Elvis

'Long Live the King: The Influence of Elvis Presley on the Right of Publicity in Tennessee' by Annie Christoff in (2011) 41(4) The University of Memphis Law Review 667 comments

Elvis Presley's career is without parallel in the entertainment industry. From his first hit record in 1954 until his death in 1977, he scaled the heights of fame and success that only a few have attained. His twenty-three year career as a recording star, concert entertainer, and motion picture idol brought him international recognition and a devoted following in all parts of the nation and the world.'

In examining the right of publicity, a principle that recognizes an individual's exclusive right to commercially exploit his or her own name and likeness, the laws of three jurisdictions come to the forefront as providing the most influential authority on the doctrine - New York, California, and Tennessee. Given that the right of publicity is commonly associated with and asserted by celebrities, who are most likely to be able to profit from their personalities, the credence given to the treatment of the doctrine in states with high concentrations of the rich and famous, such as New York and California, is not surprising. In terms of sheer numbers of famous citizens, Tennessee is certainly the outlier of the three, even considering the country music Mecca that is Nashville. Upon consideration, however, of those celebrities with the most interest in protecting their images - that is, celebrities with the most distinctive, most recognizable, and most marketable personas - the respect for Tennessee's jurisprudence on the right of publicity becomes imminently understandable, as Tennessee's courts and legislators were entrusted with the protection of perhaps the largest personality of all - Elvis Presley.

In contrast to New York and California, whose law developed from litigation involving many different celebrities, some beloved and others less so, Tennessee's most influential right-of- publicity cases involve the estate of Elvis Presley, resulting in a body of law that sprang from the efforts to protect the rights of one man. This singular purpose led to distinctive protections not previously seen in other states and placed Tennessee on the cutting edge of the advancement of the doctrine. Thus, Tennessee's esteemed jurisprudence on the right of publicity is not simply a historical accident resulting from the fact that Elvis lived in Memphis; rather, the whole of that jurisprudence is derived from a desire to protect the identity of Elvis and his exclusive rights in that identity. In other words, Tennessee's right of publicity was not just developed because of Elvis, it was developed for Elvis. This loyalty of Tennessee jurists and lawmakers is likely due not only to the undeniably immense value of Elvis's persona, but also to his association with the state of Tennessee and, in particular, his adopted hometown of Memphis.

This Article analyzes the development of Tennessee law on the right of publicity and Elvis's influence on that development. Part II traces the origins of the doctrine and highlights the different interests and protections afforded in different jurisdictions. Part III provides a brief overview of Elvis's popularity in popular culture in general and the nation's jurisprudence in particular. Part IV focuses on the cases and statutes that developed and now govern the right of publicity in Tennessee. Part V explains the role that Elvis and his estate played, both directly and indirectly, in the formation of that law and discusses the reasons Elvis was so influential to Tennessee's approach, concluding that the particular brand of the right of publicity recognized in Tennessee is a direct result of the particular personality at issue, with the lasting legacy of Elvis Presley firmly imprinted on the law of this state.

Christoff goes on to comment

The General Assembly enacted the "Personal Rights Protection Act of 1984," which provides that "[e]very individual has a property right in the use of that person's name, photograph, or likeness in any medium in any manner." That the statute creates a property right that continues after the death of the individual and is descendible is made clear in multiple provisions. First, the term "individual" is defined as "human being, living or dead." The statute also reite- rates that the rights created are "property rights" that "are freely assignable and licensable, and do not expire upon the death of the individual so protected, whether or not such rights were commercially exploited by the individual during the individual's lifetime, but shall be descendible to the executors, assigns, heirs, or devisees of the individual so protected by this part." The rights are "exclusive to the individual ... during such individual's lifetime and to the executors, heirs, assigns, or devisees for a period of ten (10) years after the death of the individual." The statute does not actually limit its protection to ten years, however; so long as the assignee of the rights continues to use the individual's name, likeness, or image for commercial purposes, the rights exist in perpetuity. Following the initial ten years of unconditional protection, non-use for a period of two years will result in termination of the exclusive right.' In addition to the General Assembly's efforts to ensure that the right of publicity was not extinguished at death in Tennessee, the Tennessee Court of Appeals confirmed the descendibility of the right under the common law as well.

The imprint of Elvis on Tennessee's law on the right of publicity is undeniable, and there are several reasons for that imprint. First, of course, as discussed above, Elvis was on the courts' minds in defining the right of publicity because Elvis was literally on their dockets. With the sole exception of the Commerce Union Bank case, each of the formative decisions establishing the standard for the right of publicity under Tennessee common law involves a case where the Presley estate, or its assigns, was one of the parties.' It is surely understandable that the courts seeking to determine what rights a celebrity has to the exclusive enjoyment of his persona would be influenced by the very persona they were deciding whether to protect. That singularity of purpose is perhaps also a reason that Tennessee's version of the doctrine is considered so strong when compared to that of other jurisdictions.'

Second, Elvis's involvement in the development of the law appears to have been an intentional tactic employed by his estate. It is no accident, for example, that the Tennessee statute has such a purposeful focus on establishing that the rights created therein are descendible, which would obviously be of benefit to Elvis's estate, as Elvis was already deceased when the law was passed. Known as "Elvis law,"' the statute was sponsored by the Presley estate. Both the estate and Elvis Presley Enterprises have also aggressively pursued litigation to enforce their intellectual property rights, in many instances forcing the courts to forge into new areas of the law with previously imprecise doctrines. "The Estate of Elvis Presley succeeded on both the legal and legislative fronts in garnering rights in the Presley image."

Finally, particularly in the province of judicial decisions, the landscape of Tennessee's law on publicity rights was likely formed with a subconscious intention of protecting Elvis as the jurisdiction's dearest natural resource. As discussed, the theoretical justifications for publicity protection, though numerous, are conceptually suspect. In the absence of a concrete foundational theory, the choices made in drawing the boundaries for the right of publicity doctrine were left to largely provincial concerns; indeed, perhaps it is precisely because there is no strong theoretical basis for the right of publicity that those boundaries are drawn so differently from jurisdiction to jurisdiction. For Tennessee, and Memphis in particular, that concern was protection of Elvis, the favorite son-not just protection of his image, that it remained un- sullied, or protection of the interests of his only heir, Lisa Marie, who was under ten years old when her father died, but also protection of the community's pride in its association with Elvis and the economic advantage to be reaped from that relationship. In other jurisdictions, where the celebrities are more numerous, or less be- loved, or both, those concerns are not as great and the resulting protection not as strong."' As much as Elvis is a product of his environment, so is Tennessee's right of publicity a product of Elvis.

Consumers

The Productivity Commission draft report on Consumer Law enforcement and administration features the following 'Recommendations, findings and information requests'

Assessments of the multiple regulator model

DRAFT FINDING 3.1 The multiple regulator model appears to be operating reasonably effectively given the intrinsic difficulties of having 10 regulators administer and enforce one law. However, the limited evidence available on regulators’ resources and performance makes definitive assessments difficult. Enhanced performance reporting requirements (Draft Recommendation 4.2) would help address this limitation.

DRAFT FINDING 3.2 The Australian Consumer Law (ACL) regulators communicate, coordinate and collaborate with each other through well developed governance arrangements, and have mechanisms in place to promote consistent approaches to the interpretation and application of the ACL. Nevertheless, the multiple regulator model allows for differences among jurisdictions in approaches to aspects of their administration and enforcement of the ACL, which likely create inconsistent outcomes for consumers and for businesses.

INFORMATION REQUEST The Commission invites further comment and detailed information on: • the nature of inconsistencies, including specific examples, in the approaches of the ACL regulators to administration and enforcement • the materiality of these inconsistencies for consumers and/or businesses • options for addressing inconsistencies across ACL regulators.

DRAFT FINDING 3.3 ACL regulators have developed policies and protocols to implement strategic and proportionate approaches to compliance and enforcement, including prioritising matters that represent higher levels of risk to consumers. The extent to which these are implemented in practice is likely to vary across regulators.

The generic national product safety regime

DRAFT RECOMMENDATION 4.1 The State and ACT governments should relinquish their powers to impose compulsory recalls or interim bans. This would signal that it is the Commonwealth’s responsibility to immediately respond to all product safety issues that warrant a compulsory recall or ban. In parallel with any such change in responsibilities, there should be a mechanism for State and Territory governments to raise and provide input on product safety matters to the Australian Competition and Consumer Commission (ACCC) that they consider would warrant a compulsory recall or ban.

DRAFT FINDING 4.1 The Commonwealth Government’s regulation impact assessment requirements may impede the timely implementation of national interim product bans. There is a case to amend the requirements to exempt interim bans from such assessments. Permanent product bans should continue to be subject to the existing regulatory impact assessment requirements.

Performance reporting

DRAFT RECOMMENDATION 4.2 ACL regulators should publish a comprehensive and comparable set of performance metrics and information to enhance their public accountability and enable improved regulator performance. Consumer Affairs Australia and New Zealand (CAANZ) could be charged to develop a reporting framework with a view to providing meaningful metrics and information on: • resources expended on regulator activities • the range and nature of regulator activities • behavioural changes attributable to regulator activities • outcomes attributable to regulator activities.

A national database

DRAFT FINDING 4.2 A national database of complaints and product safety incidents has merit. It would enable better identification and analysis of consumer hazards and risks, and help focus ACL regulators’ compliance and enforcement activity. CAANZ should examine the impediments to establishing such a database, its likely benefits and costs, and, subject to the findings of that analysis, develop a plan to implement such a system. CAANZ should also consider what information from the database should be publicly available.

Enforcement tools and penalties

DRAFT FINDING 4.3 There are some small differences in the enforcement powers of the ACL regulators across jurisdictions. There is scope to improve consistency in infringement notice powers and other additional remedies that the States and Territories have introduced to augment the ACL ‘toolkit’.

DRAFT FINDING 4.4 Australian governments should increase maximum penalties for breaches of the ACL. They should consider the option, being examined by CAANZ, of aligning them with the penalties for breaches of competition provisions in the Competition and Consumer Act 2010.

Interaction between ACL and specialist regulators

DRAFT FINDING 5.1 While interaction between ACL and specialist safety regulators generally works well, some changes are warranted. Options to improve the response to product safety concerns currently dealt with by joint ACL and specialist regulators’ actions include: • instituting formal arrangements to guide cooperation and coordination between building regulators and ACL regulators, and between the ACCC and some national specialist safety regulators • expanding the regulatory tools and remedies available to specialist safety regulators (or at least developing a process to allow them to better harness the national reach of regulatory powers under the ACL) • introducing greater consistency of legislation underpinning the specialist safety regime for electrical goods.

INFORMATION REQUEST Are there particular impediments to establishing a lead or home regulator approach at the intrastate and territory level and, if so, how might those impediments be addressed?

INFORMATION REQUEST Is introducing or expanding data sharing among specialist regulators themselves, and between specialist regulators and ACL regulators, feasible? Where might it occur (and how might it be introduced)? What might be the benefits of introducing or expanding data sharing arrangements in terms of improving the interaction between ACL and specialist regulators?

INFORMATION REQUEST Where are there ‘gaps’ in the regulatory powers of specialist safety regulators that require them to have recourse to ACL regulators’ powers to address product safety issues within the specialist regulators remit? What changes might be made to ‘fill the gaps’ in the specialist safety regulators’ toolkit of remedies and what might be the implementation pathway to provide those additional powers?

INFORMATION REQUEST What is needed to progress the move to national consistency among all State and Territory electrical safety regimes?

Industry specific consumer regulation

DRAFT FINDING 6.1 Australian governments should review, and revitalise as necessary, progress in relation to Recommendation 5.1 from the Productivity Commission’s 2008 Review of Australia’s Consumer Policy Framework. That recommendation called for a process to review and reform industry specific consumer regulation that would, among other things, identify unnecessary divergences in state and territory regulation and consider the case for transferring policy and enforcement responsibilities to the Commonwealth Government.

Consumer redress

INFORMATION REQUEST Are there gaps or deficiencies in the current dispute resolution services provided by the ACL regulators that a retail ombudsman would fill? What incentives would attract retailers to sign up to such a scheme and observe its determinations? How could the scheme be funded? The Commission seeks further detail on the extent to which the dispute resolution services offered by the State and Territory ACL regulators meet/fall short of the Commission’s 2008 recommendation for effective, properly resourced, government funded alternative dispute resolution (ADR) mechanisms that deal consistently with all consumer complaints? Does the case for the ADR review mechanism as outlined in 2008 remain? Are there impediments to its implementation and, if so, how could these be addressed?

DRAFT FINDING 6.2

There is scope to improve the transparency and effectiveness of the dispute resolution services provided by the State and Territory ACL regulators through: • applying the Commonwealth Government’s Benchmarks for Industry Based Customer Dispute Resolution Schemes to the services provided by the ACL regulators • establishing a formal cooperative mechanism between the various regulators, alternative dispute resolution schemes and other stakeholders to reassess every five years the nature and structure of alternative dispute resolution arrangements to achieve best practice and address redundancies or new needs — as per recommendation 9.2 from the Commission’s 2008 Review of Australia’s Consumer Policy Framework.

INFORMATION REQUEST To what extent have consumers received an additional benefit from the New South Wales super complaint pilot? Has it resulted in an additional burden for the regulator or businesses? Are there gaps in the current activities of the ACL regulators that this process would fill?

Research and advocacy as inputs into policy

INFORMATION REQUEST Is there still a need for additional funding for consumer policy research as envisaged in the Commission’s 2008 Review of Australia’s Consumer Policy Framework?

DRAFT FINDING 6.3 In its 2008 Review of Australia’s Consumer Policy Framework, the Commission identified material gaps in consumer input in policy processes. The Commission considers that recommendation 11.3 from the 2008 report — which in part directs the Commonwealth Government to provide additional public funding to support consumer advocacy — should be revisited.

The draft report accordingly identifies the following 'key points' -

• Despite the adoption of a single Australian Consumer Law (ACL) in 2011, Australia’s consumer protection framework remains complex:

– Two Commonwealth and eight State and Territory regulators administer and enforce the generic ACL.

– Numerous specialist safety regulatory regimes complement the ACL.

– Redress is provided via ombudsmen, tribunals and courts, as well as most ACL regulators.

• The multiple regulator model for the ACL appears to be operating reasonably effectively given the intrinsic challenges in having 10 regulators administer and enforce one law.

– The ACL regulators communicate, coordinate and collaborate with each other through well developed governance arrangements.

– Some regulators have been criticised for undertaking insufficient enforcement. Limited resources may partly explain this.

– However, the limited evidence available on regulators’ resources and performance makes definitive assessments difficult.

• There is scope to strengthen the ACL’s administration and enforcement. Matters to be addressed include:

– developing a national database of consumer complaints and incidents

– providing all State and Territory ACL regulators with the full suite of enforcement tools

– increasing maximum financial penalties for breaches of the ACL

– exempting interim product bans from Commonwealth regulatory impact assessments

– centralising powers for interim product bans and compulsory recalls in the ACCC

– improving the transparency of the resourcing and performance of the ACL regulators.

• The ACL regulators and specialist safety regulators generally understand the delineation of their remits and interact effectively, notwithstanding a handful of problematic cases. Consumers and suppliers are not always clear about which regulator to contact but they are typically redirected to the right regulator in a timely manner.

• Interactions between ACL and specialist safety regulators could be enhanced through:

– greater information sharing between ACL and specialist regulators

– addressing deficiencies in the tools and remedies available to specialist regulators

– regular national forums of building and construction regulators

– greater national consistency in the laws underpinning electrical goods safety.

• Governments should revisit previous Productivity Commission recommendations on industry specific consumer regulation, consumer dispute resolution, consumer research and advocacy, and access to justice.

Open Government Action Plan

The Open Government Action Plan released today by the national government features the following commitments, several of which are deliciously tongue in cheek (and dead on arrival as casualties of interdepartmental rivalries).

Commitment 1.1: Improve whistle-blower protections in the tax and corporate sectors

Objective and description: Australia will ensure appropriate protections are in place for people who report corruption, fraud, tax evasion or avoidance, and misconduct within the corporate sector. We will do this by improving whistle-blower protections for people who disclose information about tax misconduct to the Australian Taxation Office. We will also pursue reforms to whistle-blower protections in the corporate sector, with consultation on options to strengthen and harmonise these protections with those in the public sector.

Status Quo: The prevention of corruption, waste, tax evasion or avoidance and fraud relies upon appropriate protections for people who report these wrongdoings. Australian public servants who act as whistle-blowers have some protection under the Public Interest Disclosure Act 2013 (PID Act). While there are also protections available to corporate whistle-blowers, those protections lag behind the PID Act and protections available to whistle-blowers in other countries (such as the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 in the United States, and the Public Interest Disclosure Act 1998 (amended in 2013) in the United Kingdom). Current protections in the corporate sector are overly narrow and make it unnecessarily difficult for those with information to qualify for protections. In the 2016-17 Budget, the Government also announced it would introduce whistle blower protections for people who disclose information about tax misconduct to the Australian Taxation Office. A research project into public interest whistleblowing, Whistling While They Work 2, is currently being led by Griffith University and is looking into improvements across the public and private sectors. The project is partly funded by the Australian Research Council, and its initial survey of organisational processes and procedures is now available at www.whistlingwhiletheywork.edu.au.

Ambition: To reduce corruption, waste, tax evasion or avoidance, and fraud by ensuring protections are in place for people who report such activities.

Relevance: This commitment will advance the OGP values of public accountability and transparency by: • encouraging, protecting and compensating whistle-blowers whose information reveals artificial tax structures and misconduct; and • reducing other forms of corruption, fraud and misconduct by ensuring corporate whistle-blowers are also encouraged, protected and compensated.

Commitment 1.2: Beneficial ownership transparency

Objective and description: Australia will improve transparency of information on beneficial ownership and control of companies available to relevant authorities. As part of this, we will consult with the corporate sector, non-government organisations and the public on the details, scope and implementation of a beneficial ownership register for companies, as well as other options to improve beneficial ownership transparency.

Status Quo: Improving transparency around who owns and benefits from companies is critical to protecting the integrity of our financial system and preventing the misuse of corporate structures for corruption and criminal activity. A beneficial ownership register shows who ultimately owns and benefits from the activities of companies. Australia currently has tracing powers for beneficial ownership of listed companies and investment schemes, but there is room to strengthen transparency across all companies. Australia has committed to the G20 Principles on Beneficial Ownership. The Principles state that countries should ensure that relevant authorities (including law enforcement and prosecutorial authorities, supervisory authorities, tax authorities and financial intelligence units) have timely access to adequate, accurate and current information regarding the beneficial ownership of legal persons (companies).

Ambition: To ensure that adequate, accurate and timely information on beneficial ownership and control is available to relevant authorities in Australia to address issues of tax evasion, money laundering, corruption and terrorist financing. To improve regional and international cooperation on taxation, including strengthening information sharing between tax authorities and sharing learnings to increase the transparency of beneficial ownership information. We will use outcomes of the work by the Financial Action Task Force (FATF) and the Global Forum on Transparency and Exchange of Information for Tax Purposes to help develop proposals to improve implementation of relevant international standards on transparency, including on the availability and exchange of companies’ beneficial ownership information.

Relevance: This commitment will advance the OGP values of transparency and accountability in business by: • improving the effectiveness of our legal, regulatory and institutional frameworks; • preventing the misuse of corporate structures for illicit purposes such as corruption, tax evasion and money laundering; • protecting the integrity of the financial system; and • increasing growth through private sector investment.  

Commitment 1.3: Extractive industries transparency

Objective and description: Australia will enhance disclosure of company payments and government revenues from the oil, gas and mining sectors. We will do this by implementing the Extractive Industries Transparency Initiative (EITI) Standard (including working to enhance company disclosure of payments to governments for the sale of petroleum and minerals) and by continuing to support the application of EITI principles around the world.

Status Quo: The sustainable development of natural resources (oil, gas and minerals) requires transparent and accountable management of revenue received from these industries, including taxes, royalties and other payments. The EITI is a global standard to promote the open and accountable management of natural resources. The Australian Government has been a major supporter of the EITI, committing more than A$20 million since 2007. Australia announced its intention to seek EITI compliance on 6 May 2016, following a pilot to test the applicability of EITI rules and principles to Australian conditions between 2011 and 2014. State and territory governments support the Australian EITI and will participate directly in the implementation process. The EITI Standard will require companies and governments to report annually on governance and payments in the oil, gas and mining sectors. It will also require enhanced transparency of beneficial ownership information (related to commitment 1.2). The oil, gas and mining industries face increasing scrutiny. Our commitment to the EITI Standard will help to build the public trust necessary for an enduring and sustainable industry.

Ambition: To enhance transparency and accountability in the extractive industries sector.

Relevance: This commitment will advance the OGP values of access to information and public accountability by: • providing timely, reliable, publicly available and independently verified data on the extractives industries’ contribution to the Australian economy; • encouraging EITI adoption in resource-rich countries and support a level playing field for Australian companies seeking to invest in those markets; • demonstrating Australia’s commitment to global transparency, anti-corruption and tackling tax avoidance; consistent with current domestic and international trends; and • supporting the extractive industries’ social licence to operate, demonstrating its commitment to transparent and accountable operations.

Commitment 1.4: Combating corporate crime

Objective and description: Australia will strengthen its ability to prevent, detect and respond to corporate crime, particularly bribery of foreign public officials, money laundering, and terrorism financing. We will do this by pursuing reforms to relevant legislative frameworks, which will involve a process of public consultation.

Status Quo: Australia has strong laws in place to deal with corporate crime. We are a party to the OECD Anti-Bribery Convention, and are due to be reviewed again under this Convention in 2017. The Criminal Code Act 1995 makes it an offence to bribe a foreign public official and sets out tough penalties for individuals and companies. While we have two sets of foreign bribery prosecutions underway, it is a challenging offence to enforce as the offending typically occurs overseas and can be difficult to proactively detect. We also have a strong regime to fight money laundering and terrorism financing under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. A statutory review of this legislation was tabled in Parliament in April 2016 and the Government is considering its response. We are also exploring new responses to corruption and corporate crime. In March 2016, we released a public discussion paper on a possible deferred prosecution agreement (DPA) scheme in Australia. An effective DPA scheme could help encourage companies to self-report criminal behaviour and provide enforcement and prosecutorial agencies with a new tool to identify and bring corporate offenders to justice.

Ambition: We will ensure that our laws applying to the bribery of foreign public officials, money laundering and terrorism financing are strong and there are no unnecessary barriers to effective prosecution. We will consult publicly on the implementation of recommendations from the statutory review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and associated Rules and Regulations. We will respond to the public consultation into whether a DPA scheme would facilitate more effective and efficient responses to bribery and corporate corruption by encouraging companies to self-report. We will review the enforcement regime of the Australian Securities and Investments Commission (ASIC), to assess the suitability of the existing regulatory tools available to it to perform its functions adequately.

Relevance: This commitment will advance the OGP values of public accountability by: • strengthening Australia’s ability to prevent, detect and respond to bribery of foreign public officials, and meet its international obligations; • improving the effectiveness of legislation to fight money laundering and terrorism financing; and • encouraging companies to self-report criminal behaviour. 

Commitment 2.1: Release high-value datasets and enable data driven innovation

Objective and description: Australia will continue to make more public data openly available and support its use to launch commercial and non-profit ventures, conduct research, make data-driven decisions, and solve complex problems. As part of this, we will work with the research, not-for-profit and private sectors to identify the characteristics of high-value public datasets, and to promote innovative use of data to drive social and economic outcomes.

Status Quo: Public data is a valuable national resource and its use and reuse can help grow the economy, improve service delivery and transform policy outcomes. While significant progress has been made to advance the public data agenda within Australia, further work needs to be done to harness the full value of this resource. The Australian Government’s Public Data Policy Statement requires Australian Government entities to make non-sensitive data open by default. While government agencies will continue to release non-sensitive data, priority should be given to releasing, curating and streamlining access to datasets which have the greatest potential to deliver social and economic outcomes for the country. Ongoing engagement with non-government stakeholders is required to identify the characteristics of high-value datasets (such as format, accessibility, metadata and attributes), and discover barriers to accessing and sharing data. The public, research, not-for-profit and private sectors can innovate with this data in order to generate new business, develop new products and services, and create social value. It is of the utmost importance though that the release of data not compromise people’s privacy and personal details. The Government has provided some support to date, including through the Open Data 500 Australia and the DataStart initiative. There is now the opportunity to build and expand on these pilot initiatives to encourage the use of public data for social and economic outcomes. In the Government’s policy for Better and More Accessible Digital Services, the Government committed to working with research, not-for-profit and private sectors to identify high-value public datasets for release. This will be supported by a public registry of significant non sensitive datasets yet to be published on data.gov.au. The Government is also establishing a $50 million Smart Cities and Suburbs Program to incentivise local councils to open up their data and collaborate with communities, local business, not-for-profits and research institutes to create innovative solutions to urban problems. The Productivity Commission has released a draft report on data availability and use that seeks to identify the characteristics (and provide examples) of public datasets that would provide high value to the public, research and private sectors, as well as the community.

Ambition: To develop an open dialogue between government and non-government sectors to identify characteristics of high-value data and to stimulate greater use and re use of public data in innovative ways.

Relevance: This commitment will advance the OGP values of access to information, technology and innovation and public participation by: • identifying and prioritising high-value datasets for priority release; • understanding how Australian businesses and not-for-profits are using public data; • stimulating use and re-use of public data in innovative ways; • encouraging the use of public data to create social value; • identifying and addressing barriers impeding the sharing of and access to data; and • fostering a dialogue on how public data can be made more useful. 

Commitment 2.2: Build and maintain public trust to address concerns about data sharing and release

Objective and description: Australia will build public trust around data sharing and release. We will do this by actively engaging with the public regarding how open data is being used to better communicate the benefits and understand public concerns, and we will improve privacy risk management capability across government.

Status Quo: In an increasingly complex and interconnected world, effective policy responses require investment in joined-up data that can provide a strong evidence-base for policy decisions. However, as the volume of data and technical capability to use it increases, we need to better inform the public about the risks and benefits of data sharing and release, and address public views and concerns, including attitudes towards privacy. It is essential that people’s privacy and personal information is protected in using and sharing data. In some cases it is not appropriate to publish or share certain datasets. The Privacy Act 1988 (Privacy Act) underpins the open data agenda and helps build public trust in data-sharing activities, but there is a need to improve capacity within government agencies to manage privacy risks when releasing data. In October 2016 the Government introduced separate pieces of legislation to amend the Privacy Act to: • make it an offence to deliberately re-identify personal information from open government data; and • introduce mandatory data breach notification provisions requiring Australian Government agencies, private sector organisations and certain other entities regulated by the Privacy Act that suffer data breaches to notify individuals whose personal information has been compromised. Data literacy across the APS is also critical. In August 2016, the Department of the Prime Minister and Cabinet released Data Skills and Capability in the Australian Public Service to help build skills and knowledge in publishing, linking and sharing public data. The Government will also improve whole of-government de identification processes by releasing guidance on publishing sensitive data. The Productivity Commission’s inquiry into data availability and use will also consider privacy safeguards and consumer rights over their data. The Government will respond to the recommendations in the Productivity Commission’s report and continue to work with the public to grow the social licence for data to empower citizens and increase transparency over government activities.

Ambition: To build trust about the use of integrated data and actively respond to public concerns about data sharing. To comply with international best practice on open data principles and participate in global fora on data.

Relevance: This commitment will advance the OGP values of transparency and public participation by: • providing greater transparency on how government is using the data it collects and protecting personal information; • enabling the public to engage with government and raise issues of concern; • enabling experts outside of government to inform public debate; and • providing more targeted and effective policy, service delivery and program evaluation.

Commitment 2.3: Digitally transform the delivery of government services

Objective and description: Australia will continue to invest in digital technologies to make government services simpler, faster and cheaper, making it easier for the public to work and interact with government. We will do this by preparing a digital transformation roadmap, and establishing public dashboards to improve transparency around the performance of government services.

Status Quo: The Digital Transformation Agency is an executive agency within the Prime Minister’s portfolio. Its mission is to lead the transformation of government services to deliver a better experience for Australians. Innovative use of digital technologies supports the open government agenda, through the provision of faster, cheaper and more accessible government services. While some progress has been made, there is an opportunity to seize the benefits of the digital revolution to improve the way government interacts with the public. The Australian Government’s Digital Service Standard requires that services are designed to ensure accessibility to all users, regardless of their ability and environment. It requires that people who use the digital service can also use the other available channels (face-to-face and telephony) if needed, without repetition or confusion.

Ambition: To use digital technologies to promote transparency and public participation in government service delivery, engaging early and often with users throughout, so that government services meet the needs of the people who use them. The Digital Transformation Agency will work with government agencies to deliver a roadmap for the digital transformation of government services with clear milestones, including delivery timelines and key performance indicators. It will also continue to work with Australian Government agencies to use dashboards to transparently measure the performance of services as required under the Digital Service Standard., and which will be benchmarked against best practice in the private sector.

Relevance: This commitment will advance the OGP values of technology and innovation and transparency by: • increasing public access to government services; • making government services more efficient and cheaper; and • increasing transparency around performance of government services.   

Commitment 3.1: Information management and access laws for the 21st century

Objective and description: Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practices.

Status Quo: In 2010, the Australian Government passed reforms to the FOI Act as part of a broader plan to improve transparency and to encourage public engagement in decision making. The 2010 reforms also included the introduction of the Information Publication Scheme, which requires agencies to provide a broad range of information on their websites, and amendments to the Archives Act to reduce the open access period for Commonwealth records from 30 to 20 years over a 10 year period. There have since been a number of reviews recommending changes to the FOI Act, including Dr Allan Hawke’s Review of Freedom of Information Laws and the Belcher Red Tape Review. Among other things, the Belcher Red Tape Review recommended the Attorney-General’s Department “begin work with relevant entities to scope and develop a simpler and more coherent legislative framework for managing and accessing government information during its life-cycle in a digital environment through staged reforms, commencing with legislation regulating archives.” The core frameworks of Australia’s information access laws (in particular the FOI Act and the Archives Act) have not been substantially altered since enacted in the early 1980s, when government operated in a paper-based environment. It is therefore appropriate to consider how access to government information is best managed into the future within the context of digital government. The implementation of Australia’s information access laws is overseen by the National Archives of Australia and the independent Office of the Australian Information Commissioner (OAIC). The Government is committed to ensuring the adequate resourcing of the OAIC to discharge its statutory functions, and provided funding for this purpose over the next four years in the 2016-17 Budget.

Ambition: To develop a simpler and more coherent legislative framework for managing and accessing government information within the context of digital government, supported by efficient and effective policies and practices.

Relevance: This commitment will advance the OGP values of access to information and public accountability by: • ensuring government information access laws are modern and capable of meeting the demands of the digital age; • increasing awareness of public access rights to government information; and • improving efficiency of processing access to information requests.  

Commitment 3.2: Understand the use of Freedom of Information

Objective and description: Australia will better measure and improve our understanding of the public’s use of rights under freedom of information laws. We will do this by working with states and territories to develop uniform metrics on public use of freedom of information access rights, and by collecting and publishing this data.

Status Quo: The right of citizens to access government held information promotes transparency of government actions and decision making. The Commonwealth, states and territories collect data and produce statistics about applications to access government information in each jurisdiction. For example, the Office of the Australian Information Commissioner currently releases statistics on access requests under the Freedom of Information Act 1982 through data.gov.au. Such information is important for measuring the effectiveness of freedom of information laws, including for benchmarking our performance internationally. However, the data collected is not uniform across jurisdictions, making it difficult to compare and analyse how freedom of information rights are used across the country. It is also varies in its consistency with international measurements of open government, including the World Justice Project’s Open Government Index. The development of consistent metrics aligned with the Open Government Index would assist in building a more complete picture of freedom of information rights in Australia and could help governments improve processing of information access requests. Metrics could include the type of applicant, application rates per capita, release rates, review rates and refusal rates.

Ambition: To facilitate an assessment of the effectiveness of Australia’s right to information laws across jurisdictions, and raise awareness about the public’s rights to access government information. This will improve understanding of the public’s utilisation of access rights, government processes and practices, and allow for international benchmarking, including against the World Justice Project’s Open Government Index

Relevance: This commitment will advance the OGP values of access to information and public accountability by: • increasing awareness of public access rights to government information; • enabling comparison of freedom of information access rights across jurisdictions and internationally; and • improving freedom of information access practices and efficiency of processing access to information requests.

Commitment 3.3: Improve the discoverability and accessibility of government data and information

Objective and description: Australia will make it easier for the public to find, access and use government data and information. We will do this by making greater use of central portals, digital platforms and other tools to improve discoverability and accessibility.

Status Quo: The creation, preservation, management and public use of government information is fundamental to open and transparent government. The availability of government records and data improves public access to information, while also driving efficient business outcomes by facilitating use and reuse of these valuable resources. It is not enough just to make these resources open; information and public data must be easy to find and accessible in order for it to be useful. The National Library of Australia’s ‘Trove’ is an example of a highly used and successful central portal. Some specific examples of areas where the government is seeking to improve public access to information include: • Public data: Data.gov.au is the Australian Government’s open data platform. It has enabled the open release of over 20,000 public resources used to grow the economy, improve service delivery and transform policy outcomes for the nation. As the number of datasets on data.gov.au grows, Australia’s public data infrastructure needs be upgraded to meet the demands of data users. This includes improving search and discovery, enhancing support for collaboration, developing a quality framework to assist publishers, and developing more robust publishing processes. • Grants: There is no central point to identify and apply for Australian Government grant opportunities and find consolidated information about grants awarded. The Department of Finance is building GrantConnect, a central whole-of-government system that will forecast and publish grant opportunities, automatically notify public users of grant opportunities of interest, and publish information on grants awarded. • Corporate and administrative reporting: Corporate and administrative reporting information is currently located on individual agency websites or in hard copy, making it difficult to compare and contrast documents. The Department of Finance is working to make reporting information more discoverable and accessible through the digitisation of this information. • Archived records: The most significant records of the Australian Government are held by the National Archives of Australia. To facilitate citizens’ access to these records through digital and online channels, the Archives will continue to lead the transition from paper to digital information practices in Australian Government agencies, digitise paper records of high research value and increase the number of records available for public access. • Environmental information: The Department of the Environment and Energy compiles significant data to produce its State of the Environment report and meet its other responsibilities (such as research into the impacts of coal and coal seam gas developments on ground water). The Department will make the State of the Environment 2016 report and its underlying data more accessible through SoE Digital (an innovative and interactive online platform) and data.gov.au. It will use data visualisation tools to help publish the results of its coal and coal seam gas bioregional assessments.

Ambition: To make it as easy as possible to find, access and use government information and data. This will include making greater use of centralised, easy to access portals for information (e.g. for grants, and corporate / administrative reporting),, proactively publishing more information and data online, and keeping up to date with the latest technological developments.

Relevance: This commitment will advance the OGP values of access to information and technology and innovation by: • promoting a consistent approach to information governance across Australian Government entities; • increasing transparency of government decision-making and policy development; • enabling information and data reuse for economic and social benefits; • protecting the rights and entitlements of Australians to access government information; • increasing the accessibility, usability and discoverability of public data; and • improving the quality of data.   

Commitment 4.1: Confidence in the electoral system and political parties

Objective and description: To enhance integrity and confidence in Australia’s electoral system. We will do this by working with the Parliament and the public to investigate the conduct of the 2016 election, use of technology in elections and the framework of donations to political parties and other political entities.

Status Quo: The Government has asked Parliament’s Joint Standing Committee on Electoral Matters (JCSEM) to investigate a range of matters relating to the conduct of the 2016 federal election, with particular attention to: • the potential application of new technology to casting, scrutinising and counting votes, and whether current authorisations requirements could be applied to all forms of communication; and • donations to political parties and other political entities, including the extent of donations being received from foreign sources and the options available to Parliament to regulate these types of donations. JSCEM will also be asked to look at the current donations disclosure regime. A range of matters and areas for potential improvement were raised by civil society regarding this commitment during the public consultation period, particularly in regards to political donations. The Department of the Prime Minister and Cabinet has transmitted these civil society comments to the JSCEM for consideration as part of its inquiry.

Ambition: To ensure that public confidence in Australia’s electoral system continues to be strong.

Relevance: This commitment will advance the OGP values of accountability, transparency and access to information by: • reducing the risk of undemocratic behaviour and conduct, which leads to the perception or reality of corrupt behaviour by politicians and political parties; and • increasing public confidence in Australian democracy.

Commitment 4.2: National Integrity Framework

Objective and description: Australia will strengthen its ability to prevent, detect and respond to corruption in the public sector. We will do this in collaboration with the corporate sector, non-government organisations, academia and the public, including by holding the first Government Business Roundtable on Anti-Corruption in 2017. We will review the jurisdiction and capabilities of the Australian Commission for Law Enforcement Integrity (ACLEI) and the Australian Federal Police (AFP)-led Fraud and Anti-Corruption Centre (FACC) with the development of each National Action Plan to ensure they can focus on protecting Commonwealth agencies from risks of corruption.

Status Quo: The Australian Government takes tackling corruption seriously. We have strong laws and a robust, multi agency approach to combating corruption, under which a range of agencies play a role in preventing, detecting and responding to corruption (an approach the Government believes is preferable to creating an entirely new anti-corruption agency). Key agencies responsible for responding to public sector corruption include: • ACLEI, which is responsible for preventing, detecting and investigating corruption within the high-risk agencies within its jurisdiction. • The AFP-hosted FACC, which brings together a range of Commonwealth agencies to respond to serious fraud and corruption matters, including across Commonwealth services, programmes and employees. The Government provided an additional $15 million to the FACC in April 2016. In 2012, Australia was found fully compliant following a review of our implementation of the United Nations Convention against Corruption (UNCAC). Our next review under UNCAC is scheduled to occur in 2017-18. ACLEI’s jurisdiction was reviewed earlier this year by the Joint Committee on the ACLEI. The Committee recommended the Government extend ACLEI’s jurisdiction to include the entire Department of Agriculture and Water Resources, and examine the feasibility of including the Australian Taxation Office. The Government is considering the recommendations.

Ambition: To aim to improve Australia’s score on Transparency International’s Corruption Perceptions Index by strengthening the Australian Government’s ability to prevent, detect and respond to bribery and corruption, and better communicating our national integrity framework. To achieve this, we will consult closely with industry, non-government organisations, academia and the public to ensure that our laws, policies and frameworks for responding to corruption are effective, including through holding the first Government Business Roundtable on Anti-Corruption in 2017. We will strengthen the national integrity framework as it applies to the public sector. This will include reviewing the jurisdiction and capabilities of ACLEI and FACC every two years with the development of Australia’s National Action Plans under OGP, and extending these on an as needs basis. We will also improve whistle-blower protections (see commitment 1.1).

Relevance: This commitment will advance the OGP values of public accountability by: • improving the effectiveness of our legal, regulatory and institutional frameworks; and • protecting the integrity and transparency of the execution of public policy and management.   

Commitment 4.3: Open contracting

Objective and description: Australia will ensure transparency in government procurement and continue to support the Open Contracting Global Principles. As part of this, we will publicly review the Australian Government’s compliance with the Open Contracting Data Standard.

Status Quo: The Open Contracting Data Standard sets out key documents and data that should be published at each stage of government procurement and is seen as the international benchmark. The Standard enables disclosure of data and documents at all stages of the contracting process by defining a common data model. It was created to support organisations to increase contracting transparency, and allow deeper analysis of contracting data by a wide range of users. In line with the Commonwealth Procurement Rules, Australian Government entities are required to report all procurement contracts with a value of $10,000 or more on AusTender. However, there has not been a formal assessment of the extent to which current practice meets the requirements of the Open Contracting Data Standard. At the UK Anti-Corruption Summit in May 2016, the Australian Government stated its support of the Open Contracting Data Standard and noted the role that the Standard could play in encouraging machine-readable open data formats across all areas of government.

Ambition: To enhance transparency and accountability of public money in delivering public contracts.

Relevance: This commitment will advance the OGP values of access to information and public accountability by demonstrating transparency and accountability in relation to the procurement of goods and services on behalf of the Government.    

Commitment 5.1: Delivery of Australia’s Open Government National Action Plan

Objective and description: Australia will ensure that our Open Government National Action Plan is a platform for ongoing dialogue, collaboration and open government reform. We will do this by establishing a permanent dialogue mechanism with civil society, which includes a multi stakeholder forum and transparent reporting and accountability mechanisms. The multi-stakeholder forum will at a minimum track the implementation of commitments, ensure commitments continue to be relevant and ambitious, inform the drafting of future National Action Plans and raise awareness about open government in the broader community.

Status Quo: OGP countries are required to establish a multi-stakeholder forum to consult with the public and organisations outside of government on the implementation of the commitments included in their National Action Plan. Detailed guidance on establishing a multi-stakeholder forum is outlined in the OGP’s handbook. OGP countries have taken different approaches to establishing their multi-stakeholder forum. Some models adopted in other countries include: • Civil society network: Coalition of non-government organisations and individuals. • Single forum: Convenes government, the public and organisations outside of government in one formally established, central committee for co-ordination. • Hub-and-spoke: Network of smaller forums (broken down by sector, thematic area or commitments etc.), which may be coordinated by a central committee. The Government will work in partnership with civil society to determine the structure, role, governance and membership of the OGP multi stakeholder forum. It will also include reporting and accountability mechanisms, and procedures around decision-making. The Interim Working Group will continue as an oversight body for the implementation of this National Action Plan until the permanent multi-stakeholder forum is established. Membership of the forum will need to be broad given the diverse interests in open government. Stakeholders have noted through the public consultation that the existing Interim Working Group does not have representation from local government, the disability sector, privacy sector, Indigenous community, and industry/business groups. The forum will also need to facilitate broader engagement with the general public. It is also important that Australia’s commitments remain relevant and ambitious throughout the National Action Plan cycle. This will be achieved through ongoing review of milestones, with updates made (as necessary) in partnership with civil society. The Government will also work with the public to identify any additional commitments that could be included in the National Action Plan over the two year cycle.

Ambition: To identify, develop and implement ambitious open government commitments through ongoing partnership with civil society. This will include transparent reporting on progress of implementing commitments in this National Action Plan.

Relevance: This commitment will advance the OGP values of public participation and accountability by: • ensuring commitments remain relevant and ambitious throughout the National Action Plan cycle; • keeping government accountable for the implementation of National Action Plan commitments; • raising awareness about the Open Government Partnership and open government matters in Australia and the region; and • ensuring participation by a broad and diverse range of organisations and the public in the development of National Action Plan commitments.  

Commitment 5.2: Enhance public participation in government decision making

Objective and description: Australia will work towards improving public participation and engagement to enhance policy and service delivery outcomes for Australians. We will do this by establishing a new Australian Government framework for public participation and engagement.

Status Quo: Government is comprised of a diverse range of organisations, with approaches to participation varying considerably across different departments and agencies. High barriers to participation and piecemeal or unpredictable approaches to consultation can lead to an inefficient and dissatisfying experience. The current mechanisms for consultation often do not fully meet the Government’s practical requirements for policy and program development. In addition, current mechanisms can be ineffective in enabling ‘co-design’. Numerous reviews have highlighted scope for improvement in the way the Australian Public Service engages with the public when developing policies and programs. For example, Peter Shergold’s Learning from Failure recommended that “the APS should promote new forms of civil participation, including digital and deliberative democracy techniques, in order to enhance consumer-directed care, improve customer service, encourage greater public engagement and inform the public economy”. There is a need to identify and disseminate information on good practices and help peer exchange between government agencies and across different levels of government. Digital technologies also open up new opportunities for engagement and there are a range of innovative techniques that could be further explored at the Commonwealth level (e.g. policy hacks, online challenge platforms and citizen juries). In addition, there has been a lack of investment in social media and on-line tools relevant to public participation in government decision-making. The Public Governance, Performance and Accountability Act 2013 also requires Commonwealth entities to work cooperatively with others to achieve common objectives, where practicable.

Ambition: To design and adopt a whole-of-government framework that embeds meaningful, open, public and multi-stakeholder participation into the business of policy development and service delivery.

Relevance: This commitment will advance the OGP values of transparency, accountability and public participation by: • facilitating informed public participation; • improving policy development and service delivery; • enhancing transparency around government decision making; • encouraging an ongoing sharing of information and views across interest groups that builds consensus on broad policy directions; and • creating more engaged private and community sectors, and public.

Rights

The Australian Human Rights Commission Social Justice and Native Title Report 2016 features the following recommendations

R1: The Australian Government follow up the initial meetings with Indigenous leadership with regular consultations which materially inform policy and legislation impacting Aboriginal and Torres Strait Islander peoples.

R2: The Australian Government pursue the key priorities for change and recommendations outlined in the Redfern Statement, utilising the Council of Australian Governments and other processes to engage states and territories.

R3: The Australian Government establish and promote a monitoring and reporting framework to measure government progress in relation to Indigenous child welfare.

R4: The Australian Government, as a matter of urgency, support the development of justice targets, Justice Reinvestment initiatives and other evidence based state and territory legislative, administrative and service delivery initiatives that will contribute to substantial reductions in Indigenous incarceration rates.

R5: The Australian Government prioritise early intervention and prevention initiatives that provide comprehensive support and protection from violence to vulnerable Indigenous populations including women, children and the elderly.

R6: The Australian Government ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).

R7: The Australian Government follow through on the Implementation Plan for the National Aboriginal and Torres Strait Islander Health Plan 2013-2023 by: • providing new, quarantined funding for each of the activities outlined in that plan; and • continuing to work with the National Health Leadership Forum to oversee the progress of the plan.

R8: The Australian Government work with the Western Australian Government to ensure that the principles of free, prior and informed consent underpin the consultation with Aboriginal peoples regarding any proposed land tenure changes as a part of its Regional Services Reform policy.

R9: The Australian Government support the outcomes of the national consultations conducted by the Referendum Council.

R10: The Australian Government include the United Nations on the Declaration on the Rights of Indigenous Peoples (UNDRIP) in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and review existing legislation, policies and programmes for conformity with the UNDRIP.

R11: The Australian Government encourage state and territory governments to consult with Indigenous peoples about the need to establish or re-establish stolen wages reparations schemes.

R12: The Australian Government should make the Cashless Debit Card and the Community Development Program in remote communities’ voluntary, opt-in schemes (See Social Justice Native Title Report 2015, Recommendation 5).

R13: The Australian Government conduct independent evaluations of the Cashless Debit Card Trials and Community Development Program which involve participation and feedback from Aboriginal and Torres Strait Islander peoples directly affected and make these evaluations publically available.

R14: The Australian Government work with the states, territories and relevant stakeholders including the National Native Title Tribunal, to ensure the integration of key information about the Indigenous Estate on state and territory land title information systems.

R15: The Australian Government support Indigenous land holders to more comprehensively map the extent of their Indigenous Estate.

R16: The Australian Government support the Indigenous Strategy Group’s endorsed model(s) for long-term leasing.

R17: The Australian Government support the review of state and territory land use planning regimes in consultation with Indigenous organisations to ensure the Traditional Owners of the Indigenous Estate can exercise the right to free, prior and informed consent regarding land use planning decisions.

R18: The Australian Government: • recognise the key roles that native title Prescribed Bodies Corporate (PBCs), Native Title Representative Bodies and Service Providers (NTRB/SPs), the National Native Title Council and locally based, Indigenous-led specialist cultural and economic development organisations play in driving and supporting economic development on the Indigenous Estate; and • ensure these Indigenous-led organisations are properly funded and supported to carry out this important work, in addition to any statutory duties they may have.

R19: The Australian Government support locally based research and scoping initiatives to identify Indigenous-led economic development opportunities suited to the unique land holdings and strengths of Traditional Owner groups, including opportunities to develop the cultural economy, partner with local operations and ‘tap in’ to industry initiatives in the broader region.

R20: The Australian Government fund effective, applied training in business and other skills to build the capacity of Aboriginal and Torres Strait Islander directors and managers.

R21: The Australian Government support the analysis of risks for both Indigenous land holders and financial institutions with the objective of developing a new risk framework to underpin decision making, investment and business practices regarding the Indigenous Estate in partnership with Indigenous people and financial institutions.

R22: The Australian Government support legislative and policy measures to allow Prescribed Bodies Corporate (PBCs) to freely choose the best incorporation method for their purposes and support the regulators to assist PBCs in governance and incorporation matters.

R23: The Australian Government continue to support and resource locally designed employment programs including ranger and other culturally based land management programs beyond the current 2020 commitment.

R24: The Australian Government support the development of tailored governance arrangements and other tools to support effective benefit sharing and wealth management strategies.

R25: The Australian Government work with the states and territories to avoid limiting recognition of native title rights to take resources in consent determinations.

R26: The Australian Government prioritise funding Native Title Representative Bodies and Native Title Service Providers (NTRB/SPs) to pursue native title compensation claims on behalf of their clients through litigation or agreement making.

R27: The Australian Government continue to support and resource the Australian Human Rights Commission to facilitate the Indigenous Property Rights Project with Aboriginal and Torres Strait Islander peoples, government and other stakeholders, in order for the agenda developed by the Indigenous Strategy Group to be further advanced and achieved.

R28: The Australian Government, in cooperation with representative bodies, use the UNDRIP to develop subject specific indicators and work with the Australian Human Rights Commission to monitor the implementation of UPR recommendations relating to Aboriginal and Torres Strait Islander people.

CloudBanks

'Use by Banks of Cloud Computing: An Empirical Study' (Queen Mary School of Law Legal Studies Research Paper No. 245/2016) by W Kuan Hon and Christopher Millard explores

the extent to which public cloud computing is in fact being used in practice by banks operating in the EU, including global banks. It is based primarily on anonymised interviews with banks, cloud providers, advisers, and financial services regulators. This paper describes how banks are using cloud computing and their key drivers (such as time to market), as well as real and perceived barriers (such as misconceptions about cloud, and financial services regulation), including cultural and technical/commercial as well as legal/regulatory aspects. It summarises how banks and regulators have approached the cloud, as well as how cloud providers have approached the banking sector. 

Specific consideration is given to barriers arising from banking regulatory rules on outsourcing, critical or material, and the contentious issue of contractual audit rights for regulators. The paper also analyses legal and practical issues such as risk assessments, security, business continuity including exit plans, concentration risk and bank resolution, continuing regulatory oversight, banking secrecy laws, barriers under data protection law including personal data export restrictions, problems arising from layered service models where SaaS services are built on another provider’s IaaS/PaaS service, and commonly-negotiated contractual provisions regarding termination, service changes and liability. 

The paper concludes that, while some barriers are internal and some external, cloud is still misunderstood, and further educational efforts are needed to ensure regulatory approaches and guidance are sufficiently cloud-aware to strike the appropriate balance between risk management and efficiency/innovation across the European Economic Area.

Passwords and Warrantless Access?

The Queensland Police Minister Mark Ryan, in introducing the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2016 (Qld), states that the Bill will "provide a more cohesive and holistic response to the management of reportable offenders in the community".

The Bill amalgamates the Child Protection (Offender Reporting) Act 2004 (Qld) and the Child Protection (Offender Prohibition Order) Act 2008 (Qld) and amends the Police Powers and Responsibilities Act 2000 (Qld).

“The new legislation will give police enhanced powers to intervene in situations before sexual or particular other serious offences have been committed against a child and are aimed at disrupting and preventing recidivist offending,” Minister Ryan said.

“Police will be able to require a reportable offender to provide access information for electronic or other devices, where there is a reasonable suspicion that an offence has occurred.

“A person who fails to comply with this requirement can face up to five years’ imprisonment.”

Minister Ryan said under the new legislation, police will also have the power to inspect devices of some reportable offenders who pose the greatest risk to the lives and safety of children in our community.

“The Palaszczuk Government is determined to see anyone impacting on the safety of children right across Queensland not only charged and prosecuted to the full extent of the law but that strict measures are in place to put a stop to repeat offending,” he said.

“The new legislation will also provide greater protection for child witnesses during court proceedings, by prohibiting self-represented respondents or reportable offenders from being able to cross examine children who are witnesses.

“This will reduce further trauma to those victims of sexual or particular other serious offences.

“The enhanced powers for police mean they are able to intervene in situations prior to an offence occurring and to act quickly when there is suspicion an offence has been committed.”

Minister Ryan said the Palaszczuk Government has been working hard to streamline information sharing provisions between agencies which is vital to the ongoing safety of children in Queensland.

Commissioner Ian Stewart said any initiatives that assisted officers on the front line would be welcomed. “Our priority is keeping Queenslanders of all ages safe, but it is particularly important that we focus on the most vulnerable in our community, our children,” Commissioner Stewart said.

It wouldn't be a traditional Queensland media release, after all, without the Police Commissioner endorsing action by the Government.

Section 51B of the Bill - Access information for storage devices - provides

(1) This section applies if an authorised police officer suspects, on reasonable grounds that, a reportable offender has committed an indicatble offence under this Act.

(2) the authorised police officer may require the reportable offender to—

(a) give a police officer access to a storage device— (i) that is in the offender’s possession; or (ii) to which the offender has access; or

(b) give a police officer access information, and any other information or help, necessary for the officer to gain access to information stored on the device; or

(c) allow a police officer to— (i) use the access information to gain access to the information stored on the device; or (ii) examine the information stored on the device, including by using a software program on the device, to find out whether the information may be relevant evidence; or (iii) make a copy of information stored on the device that may be relevant evidence, including by using another storage device; or (iv) convert information stored on the device that may be relevant evidence into documentary form, or another form, that enables the information to be understood by a person.

(3) The reportable offender must comply with the requirement, unless the reportable offender has a reasonable excuse. Maximum penalty—300 penalty units or 5 years imprisonment.

(4) An offence against subsection (3) is a crime.

(5) It is not a reasonable excuse to fail to comply with the requirement that complying might tend to incriminate the reportable offender or expose the offender to a penalty.

(6) The Police Powers and Responsibilities Act 2000, sections 161 to 163 apply as if a reference in those sections to a police officer exercising powers under section 160 of that Act were a reference to the authorised police officer exercising a power under subsection (2) of this section.

(7) The reportable offender does not commit an offence against subsection (3) unless a magistrate makes a post-search approval order under the Police Powers and Responsibilities Act 2000, section 162 in relation to the exercise of a power under subsection (2).

(8) The police officer must inform the reportable offender, in a way that is reasonable in the circumstances, that the offender must comply with the requirement even though complying might tend to incriminate the offender or expose the offender to a penalty.

(9) If a court convicts a reportable offender of an offence against subsection (3), the court may, as well as imposing a penalt y for the offence, order the offender to comply with the requirement.

(10) In this section—

access information means information that is necessary for a person to access and read information that— (a) is stored electronically on a storage device; or (b) may be accessed through a storage device.

authorised police officer means a police officer authorised in writing by the police commissioner to exercise a power under this Act.

relevant evidence means evidence of the commission of— (a) a reportable offence; or (b) an offence against this Act.

storage device means a device— (a) on which information may be stored electronically, including, for example, a smart phone; or (b) through which information may be accessed, including, for example, from the cloud.

stored, in relation to information, means the information is stored on, or accessible through, a storage device.

The Explanatory Memo for the Bill states

Provide police with the power to require a person to provide access information for seized or detained computers or electronic equipment; and make the penalty for failure to comply with a direction to provide access information equivalent to the penalty for failure to comply with an OPO, or treat refusal as failure to comply with an OPO – new section 51B CPORA (Recommendation 13 – CCC report).

Section 51B is a new provision which requires a reportable offender to provide access information to a storage device or information which can be accessed through a storage device in circumstances where police have a responsible suspicion that an offence has been committed under the amalgamated legislation. The requirement to provide access information under section 51B excludes the application of the privilege against self - incrimination on the grounds that giving the access information might tend to incriminate the person. Section 51B allows the answer given as a con sequence of the requirement to be admissible as evidence, as well as any evidence obtained as a result of compliance with the requirement to provide access information.

Section 51B includes an offence provision where a reportable offender fails to comply with the requirement to provide access information will be liable to a maximum penalty of 300 penalty units or five years imprisonment. This is consistent with other offences under the CPORA and the proposed penalty increases for offences under the CPOPOA.

Excluding the application of the privilege against self-incrimination is similar to section 465AA(6) of the Crimes Act 1958 (Vic) and section 197 of the Crime and Corruption Act 2001 and is consistent with the findings of the Organised Crime Commission of Inquiry, which advocates the Victorian legislation as a good template for change.

The new access requirement is supported by safeguards which, in so far as possible, protect the rights of reportable offenders. In this regard, the requirement to provide access information will be limited to those police officers who are responsible for the management of reportable offenders in the community or have been authorised by the police commissioner to exercise those powers.

A police officer who requires access information from a person, will be required to make a post approval application to a magistrate. Furthermore, the details of the search will be recorded in the register of enforcement Acts under Chapter 21, Part 2, Division 3 of the PPRA. A reportable offender will not commit an offence for failing to provide access information in circumstances where a post approval order is not granted by a Magistrate.

The Memo also notes

Power to inspect – section 21 B PPRA

The Bill introduces section 21B of the PPRA to allow a police officer to inspect any device which is capable of storing or accessing information in the possession of a reportable offender who:

• has been released from government detention or sentenced to a supervision order in the preceding three months; or 

• has been convicted of a prescribed internet offence (up to a maximum of 4 inspections in a twelve month period ); or

• has been assessed as posing an increased risk of re-offending.

This cohort of offenders represent the greatest risk of sexually re -offending against children. QCS has provided data showing that approximately 40% of reportable offenders released from detention, re-offended within the first three months of their release. Furthermore, information held on the National Child Offender System indicates that over 30% of reportable offenders in 2015/16 were convicted of internet based offences against children. Internet based offences include, using the internet to procure a child under 16 years, using a carriage service for sexual activity with a person under 16, possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service, etc. A number of these offenders were also convicted of contact offences simultaneous to the internet offences. Offenders who have been assessed as posing an increased risk of offending are assessed through the use of an empirically validated risk assessment tool. Empirically validated tools are used by all policing and corrections jurisdictions to determine the level of risk an offender has a particular time, based on changes in circumstances, such as job loss, death of a family member, homelessness, social isolation and/or the uptake of precursor behaviours such as alcohol or drugs.

Computers have opened a new sphere of high-tech crimes where information communication technology equipment and or data are the object for the offending or a tool for the commission of an offence. The Royal Commission into Institutional Responses to Child Sexual Abuse has conservatively estimated the cost of child abuse and child trauma on the Australian community at $6.8 billion per annum. Prevention, disruption and early intervention are key strategies to reduce the social costs to victims and offenders. The purpose of inspecting devices is to identify online activity which has or may lead to offending behaviours such as accessing child related websites, searching for and viewing images of children and researching or accessing groups who endorse child exploitation including child exploitation material. The provision aims at ensuring that a reportable offender is not at risk of, or committing, further reportable offences against children. Inspection of a device involves attaching a commercially available software program to the device. The software scans the device and produces a report advising police of websites and social media sites accessed, browser searches undertaken, any instant messaging services used, chat rooms accessed, an account of image files on the computer, and identifies any software or hardware linked to the device.

The software used by the QPS also has the capacity to identify the presence of child exploitation material. This functionality cannot be removed from the software and it is not intended to limit any police powers where something on the device may be evidence of an offence. In this regard, any offences identified as a consequence of the inspection may result in enforcement action. Conversely, where information on the device indicates an offender is at risk of committing a reportable offence through the presence of precursor activities, for example accessing child specific websites, police will refer the offender to an appropriate support service to address the behaviours which may lead to offending.

The QPS employs a case management approach to offender management and monitoring. Each officer who is responsible for the management of reportable offenders in the community is a highly trained detective. These detectives are skilled at building rapport with reportable offenders which allows them to gauge their risk level at any given time. This is an important strategy which supports a preventative approach as opposed to an enforcement approach. The new inspection power includes significant protective mechanisms to ensure that the rights of reportable offenders are not unduly abrogated. In this regard, an inspection for internet based offenders is limited to four times in a twelve month period. Any further inspection would require approval from a magistrate and must be based on increased risk. All inspections based on increased risk are required to be approved by a magistrate.

An inspection order will be in place, rather than a search warrant, for the purpose of authorising an inspection of a device for the purposes of the offender reporting legislation. Unlike a traditional search warrant, the inspection order will only allow police to inspect devices which can access the internet or access information through the internet or store information and police will not be required to particularise the information or data subject to the order.

Each inspection will be required to be entered on the register of enforcement acts and a report will be tabled in Parliament each year detailing the number of inspections undertaken and any action taken by police as a consequence of those inspections. Another safeguard is the capacity for a reportable offender who is of the opinion that the repeated use of the inspection process constitutes an abuse of power, are able to make a formal complaint to the CCC or to the Ethical Standards Command of the QPS. The police commissioner has made it clear that any abuse of any power by a police officer will not be tolerated.

The new provision aligns with narrative supporting recommendation 13 of the CCC report and supports contemporary policing strategies to prevent and disrupt crime rather than simply respond after a crime has been committed. In particular, the CCC concluded that while breaches which occur in public places can be readily dealt with by police using their existing powers to search, detain and arrest, it is possible and very likely that offenders will engage in prohibited conduct inside their homes and the existing police powers to monitor compliance inside the home are limited

Financial Sector Ombudsmen

The Interim Report of the national Review of the financial system external dispute resolution and complaints framework features the following comments, accompanied by the Government resiling from past statements about a tribunal.

One cannot, it seems, have too many industry ombudsmen equipped with lettuce leaves.

A single industry ombudsman scheme for financial, credit and investment disputes (other than superannuation disputes)

The Panel recommends that there be a single industry ombudsman scheme to deal with all financial, credit and investment disputes (apart from superannuation disputes) to replace FOS and CIO .

The Panel considers that a shift to a single industry ombudsman scheme for these disputes would incorporate all the strengths of the existing industry ombudsman model — such as the focus on providing low cost, fair and accessible dispute resolution, the ability to innovate and adapt to changes in the regulatory and broader socio-economic environment, and the focus on improving industry behaviour — while addressing the problems that arise where the framework consists of multiple schemes with overlapping jurisdictions.

An assessment of this draft recommendation against the Review principles is presented below.

New industry ombudsman scheme for financial, credit and investment disputes

Efficiency ↑ economies of scale expected, as w ell as the capacity to reallocate resources as priority areas shift; opportunity to enhance coverage across the framework; and review scheme’s powers and remedies. Removes jurisdictional overlap .

Equity ↑ equity as creating a new scheme provides an opportunity to strengthen accountability and improve fairness for users .

Complexity ↓ consumer confusion and complexity .

Transparency ↑ transparency is possible as a shift to a single scheme removes competition between financial firms on price, and so removes any incentives by the scheme not to be financially transparent.

Accountability ↑ accountability as creating a new scheme provides an opportunity to enhance accountability mechanisms and regulatory oversight

Comparability of outcomes ↑ comparability of outcomes due to greater consistency in processes and procedures .

Regulatory costs ↓ costs for ASIC and industry: duplicative costs would reduce with the move to a single scheme.

In relation to key features such as the scheme’s jurisdiction, governance arrangements and monetary limits and compensation caps, the Panel considers that:

• the jurisdiction of the new scheme should be at least as broad as FOS’s existing jurisdiction , which is the broader of the two existing schemes ; 

• governance arrangements should recognise the importance of ensuring that the scheme is, and is perceived to be, independent of its members, and is sufficiently resourced and has appropriate processes to render high - quality and timely decisions; and 

• monetary limits and compensation caps should be higher than the current monetary limits and compensation caps of FOS and CIO.

A new industry ombudsman scheme for superannuation disputes

The Panel considers that the existing problems with SCT cannot be addressed within the existing tribunal structure, even with substantial reforms to funding, governance, appointment processes or other aspects of the legislative regime, as the rigidity of the statutory model would continue to hamper flexibility and innovation, making it difficult for SCT to respond to unanticipated future challenges. Recognising that the core purpose of the Review is to make recommendations to ensure that the EDR system can deliver effective outcomes in a rapidly changing and dynamic financial system, the Panel recommends that SCT be transitioned to a new industry ombudsman scheme for superannuation disputes.

In transition ing to a superannuation industry ombudsman scheme , the Panel intends to retain the existing strengths of SCT, such as:

• unlimited monetary jurisdiction; and 

• a broad jurisdiction to review decisions of trustees of superannuation funds .

However, the new structure would also incorporate the strengths of industry ombudsman schemes such as:

•   decision making centred on providing ‘fairness in all the circumstances’; 

• flexibility to innovate; 

• a flexible and responsive funding model ; 

• a board , with an independent chair and equal number of directors with industry and consumer backgrounds , to oversee the scheme ; 

• the a bility to make timely and appropriate staffing decisions; 

• systemic issues work to improve industry practice; 

• regular independent reviews of the scheme ; and 

• strong stakeholder engagement to increase accessibility .

The following table assesses the draft recommendation for a new superannuation industry ombudsman scheme against the Review principles.

New industry ombudsman scheme for superannuation disputes

Efficiency ↑ efficiency and more timely decision making due to more flexible and responsive funding, enhanced governance, faster and more flexible recruitment , flexibility to develop new procedures and tailor processes to disputes and respond to changes in the external environment .

Equity ↑ equity, with reduced delays, greater flexibility to define ‘fairness’ and to provide for a range of remedies, including for non - financial loss.

Complexity ↓ complexity, with a focus on developing informal dispute resolution processes and an easy - to - navigate system.

Transparency ↑ transparency of funding and operations, with a focus on stakeholder engagement .

Accountability ↑ accountability, with ASIC oversight and periodic independent reviews .

Comparability of outcomes ↑ comparability of outcomes ; eg. as independent reviews provide additional scrutiny of procedures and processes.

Regulatory costs ↑ potential direct regulatory costs (increased industry funding, regulator costs from overseeing scheme , offset by some decreased costs in m aintaining legislation, making appointments). A user pays (industry funded) model may reduce cost as there would be an incentive for funds to reduce complaints to EDR.

Future directions: a single industry ombudsman scheme for all disputes in the financial system

The Panel considered the merits of moving immediately to a single dispute resolution body to handle all dispute s in the financial system , including superannuation disputes . On balance, the Panel’s view is that it is preferable to initially introduce an ombudsman model in superannuation through a separate scheme focused exclusively on superannuation disputes. This approach is more likely to facilitate strong stakeholder engagement in the development and implementation of the scheme, which has been a critical foundation for industry ombudsman schemes in other parts of the financial system and in other industries .

The new industry ombudsman scheme for superannuation disputes should be encouraged to work closely with the new scheme for financial, credit and investment disputes, to share knowledge and resources (such as back - office functions) and realise efficiencies where possible .

Once the two new schemes are fully operational and have garnered consumer and industry support, consideration should be given to further integrating the schemes to create a single ombudsman scheme for all financial system disputes. The Panel notes that integration of this kind would be consistent with the evolution and adaptation that has been a hallmark of t he existing EDR framework, with the current ombudsman schemes the products of amalgamations and consolidations.

The Panel is confident that its draft recommendations — which should be considered as an integrated package of reforms — will address shortcomings in the current EDR framework and ensure that the framework is well - placed to address current problems and withstand future challenges.

Other matters: whether an additional statutory dispute resolution body is needed

In its Issues Paper, the Panel sought stakeholder views on the establishment of an additional statutory dispute resolution body in the financial system. The majority of submissions did not support this proposal. For the reasons outlined in Chapter 6, the Panel is of the view that an additional statutory dispute resolution body is not required.

Report of the House of Representatives Standing Committee on Economics — Review of the Four Major Banks

On 24 November 2016 , the House of Representatives Standing Committee on Economics released its Review of the Four Major Banks: First Report . One the Committee’s recommendations is:

... that the Government amend or introduce legislation, if required, to establish a Banking and Financial Sector Tribunal by 1 July 2017. T his Tribunal should replace the Financial Ombudsman Service, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal. The Government should also, if necessary, amend relevant legislation and the planned industry funding model for the Australian Securities and Investments Commission, to ensure that the costs of operating the Tribunal are borne by the financial sector.

The Panel observes that many of the Committee’s recommended features for this body are consistent with the Panel’s draft findings and recommendations including:

• free access for consumers; 

• decisions to be binding on members of the body; 

• the body to be funded directly by the financial services industry; and 

• the body to have a board that is comprised of equal numbers of consumer and industry representatives.

The Panel also observes that the Committee has recommended the Government establish the body by legislation if required indicating it is not necessarily the case the body would be established by legislation or that it would operate within a legislative framework. This would only occur if it is required.

A difference between the recommendation of the Committee and the draft recommendations of the Panel is that the Committee recommends the establishment of a Tribunal to replace FOS, CIO and SCT. In this Interim Report, the Panel makes draft recommendations for the establishment of a single industry ombudsman scheme for financial, credit and investment disputes and an industry ombudsman scheme for superannuation disputes. In Chapters 2, 4 and 5 of this Interim Report the Panel identifies what it sees as the advantages that ombudsman schemes have when compared to tribunals, such as SCT, when dealing with disputes relating to financial products and services.

The recommendations of the Committee are a matter for the Government. However, the Panel will give further consideration to the Committee’s recommendations in its Final Report.

Increased accountability and transparency

Recognising the importance of ensuring that the new ombudsman scheme for financial, credit and investment disputes and the new ombudsman scheme for superannuation disputes are, and are perceived to be, independent of financial firms and consumers, and are sufficiently resourced to provide robust, timely and quality decision making, the Panel considers there is a case for enhancing some existing accountability mechanisms. Both new schemes, in order to fulfil their mandate of providing effective EDR, must meet the standards set by ASIC and be accountable to their users. At a minimum, the Panel recommends that ASIC’s regulatory guidance requires schemes to:

• be adequately funded (for example, in order to be able to respond to unforeseen spikes in dispute volumes); 

• have sufficient coverage (including fit - for - purpose monetary limits in the case of the new scheme for financial, credit and investment disputes); 

• be subject to more frequent, periodic independent reviews (the Panel is of the view that given the importance of independent reviews, they should occur more frequently than every five years, which is currently the case for FOS and CIO. The Panel notes that independent reviews of ombudsman - type schemes in the financial services sector in the United Kingdom and Singapore occur every three years — see Chapter 2 and Appendix 1 ) ; and 

• be responsive to findings of independent reviews, including by providing detailed updates on implementation of actions taken in response to an independent review and a detailed explanation when a recommendation of an independent review is not accepted by the scheme.

Additionally, the Panel recommends that each scheme establish an independent assessor whose role would be to investigate complaints by users (consumers, small business and financial firms) into the handling of a dispute by the schemes. The independent assessor’s role would not involve reviewing the findings or outcomes of the relevant decision (that is, they would not be an avenue of appeal). The assessor would make a recommendation in relation to the service handling of the dispute which, where the dispute was not handled satisfactorily, may include that the scheme make an apology or provide compensation to the affected user. The independent assessor would report directly to the Board.

The Panel also recommends bolstering ASIC’s capacity to oversee the new industry ombudsman schemes by providing ASIC with more specific powers to allow it to give directions to schemes, as appropriate, to comply with the EDR benchmarks.

Internal dispute resolution

Recognising that sound EDR is supported by sound IDR, the Panel also recommends that financial firms be required to undertake enhanced public reporting of their IDR activity and the outcomes consumers receive in relation to IDR complaints. ASIC should be provided with power to determine the content and format of IDR reporting. Additionally, the industry ombudsman schemes should be required to register and track the progress of disputes referred back to a financial firm’s IDR processes.

Enhanced small business access to redress

It is clear that there are strong and compelling reasons for further steps to be taken in relation to the resolution of disputes for small business. The Panel considers that coverage of the framework should be expanded by improving access to dispute resolution for small business, to increase efficiency and equity. This is best achieved by ensuring the monetary limits of the new scheme for financial, credit and investment disputes are higher than the monetary limits of the existing industry schemes (FOS and CIO).

Better handling of complex disputes through panels

Recognising the potential for increased complexity of disputes, particularly given the increased monetary jurisdiction of the new industry scheme for financial, credit and investment disputes (relative to the status quo), the Panel recommends that both new industry schemes consider the use of panels (which consist of an industry representative, consumer representative and a scheme ombudsman) as a means of enhancing the quality and robustness of decisions.

While recognising the costs associated with decision making by panels (including additional time to resolve the dispute), the Panel notes the benefits of utilising industry and consumer expertise and of getting ‘buy - in’ from consumer and industry stakeholders. Schemes should also ensure they are transparent to users about the circumstances where a panel will be used.

Compensation scheme of last resort

An efficient, resilient and fair financial system that facilitates economic growth and meets the financial needs of its users is dependent on the trust and confidence of those users.  However, it is clear that many Australians currently lack confidence in the financial system and this is due, at least in part, to the issue of uncompensated consumer losses.

Where consumers are denied compensation due to a financial firm’s lack of resources, it has a negative impact on both the individual consumer and the broader financial system. In circumstances where the market is currently unable to provide a solution to this problem, the Panel is of the view that there is considerable merit in introducing an industry - funded compensation scheme of last resort.

The Panel is aware that to help achieve broad consensus about the structure and operation of a compensation scheme of last resort, the Australian Bankers’ Association and FOS are working with key stakeholders to identify any issues that would impede implementation of such a scheme.  The Panel will consider the outcomes of this work in the context of its Final Report.

Implementation considerations

Noting these draft recommendations represent a significant shift from the current system, the Panel is calling for further submissions on the broad approach, the draft recommendations, and implementation and transitional issues. The Panel supports a staged process f or implementation, recognising that such an approach may better manage transitional issues. 1

The Panel's draft recommendations are -

Draft recommendation 1 A new industry ombudsman scheme for financial, credit and investment disputes

There should be a single industry ombudsman scheme for financial, credit and investment disputes (other than superannuation disputes) to replace FOS and CIO.

Draft recommendation 2 Consumer monetary limits and compensation caps

The new industry ombudsman scheme for financial, credit and investment disputes should provide consumers with monetary limits and compensation caps that are higher than the current arrangements, and that are subject to regular indexation.

Draft recommendation 3 Small business monetary limits and compensation caps

The new industry ombudsman scheme for financial, credit and investment disputes should provide small business with monetary limits and compensation caps that are higher than the current arrangements, and that are subject to regular indexation.

Draft recommendation 4 A new industry ombudsman scheme for superannuation disputes

SCT should transition into an industry ombudsman scheme for superannuation disputes.

Draft recommendation 5 A superannuation code of practice

The superannuation industry should develop a superannuation code of practice.

Draft recommendation 6 Ensuring schemes are accountable to their users

Both new schemes should be required to meet the standards developed and set by ASIC. At a minimum, ASIC’s regulatory guidance should require the schemes to:

• ensure they have sufficient funding and flexible processes to allow them to deal with unforeseen events in the system, such as an increase in complaints following a financial crisis or natural disaster;

• provide an appropriate level of financial transparency to ensure they remain accountable to users and the wider public; 

• be subject to more frequent, periodic independent reviews and provide detailed responses in relation to recommendations of independent reviews, including updates on the implementation of actions taken in response to the reviews and a detailed explanation when a recommendation of an independent review is not accepted by the scheme; and 

• establish an independent assessor to review the handling of complaints by the scheme but not to review the outcome of individual disputes.

In addition, ASIC’s regulatory guidance should require the new scheme for financial, credit and investment disputes to regularly review and update its monetary limits and compensation caps so that they remain relevant and fit - for - purpose over time.

Draft recommendation 7 Increased ASIC oversight of industry ombudsman schemes

ASIC’s oversight powers in relation to industry ombudsman schemes should be enhanced by providing ASIC with more specific powers to allow it to compel performance where the schemes do not comply with EDR benchmarks.

Draft recommendation 8 Use of panels

The new industry ombudsman schemes should consider the use of panels for resolving complex disputes. Users should be provided with enhanced information regarding under what circumstances the schemes will use a panel to resolve a dispute.

Draft recommendation 9 Internal dispute resolution

Financial firms should be required to publish information and report to ASIC on their IDR activity and the outcomes consumers receive in relation to IDR complaints. ASIC should have the power to determine the content and format of IDR reporting.

Draft recommendation 10 Schemes to monitor IDR

Schemes should register and track the progress of c omplaints referred back to IDR.

Draft recommendation 11 Debt management firms

Debt management firms should be required to be a member of an industry ombudsman scheme . One mechanism to ensure access to EDR is a requirement for debt management firms to be licensed.

The Interim Report observes that 

The Panel is of the view that there is considerable merit in introducing an industry - funded compensation scheme of last resort