.
In 2013 the Victorian Competition and Efficiency Commission reviewed the personal injury provisions of the Wrongs Act to identify any anomalies or inconsistencies, in order to ensure that the act is operating fairly and is not excluding genuine claimants from accessing compensation. The commission was asked to make recommendations for improvement to the act that would not place undue pressure on the price or availability of insurance.
The bill gives effect to most of the recommendations in the commission's report, and will make it easier for certain types of claimants to access compensation for their injuries. It is a responsible, evidence-based reform package.
The current whole-person impairment threshold for access to damages for non-economic loss, which compensates for pain and suffering and loss of enjoyment of life, is 'greater than 5 per cent'. The bill will lower this threshold for claimants with spinal injuries to '5 per cent or more', which recognises that spinal injury impairments are only assessed in increments of 5 per cent. This will mean that some claimants who suffer from spinal injuries who are presently unable to access compensation for non-economic loss will be able to do so, reflecting the fact that spinal injuries often have a major impact on a claimant's overall quality of life.
The bill will also lower the impairment threshold for claimants with psychiatric injuries, from 'greater than 10 per cent' to '10 per cent or more', which will slightly increase the pool of claimants who are eligible for compensation for psychiatric injuries.
The bill will also increase the maximum amount of damages that can be awarded for non-economic loss, from $497 780 to $577 050. This will bring the Wrongs Act into line with the Victorian workers compensation scheme, and will be of particular benefit to young or catastrophically injured plaintiffs, by allowing them to access more compensation for their injuries.
The bill will benefit injured parents and carers by reinstating a limited entitlement to damages for the loss of capacity to care for dependants. This head of damages formerly existed at common law but was abolished by the High Court of Australia in 2005. Reinstating the head of damages recognises the value of the work that is performed by parents and carers in the home, and the significant financial stress that can be placed on families as a result of the injury or death of a parent or caregiver.
The bill also makes changes to the cap on damages for economic loss so that it operates more fairly with respect to people with high earning capacity and their dependants.

Victorian Smart Meters Program

The Victorian Auditor-General’s Report Realising the Benefits of Smart Meters [PDF] strongly criticises the state's electricity metering program.

The report states
In 2006, the Victorian Government committed to the Advanced Metering Infrastructure (AMI) program which involved replacing existing electrical metering infrastructure in all Victorian residential and small business premises with digital smart meters by December 2012. At that time, this was expected to involve the rollout of 2.6 million meters to 2.4 million sites. Before the rollout commenced in 2009, the deadline for completion was changed to December 2013. The 2005 business case anticipated a net incremental benefit of $79 million relative to a 2004 cost-benefit analysis for the rollout of interval meters.
Key expected benefits of smart meters were to:
  • improve consumers’ ability to monitor and control their electricity use, potentially allowing for cheaper and more efficient energy use 
  • reduce the cost to industry of planning and managing power supply, potentially leading to lower retail prices for consumers 
  • increase retail competition through new services, potentially resulting in a greater choice of retail offerings to consumers.
In 2009, VAGO released its report, Towards a ‘smart grid’ — the roll-out of theAdvanced Metering Infrastructure, which was highly critical of the original business case. It also made a number of recommendations including to improve governance and stakeholder engagement, reassess the economic viability of the smart meter program by updating the cost-benefit analysis (CBA) to reflect existing and emerging risks, and to assess the impact of changes to scope and underlying assumptions.
In 2011, the government reviewed the AMI program and decided to continue to roll out smart meters to all Victorian residential and small business customers by 31 December 2013.
This audit assessed whether the Department of Economic Development, Jobs, Transport & Resources (DEDJTR) has effectively addressed recommendations from VAGO’s 2009 audit, and can demonstrate that the AMI program is delivering expected consumer benefits and is set up to maximise longer-term benefits.
By the end of 2015, Victoria's electricity consumers will have paid an estimated $2.239 billion for metering services, including the rollout and connection of smart meters.
The net position of the program has changed significantly since its inception, and there is now expected to be a substantially increased net cost to consumers over the life of the program.
In contrast, while a few benefits have accrued to consumers, benefits realisation is behind schedule and most benefits are yet to be realised. Current estimates suggest that approximately 80 per cent of the expected benefits could be achieved. However, there are significant uncertainties and risks associated with achieving these benefits, which are not within the control of the state.
There is a risk that the AMI program's most recent 2011 estimate of a net cost of $319 million to consumers may worsen as costs are projected to increase and benefits remain decidedly uncertain. Other factors increase this risk even further, such as the move to national competitive retail metering from 2017, which could further diminish the benefits of the AMI program and expose those consumers who choose to have the smart meters installed under the AMI program replaced by other, competitively provided meters to additional costs.
The 2011 CBA is the fourth time that the costs and benefits of the AMI program have been analysed in just 10 years. In each analysis since our 2009 audit the estimated costs have increased and the benefits have diminished. This continual change highlights the serious flaws in the program’s original business case which we identified in our 2009 audit, as well as the unrealistic assumptions around the achievability of the costs and benefits which were beyond the control of the state. DEDJTR has advised that it is now reassessing the expected benefits of the program for a fifth time, as many of the 2011 assumptions have materially changed.
The three departments which have administered the AMI program have taken action to address most of the recommendations from VAGO's 2009 audit. They have strengthened program governance structures, the oversight and management of risks, improved communications with consumers and regulators, and increased the scrutiny of costs to inform regulatory decisions. However, these changes have not been sufficient to overcome the manifest problems with the estimation and control of costs and benefits, and to ensure the realisation of the projected benefits for consumers.
By the end of the 31 December 2013 deadline, 92.79 per cent of the installation of smart meters was completed. By June 2014, the installation was 98.62 per cent complete, however, approximately 13.5 per cent of households and small businesses did not have a smart meter that could be remotely read. Given that consumers have been progressively paying for the program since 2009 and ultimately pay the full costs, DEDJTR must focus now on actions that will accelerate the achievement of any benefits to consumers and avoid any further increase in the net costs of the program.
The report's Findings are -
Costs will increase
The average residential household has paid around $760 since 2009 in metering services, which included the costs associated with installing and maintaining smart meters and related infrastructure and systems. These fees are applied to electricity bills but are not itemised. Despite departmental action to influence the Australian Energy Regulator’s (AER) scrutiny of metering costs, total metering charges imposed on consumers over the period 2009 to 2015 have been approximately $28 5.7 million , or 11.4 per cent,over the distributors' original forecasts. The costs for 2014 and 2015 are forecast to be 88 per cent and 28 per cent over budget respectively due to a delay in the installation of meters. Costs are forecast to reduce from 2013 to 2023 but increase again sharply from 2024, if the meters are replaced from that time as anticipated by the 2011 CBA. Consequently, there is a risk that the expected net cost to consumers over the life of the program may increase above the most recent estimate of $319 million. Benefits realisation is falling behind schedule In 2011, the government commissioned a CBA which has become the benchmark against which DEDJTR measures benefits realisation. Benefits realisation as at 2014 had already fallen behind the 2011 CBA forecast and current projections are that consumers can only expect to achieve approximately 80 per cent of the full benefits to 2028. However, achieving these benefits is subject to many assumptions that have not materialised, and is dependent on the actions of many stakeholders.
The single largest benefits category of the AMI program relates to the avoided cost of replacing and manually reading the old accumulation meters. However, accumulation meter costs have been replaced with smart meter costs that are much higher. While the program has reported $591.99 million in these avoided costs to 2014, which is in line with the 2011 forecast schedule, this does not represent any additional value generated by the AMI Program. Meanwhile, the other benefits categories, which represent actual added value from the AMI program, are falling well behind schedule. This is due, in part, to the delay in the finalisation of the smart meter rollout, the fact that initial flexible tariffs did not necessarily compare favourably with flat tariffs and a perceived waning interest in flexible pricing. These are: • benefits associated with the uptake of innovative tariffs and demand management ― which has achieved only 2.5 per cent of expected benefits to be realised by 2014 • benefits that come from network operational efficiencies ― which have achieved 49.32 per cent of expected benefits to be realised by 2014.
Benefits realisation by consumers is uncertain
Few of the benefits accrue directly to consumers, and they clearly rely on consumer action to take advantage of these services. For instance, consumers can take up flexible pricing offers that may result in savings on their electricity bills. Similarly, consumers may benefit directly if they move house and take advantage of the cost reduction in de-energising and re-energising power supply, arising from the ability of power companies to now do this remotely using smart meters. The majority of expected benefits for consumers from the AMI program are cost savings that accrue first to distributors and to retailers that must be passed on to consumers through a chain of action, including regulatory decisions and competitive action. However, the state cannot directly control these processes. As an example, consumers' reaction to flexible pricing — which provides higher electricity prices at peak times — is assumed to reduce overall peak electricity consumption. This is expected to reduce or defer distributors' need to upgrade electricity networks to meet demand, which results in cost savings for distributors. However, these cost - savings can only be realised by consumers if they are passed on to retailers through regulatory pricing decisions made by the AER. Retailers must then pass these savings on to consumers through competitive pressures. As such, the actual transfer of these types of benefits to consumers is unclear as these actions cannot be fully determined in advance.
Most of the cost savings achieved by distributors from smart meters are yet to flow through to retailers and on to customers. The AER is currently preparing for its next Victorian distribution pricing decision which will take effect from 1 January 2016.
This provides an opportunity for cost savings achieved by distributors to be passed on to retailers and then to customers. DEDJTR should be vigorously prosecuting this process with its own rigorous analysis of the distributors' ongoing costs to determine the benefits that should be flowing to retailers and to consumers.
The amount of expected benefits may no longer be valid
The amount of overall benefits from the AMI program as calculated in the 2011 CBA relied on many assumptions being met. For instance, the 2011 CBA estimated that $778 million of benefits associated with the uptake of flexible tariffs and demand management would be realised by consumers over the life of the p rogram to 2028. However, this figure is based on complex assumptions around the rate at which households will take up new pricing offers. These assumptions are not currently being met. By 2014, the 2011 CBA expected 4 per cent of consumers to have taken up flexible electricity price offers, however, only 0.27 per cent have done so. This is due to a slower than expected smart meter rollout, the moratorium on the introduction of flexible pricing, the fact that initial flexible tariffs did not necessarily compare favourably with flat tariffs and perceived waning interest in flexible pricing. At this rate, it is unclear whether the expected uptake of 15 per cent by 2017 will be achieved. Accelerating the uptake and benefits from flexible price offers relies on retailers providing better value - for - money options compared to the existing flat tariffs, and increasing consumer awareness of the availability and benefits of such offers.
The department is re-evaluating the expected benefits
DEDJTR now acknowledges that some key assumptions underpinning the expected benefits realisation as defined in the 2011 CBA may no longer be valid. It proposes to review these assumptions but remains committed to achieving the targets outlined in the 2011 CBA. This review is again likely to change the value of anticipated benefits through to the end of the program. We acknowledge that the nature and amount of benefits may change — especially as the technology is rolled out and market participants, policy makers and customers experience and better understand the potential of AMI over time. In this context, it is encouraging that DEDJTR will actively review the expected benefits. However, it is concerning that the fundamental assumptions underpinning the 2011 CBA, which were used to justify the continued rollout of smart meters, have become so uncertain as to require, yet again, a review of future targets for benefits realisation.
Program governance and risk management
DEDJTR has recognised its leadership role with respect to the AMI program and has put in place governance structures to strengthen its oversight and management of program risks. It has established clear accountabilities and responsibilities to enable it to better identify and manage risks, including establishing the AMI Program Steering Committee, Ministerial Advisory Council, and Program Management Office. DEDJTR has also developed a risk management plan to identify, evaluate and mitigate future risks, which is reviewed regularly by its Program Steering Committee. DEDJTR has taken action to address program issues. For example, it has provided distributors with an incentive to complete the rollout by requiring them to pay a rebate of $125 to customers at premises where: • the distributor had failed to attempt to install a smart meter by 30 June 2014 ―this rebate was payable by 31 October 2014 • the smart meter installed was not functioning as required by 31 March 2015 ―this rebate was payable by 30 June 2015. Six hundred and eighty households have received the first rebate as they do not yet have a smart meter installed, and approximately 90 per cent of eligible account holders received the tranche two rebates. DEDJTR has also been effective in influencing the AER in its scrutiny of distributors' metering costs that are recovered from customers through charges.
Consumer engagement and education
DEDJTR has demonstrated a strong focus on improving communications with consumers, including addressing consumer issues arising from the AMI program. Various evaluations of DEDJTR’s communications campaigns have found that they have increased consumer awareness, and consumer use of My Power Planner as a tool to find a better electricity plan and save money. However, despite the work to date, market research conducted in early 2014 found that two - thirds of Victorians did not understand what the benefits of smart meters were and many were still unaware of the link between their smart meter and saving money on their electricity bills. A very small number of Victorians still had a negative perception of smart meters due to misinformation and a lack of understanding. DEDJTR needs to improve its communications to further promote the active use of smart meters to inform household energy consumption, and to encourage the uptake of flexible pricing. Consumer action is a key determinant of any future benefits realisation.
Future developments impacting on smart meter benefits
The amount of benefits that are expected to be achieved by the AMI program may be impacted by the introduction of competitive metering and network tariff reform. National reforms to metering that are expected to be introduced from mid - 2017 could mean that smart meters installed under the AMI program may be replaced by other, competitively provided meters, under nationally agreed arrangements. DEDJTR has acknowledged that the removal of distributor exclusivity in Victoria is a risk to the realisation of the benefits of the AMI program. It may also expose consumers to increased costs. Network tariff reform, enabled by smart meters, is intended to create a fairer cost structure for consumers by removing cross - subsidies that exist in the current cost structure. However, the impact that network tariff reforms will have on different community groups is not yet well understood, and for some consumers network costs could increase. DEDJTR should focus on developing a customer engagement program to explain the reasons behind these reforms, but also to protect vulnerable consumers from potential adverse impacts. It should also engage with the AER to introduce metering competition in a way that maintains AMI benefits for Victorian consumers.
Future actions to enhance benefits realisation
Despite expecting significant consumer and other benefits when the AMI program commenced in February 2006, the state has few options to influence — and no ability to directly control — costs to consumers and drive many of the benefits. Nevertheless, DEDJTR has a responsibility to take an active role in implementing the AMI program to contain any further costs and adverse impacts and to maximise and accelerate the available benefits for consumers, who have paid for the rollout and connection of smart meters to date. The recommendations in this report highlight the key areas on which DEDJTR must focus its efforts so as to protect consumers and maximise their benefits realisation.
Public reporting
Reporting on the AMI program has been inadequate. While consumers pay for the costs of the smart meter rollout on the promise of future benefits, there is limited public reporting on the program in DEDJTR's annual report and in the Budget Papers. In particular, there is little clear and transparent knowledge of costs to consumers to date and no public reporting of either the costs or benefits of the program. What exists does not provide sufficient information for consumers to assess the program 's performance in terms of the costs incurred to date and whether benefits have been realised. This reduces transparency and accountability for this program.
The report offers the following  Recommendations
That the Department of Economic Development, Jobs, Transport & Resources:
1. develops Budget Paper measures that report performance against the objectives of the Advanced Metering Infrastructure program, and publicly reports annually on costs incurred and benefits achieved
2. improves its consumer education to focus on the opportunities to use smart meters to reduce energy consumption, and to take up flexible retail pricing offers, and use other tools, to reduce bills
3. works with distributors and retailers to identify and implement clear syst ems and processes for monitoring the changes in energy consumption and peak demand
4. works with distributors and retailers to develop and implement systems and processes to more effectively measure and track network benefits to enable these to be passed on to consumers
5. effectively influences the Australian Energy Regulator’s: • decisions related to the passing on of network efficiency benefits to consumers in the 2016 – 2020 distribution price review • annual process for assessing whether excess costs are efficient and prudent and should be passed on to consumers
6. works with relevant stakeholders to analyse the impact of network tariff reform on consumer groups, particularly vulnerable consumers
7. develops a strong and persistent cu stomer engagement program in relation to network tariff reform that: • enables consumers to make informed decisions to realise the potential benefits of more cost - reflective network tariffs and to assist in reducing the load on electricity infrastructure during peak periods • educates vulnerable sectors of society so that they can minimise any unfair disadvantage
8. identifies and implements actions to protect Victorian consumers from additional costs associated with the pending rollout of new competitive metering processes, and ensures that essential Advanced Metering Infrastructure program benefits are preserved
9. in conjunction with industry and the Essential Services Commission, considers options to improve the information available to consumers on electricity bills.

16 September 2015

Modalities of Identity

'The Constitution of Identity: New Modalities of Nationality, Citizenship, Belonging and Being' by Eve Darian-Smith in Austin Sarat and Patty Ewick (eds) Wiley Handbook of Law and Society (Forthcoming) comments
In recent decades there has emerged a large and diverse body of sociolegal literature engaging in identity politics, or what some theorists call the politics of difference. Drawing on the theories and insights of scholars working in cultural studies, feminist studies, sociology, anthropology, geography, political science, history and law, this literature grew out of the civil rights movements of the 1960s and 1970s and gained momentum through the rise of new social movements and debates over multiculturalism in the 1980s and 1990s More recently, sociolegal literature on the politics of identity has had to expand in scale and reach in seeking to analyze the complex relations between individuals and the nation-state in the context of globalization. This essay outlines the analytical approaches in which notions of identity vis-à-vis the nation-state have been thought about in the past, how and in what ways these approaches may be shifting in the present, and what we may as sociolegal scholars need to be thinking about as we confront the future.

15 September 2015

Torture

'Touching Torture with a Ten Foot Pole: The Legality of Canada’s Approach to National Security Information Sharing with Human Rights-Abusing States' by Craig Forcese in (2014) 52(1) Osgoode Hall Law Journal 263 comments
In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “information sharing with foreign entities”. These directions permit information sharing in exigent circumstances, even “when doing so may give rise to a substantial risk of mistreatment of an individual”. The directions prompted a brief chorus of condemnation. They have since sunk into relative obscurity, remaining part of the Canada’s national security policy framework. And yet, in trying to walk the fine line between principle and realism in the administration of Canada’s approach to torture, they continue to raise pressing moral and legal questions.
This Article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by this author directly or through journalistic researchers under access to information law. It examines dilemmas raised when information is shared between human rights-observing and abusing states and then focuses on the legal parameters and policy context in which both “in-bound” and “out-bound” information-sharing takes place. It then analyzes the 2011 instruments and considers their legality under both international and domestic law. The Article concludes that legality of the measures is doubtful in international law – at least in so far as “out-bound” information sharing is concerned – and domestic criminal culpability and constitutional validity are very close questions.

Redress

The Royal Commission into Institutional Responses to Child Sexual Abuse has released its 638 page report [PDF] on Redress and Civil Litigation.

The Commission has made the following recommendations -
Justice for victims
R1. A process for redress must provide equal access and equal treatment for survivors – regardless of the location, operator, type, continued existence or assets of the institution in which they were abused – if it is to be regarded by survivors as being capable of delivering justice.
Redress elements and principles
2. Appropriate redress for survivors should include the elements of:
a. direct personal response
b. counselling and psychological care
c. monetary payments.
3. Funders or providers of existing support services should maintain their current resourcing for existing support services, without reducing or diverting resources in response to the Royal Commission’s recommendations on redress and civil litigation.
4. Any institution or redress scheme that offers or provides any element of redress should do so in accordance with the following principles:
a. Redress should be survivor focused.
b. There should be a ‘no wrong door’ approach for survivors in gaining access to redress.
c. All redress should be offered, assessed and provided with 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.
d. All redress should be offered, assessed and provided with appropriate regard to the needs of particularly vulnerable survivors.
Direct personal response
5. Institutions should offer and provide a direct personal response to survivors in accordance with the following principles:
a. Re-engagement between a survivor and an institution should only occur if, and to the extent that, a survivor desires it.
b. Institutions should make clear what they are willing to offer and provide by way of direct personal response to survivors of institutional child sexual abuse. Institutions should ensure that they are able to provide the direct personal response they offer to survivors.
c. At a minimum, all institutions should offer and provide on request by a survivor: i. an apology from the institution ii. the opportunity to meet with a senior institutional representative and receive an acknowledgement of the abuse and its impact on them iii. an assurance or undertaking from the institution that it has taken, or will take, steps to protect against further abuse of children in that institution.
d. In offering direct personal responses, institutions should try to be responsive to survivors’ needs.
e. 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.
f. Direct personal responses should be delivered by people who have received some training about the nature and impact of child sexual abuse and the needs of survivors, including cultural awareness and sensitivity training where relevant.
g. Institutions should welcome feedback from survivors about the direct personal response they offer and provide.
6. Those who operate a redress scheme should offer to facilitate the provision of a written apology, a written acknowledgement and/or a written assurance of steps taken to protect against further abuse for survivors who seek these forms of direct personal response but who do not wish to have any further contact with the institution.
7. Those who operate a redress scheme should facilitate the provision of these forms of direct personal response by conveying survivors’ requests for these forms of direct personal response to the relevant institution.
8. Institutions should accept a survivor’s choice of intermediary or representative to engage with the institution on behalf of the survivor, or with the survivor as a support person, in seeking or obtaining a direct personal response. 
Counselling and psychological care
9. Counselling and psychological care should be supported through redress in accordance with the following principles:
a. Counselling and psychological care should be available throughout a survivor’s life.
b. Counselling and psychological care should be available on an episodic basis.
c. Survivors should be allowed flexibility and choice in relation to counselling and psychological care.
d. There should be no fixed limits on the counselling and psychological care provided to a survivor.
e. Without limiting survivor choice, counselling and psychological care should be provided by practitioners with appropriate capabilities to work with clients with complex trauma.
f. Treating practitioners should be required to conduct ongoing assessment and review to ensure treatment is necessary and effective. If those who fund counselling and psychological care through redress have concerns about services provided by a particular practitioner, they should negotiate a process of external review with that practitioner and the survivor. Any process of assessment and review should be designed to ensure it causes no harm to the survivor.
g. Counselling and psychological care should be provided to a survivor’s family members if necessary for the survivor’s treatment.
10. To facilitate the provision of counselling and psychological care by practitioners with appropriate capabilities to work with clients with complex trauma:
a. the Australian Psychological Society should lead work to design and implement a public register to enable identification of practitioners with appropriate capabilities to work with clients with complex trauma
b. the public register and the process to identify practitioners with appropriate capabilities to work with clients with complex trauma should be designed and implemented by a group that includes representatives of the Australian Psychological Society, the Australian Association of Social Workers, the Royal Australian and New Zealand College of Psychiatrists, Adults Surviving Child Abuse, a specialist sexual assault service, and a non-government organisation with a suitable understanding of the counselling and psychological care needs of Aboriginal and Torres Strait Islander survivors
c. the funding for counselling and psychological care under redress should be used to provide financial support for the public register if required
d. those who operate a redress scheme should ensure that information about the public register is made available to survivors who seek counselling and psychological care through the redress scheme.
11. Those who administer support for counselling and psychological care through redress should ensure that counselling and psychological care are supported through redress in accordance with the following principles:
a. Counselling and psychological care provided through redress should supplement, and not compete with, existing services.
b. Redress should provide funding for counselling and psychological care services and should not itself provide counselling and psychological care services.
c. Redress should fund counselling and psychological care as needed by survivors rather than providing a lump sum payment to survivors for their future counselling and psychological care needs.
12. The Australian Government should remove any restrictions on the number of sessions of counselling and psychological care, whether in a particular period of time or generally, for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme.
13. The Australian Government should expand the range of counselling and psychological care services for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme to include longer-term interventions that are suitable for treating complex trauma, including through non-cognitive approaches.
14. The funding obtained through redress to ensure that survivors’ needs for counselling and psychological care are met should be used to fund measures that help to meet those needs, including:
a. measures to improve survivors’ access to Medicare by: i. funding case management style support to help survivors to understand what is available through the Better Access initiative and Access to Allied Psychological Services and why a GP diagnosis and referral is needed ii. maintaining a list of GPs who have mental health training, are familiar with the existence of the redress scheme and are willing to be recommended to survivors as providers of GP services, including referrals, in relation to counselling and psychological care iii. supporting the establishment and use of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors and who are registered practitioners for Medicare purposes
b. providing funding to supplement existing services provided by state-funded specialist services to increase the availability of services and reduce waiting times for survivors
c. measures to address gaps in expertise and geographical and cultural gaps by: i. supporting the establishment and promotion of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors ii. funding training in cultural awareness for practitioners who have the capabilities to work with survivors but have not had the necessary training or experience in working with Aboriginal and Torres Strait Islander survivors iii. funding rural and remote practitioners, or Aboriginal and Torres Strait Islander practitioners, to obtain appropriate capabilities to work with survivors iv. providing funding to facilitate regional and remote visits to assist in establishing therapeutic relationships; these could then be maintained largely by online or telephone counselling. There could be the potential to fund additional visits if required from time to time
d. providing funding for counselling and psychological care for survivors whose needs for counselling and psychological care cannot otherwise be met, including by paying reasonable gap fees charged by practitioners if survivors are unable to afford these fees.
Monetary payments
15. The purpose of a monetary payment under redress should be to provide a tangible recognition of the seriousness of the hurt and injury suffered by a survivor.
16. Monetary payments should be assessed and determined by using the following matrix: Factor Value Severity of abuse 1–40 Impact of abuse 1–40 Additional elements 1–20
17. The ‘Additional elements’ factor should recognise the following elements:
a. whether the applicant was in state care at the time of the abuse – that is, as a ward of the state or under the guardianship of the relevant Minister or government agency
b. whether the applicant experienced other forms of abuse in conjunction with the sexual abuse – including physical, emotional or cultural abuse or neglect 
c. whether the applicant was in a ‘closed’ institution or without the support of family or friends at the time of the abuse d. whether the applicant was particularly vulnerable to abuse because of his or her disability.
18. Those establishing a redress scheme should commission further work to develop this matrix and the detailed assessment procedures and guidelines required to implement it:
a. in accordance with our discussion of the factors
b. taking into account expert advice in relation to institutional child sexual abuse, including child development, medical, psychological, social and legal perspectives
c. with the benefit of actuarial advice in relation to the actuarial modelling on which the level and spread of monetary payments and funding expectations are based.
19. The appropriate level of monetary payments under redress should be:
a. a minimum payment of $10,000
b. a maximum payment of $200,000 for the most severe case
c. an average payment of $65,000.
20. Monetary payments should be assessed and paid without any reduction to repay past Medicare expenses, which are to be repaid (if required) as part of the administration costs of a redress scheme.
21. Consistent with our view that monetary payments under redress are not income for the purposes of social security, veterans’ pensions or any other Commonwealth payments, those who operate a redress scheme should seek a ruling to this effect to provide certainty for survivors.
22. Those who operate a redress scheme should give consideration to offering monetary payments by instalments at the option of eligible survivors, taking into account the likely demand for this option from survivors and the cost to the scheme of providing it.
23. Survivors who have received monetary payments in the past – whether under other redress schemes, statutory victims of crime schemes, through civil litigation or otherwise – should be eligible to be assessed for a monetary payment under redress.
24. The amount of the monetary payments that a survivor has already received for institutional child sexual abuse should be determined as follows:
a. monetary payments already received should be counted on a gross basis, including any amount the survivor paid to reimburse Medicare or in legal fees
b. no account should be taken of the cost of providing any services to the survivor, such as counselling services
c. any uncertainty as to whether a payment already received related to the same abuse for which the survivor seeks a monetary payment through redress should be resolved in the survivor’s favour.
25. The monetary payments that a survivor has already received for institutional child sexual abuse should be taken into account in determining any monetary payment under redress by adjusting the amount of the monetary payments already received for inflation and then deducting that amount from the amount of the monetary payment assessed under redress.
Redress scheme structure
26. In order to provide redress under the most effective structure for ensuring justice for survivors, the Australian Government should establish a single national redress scheme.
27. If the Australian Government does not establish a single national redress scheme, as the next best option for ensuring justice for survivors, each state and territory government should establish a redress scheme covering government and non-government institutions in the relevant state or territory.
28. The Australian Government should determine and announce by the end of 2015 that it is willing to establish a single national redress scheme.
29. If the Australian Government announces that it is willing to establish a single national redress scheme, the Australian Government should commence national negotiations with state and territory governments and all parties to the negotiations should seek to ensure that the negotiations proceed as quickly as possible to agree the necessary arrangements for a single national redress scheme.
30. If the Australian Government does not announce that it is willing to establish a single national redress scheme, each state and territory government should establish a redress scheme for the relevant state or territory that covers government and non-government institutions. State and territory governments should undertake national negotiations as quickly as possible to agree the necessary matters of detail to provide the maximum possible consistency for survivors between the different state and territory schemes.
31. Whether there is a single national redress scheme or separate state and territory redress schemes, the scheme or schemes should be established and ready to begin inviting and accepting applications from survivors by no later than 1 July 2017.
32. The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should establish a national redress advisory council to advise all participating governments on the establishment and operation of the redress scheme or schemes.
33. The national redress advisory council should include representatives:
a. of survivor advocacy and support groups
b. of non-government institutions, particularly those that are expected to be required to respond to a significant number of claims for redress
c. with expertise in issues affecting survivors with disabilities
d. with expertise in issues of particular importance to Aboriginal and Torres Strait Islander survivors
e. with expertise in psychological and legal issues relevant to survivors
f. with any other expertise that may assist in advising on the establishment and operation of the redress scheme or schemes.
Redress scheme funding
34. For any application for redress made to a redress scheme, the cost of redress in respect of the application should be:
a. a proportionate share of the cost of administration of the scheme
b. if the applicant is determined to be eligible, the cost of any contribution for counselling and psychological care in respect of the applicant
c. if the applicant is determined to be eligible, the cost of any monetary payment to be made to the applicant.
35. The redress scheme or schemes should be funded as much as possible in accordance with the following principles:
a. The institution in which the abuse is alleged or accepted to have occurred should fund the cost of redress.
b. Where an applicant alleges or is accepted to have experienced abuse in more than one institution, the redress scheme or schemes should apportion the cost of funding redress between the relevant institutions, taking account of the relative severity of the abuse in each institution and any other features relevant to calculating a monetary payment.
c. Where the institution in which the abuse is alleged or accepted to have occurred no longer exists but the institution was part of a larger group of institutions or where there is a successor to the institution, the group of institutions or the successor institution should fund the cost of redress.
36. The Australian Government and state and territory governments should provide ‘funder of last resort’ funding for the redress scheme or schemes so that the governments will meet any shortfall in funding for the scheme or schemes.
37. Regardless of whether there is a single national redress scheme or separate state and territory redress schemes, the Australian Government and each state or territory government should negotiate and agree their respective shares of or contributions to ‘funder of last resort’ funding in respect of applications alleging abuse in the relevant state or territory.
38. The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should determine how best to raise the required funding for the redress scheme or schemes, including government funding and funding from non-government institutions.
39. The Australian Government or state and territory governments should determine whether or not to require particular non-government institutions or particular types of non-government institutions to contribute funding for redress.
Trust fund for counselling and psychological care
40. The redress scheme, or each redress scheme, should establish a trust fund to receive the funding for counselling and psychological care paid under redress and to manage and apply that funding to meet the needs for counselling and psychological care of those eligible for redress under the relevant redress scheme.
41. The trust fund, or each trust fund, should be governed by a corporate trustee with a board of directors appointed by the government that establishes the relevant redress scheme. The board or each board should include:
a. an independent Chair
b. a representative of: government; non-government institutions; survivor advocacy and support groups; and the redress scheme
c. those with any other expertise that is desired at board level to direct the trust.
42. The trustee, or each trustee, should engage actuaries to conduct regular actuarial assessments to determine a ‘per head’ estimate of future counselling and psychological care costs to be met through redress. The trustee, or each trustee, should determine the amount from time to time that those who fund redress, including as the funder of last resort, must pay per eligible applicant to fund the counselling and psychological care element of redress.
Eligibility for redress
43. A person should be eligible to apply to a redress scheme for redress if he or she was sexually abused as a child in an institutional context and the sexual abuse occurred, or the first incidence of the sexual abuse occurred, before the cut-off date.
44. ‘Institution’ should have the same meaning as in the Royal Commission’s terms of reference.
45. Child sexual abuse should be taken to have occurred in an institutional context in the following circumstances:
a. it happens: i. on premises of an institution ii. where activities of an institution take place or iii. in connection with the activities of an institution in circumstances where the institution is, or should be treated as being, responsible for the contact between the abuser and the applicant that resulted in the abuse being committed
b. it is engaged in by an official of an institution in circumstances (including circumstances that involve settings not directly controlled by the institution) where the institution has, or its activities have, created, facilitated, increased, or in any way contributed to (whether by act or omission) the risk of abuse or the circumstances or conditions giving rise to that risk
c. it happens in any other circumstances where the institution is, or should be treated as being, responsible for the adult abuser having contact with the applicant.
46. Those who operate the redress scheme should specify the cut-off date as being the date on which the Royal Commission’s recommended reforms to civil litigation in relation to limitation periods and the duty of institutions commence.
47. An offer of redress should only be made if the applicant is alive at the time the offer is made. The trustee, or each trustee, should engage actuaries to conduct regular actuarial assessments to determine a ‘per head’ estimate of future counselling and psychological care costs to be met through redress. The trustee, or each trustee, should determine the amount from time to time that those who fund redress, including as the funder of last resort, must pay per eligible applicant to fund the counselling and psychological care element of redress. 
Duration of a redress scheme
48. A redress scheme should have no fixed closing date. But, when applications to the scheme reduce to a level where it would be reasonable to consider closing the scheme, those who operate the redress scheme should consider specifying a closing date for the scheme. The closing date should be at least 12 months into the future. Those who operate the redress scheme should ensure that the closing date is given widespread publicity until the scheme closes.
Publicising and promoting the availability of the scheme
49. Those who operate a redress scheme should ensure the availability of the scheme is widely publicised and promoted.
50. The redress scheme should consider adopting particular communication strategies for people who might be more difficult to reach, including:
a. Aboriginal and Torres Strait Islander communities
b. people with disability
c. culturally and linguistically diverse communities
d. regional and remote communities
e. people with mental health difficulties
f. people who are experiencing homelessness
g. people in correctional or detention centres
h. children and young people
i. people with low levels of literacy
j. survivors now living overseas.
Application process
51. A redress scheme should rely primarily on completion of a written application form.
52. A redress scheme should fund support services and community legal centres to assist applicants to apply for redress.
53. A redress scheme should select support services and community legal centres to cover a broad range of likely applicants, taking into account the need to cover regional and remote areas and the particular needs of different groups of survivors, including Aboriginal and Torres Strait Islander survivors.
54. Those who operate a redress scheme should determine whether the scheme will require additional material or evidence and additional procedures to determine the validity of applications. Any additional requirements should be clearly set out in scheme material that is made available to applicants, support services and others who may support or advise applicants in relation to the scheme.
55. A redress scheme may require applicants for redress to verify their accounts of abuse by statutory declaration. Institutional involvement
56. A redress scheme should inform any institution named in an application for redress of the application and the allegations made in it and request the institution to provide any relevant information, documents or comments.
Standard of proof
57. ‘Reasonable likelihood’ should be the standard of proof for determining applications for redress.
Decision making on a claim
58. A redress scheme should adopt administrative decision-making processes appropriate to a large-scale redress scheme. It should make decisions based on the application of the detailed assessment procedures and guidelines for implementing the matrix for monetary payments.
Offer and acceptance of offer
59. An offer of redress should remain open for acceptance for a period of one year.
60. A period of three months should be allowed for an applicant to seek a review of an offer of redress after the offer is made.
Review and appeals
61. A redress scheme should offer an internal review process.
62. A redress scheme established on an administrative basis should be made subject to oversight by the relevant ombudsman through the ombudsman’s complaints mechanism.
Deeds of release
63. As a condition of making a monetary payment, a redress scheme should require an applicant to release the scheme (including the contributing government or governments) and the institution from any further liability for institutional child sexual abuse by executing a deed of release.
64. A redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases.
65. No confidentiality obligations should be imposed on applicants for redress.
Support for survivors
66. A redress scheme should offer and fund counselling during the period from assisting applicants 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. This should include a session of financial counselling if the applicant is offered a monetary payment.
67. A redress scheme should fund counselling provided by a therapist of the applicant’s choice if it is specifically requested by the applicant and in circumstances where the applicant has an established relationship with the therapist and the cost is reasonably comparable to the cost the redress scheme is paying for these services generally.
68. A redress scheme should offer and fund a limited number of counselling sessions for family members of survivors if reasonably required. Transparency and accountability 69. A redress scheme should take the following steps to improve transparency and accountability:
a. In addition to publicising and promoting the availability of the scheme, the scheme’s processes and time frames should be as transparent as possible. The scheme should provide up-to-date information on its website and through any funded counselling and support services and community legal centres, other relevant support services and relevant institutions.
b. If possible, the scheme should ensure that each applicant is allocated to a particular contact officer who they can speak to if they have any queries about the status of their application or the timing of its determination and so on. 
c. The scheme should operate a complaints mechanism and should welcome any complaints or feedback from applicants and others involved in the scheme (for example, support services and community legal centres).
d. The scheme should provide any feedback it receives about common problems that have been experienced with applications or institutions’ responses to funded counselling and support services and community legal centres, other relevant support services and relevant institutions. It should include any suggestions on how to improve applications or responses or ensure more timely determinations.
e. The scheme should publish data, at least annually, about: i. the number of applications received ii. the institutions to which the applications relate iii. the periods of alleged abuse iv. the number of applications determined v. the outcome of applications vi. the mean, median and spread of payments offered vii. the mean, median and spread of time taken to determine the application viii. the number and outcome of applications for review. Interaction with alleged abuser, disciplinary process and police
70. A redress scheme should not make any ‘findings’ that any alleged abuser was involved in any abuse.
71. A redress scheme may defer determining an application for redress if the institution advises that it is undertaking internal disciplinary processes in respect of the abuse the subject of the application. A scheme may have the discretion to consider the outcome of the disciplinary process, it if is provided by the institution, in determining the application.
72. A redress scheme should comply with any legal requirements, and make use of any permissions, to report or disclose abuse, including to oversight agencies.
73. A redress scheme should report any allegations to the police if it has reason to believe that there may be a current risk to children. If the relevant applicant does not consent to the allegations being reported to the police, the scheme should report the allegations to the police without disclosing the applicant’s identity. Note: The issue of reporting to police, including blind reporting, will be considered further in our work in relation to criminal justice issues.
74. A redress scheme should seek to cooperate with any reasonable requirements of the police in terms of information sharing, subject to satisfying any privacy and consent requirements with applicants.
75. A redress scheme should encourage any applicants who seek advice from it about reporting to police to discuss their options directly with the police. Interim arrangements
76. Institutions should seek to achieve independence in institutional redress processes by taking the following steps:
a. Institutions 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.
b. 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.
c. Institutions 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.
d. Institutions should ensure that any processes or interactions with survivors are respectful and empathetic, including by taking into account the factors discussed in Chapter 5 concerning meetings and meeting environments.
e. Processes and interactions should not be legalistic. Any legal, medical and other relevant input should be obtained for the purposes of decision making.
77. Institutions should ensure that the required independence is set out clearly in writing between the institution and any person or body the institution engages as part of its redress process.
78. If a survivor alleges abuse in more than one institution, the institution to which the survivor applies for redress should adopt the following process:
a. With the survivor’s consent, the institution’s redress process should approach the other named institutions to seek cooperation on the claim.
b. If the survivor consents and the relevant institutions agree, one institutional process should assess the survivor’s claim in accordance with the recommended redress elements and processes (with any necessary modifications because of  the absence of a government-run scheme) and allocate contributions between the institutions.
c. If any institution no longer exists and has no successor, its share should be met by the other institution or institutions.
79. Institutions should adopt the elements of redress and the general principles for providing redress recommended in Chapter 4.
80. Institutions should undertake, through their redress processes, to meet survivors’ needs for counselling and psychological care. A survivor’s need for counselling and psychological care should be assessed independently of the institution.
81. Institutions should adopt the purpose of monetary payments recommended in Chapter 7 and be guided by the recommended matrix for assessing monetary payments.
82. In implementing any interim arrangements for institutions to offer and provide redress, institutions should take account of our discussion of the applicability of the redress scheme processes recommended in Chapter 11.
83. Institutions should ensure no deeds of release are required under interim arrangements for institutions to offer and provide redress.
84. If the Australian Government or state and territory governments accept our recommendations and announce that they are working to establish a single national redress scheme or separate state and territory redress schemes, institutions may wish to offer smaller interim or emergency payments as an alternative to offering institutional redress processes as interim arrangements.
Limitation periods
85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.
86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.
87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.
88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.
Duty of institutions 
89. State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.
90. The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service:
a. residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care
b. day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs
c. disability services for children d. health services for children e. any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care
f. any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or kinship care.
91. Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.
92. For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the religious organisation.
93. State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively.
Identifying a proper defendant
94. State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings: a. the property trust is a proper defendant to the litigation b. any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.
95. The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims.
Model litigant approaches
96. Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse.
97. The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims.
98. The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified.
99. Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives.