Medications and Marketing

Quarantining the quack medicines? The interim report of the Review of Pharmacy Remuneration and Regulation features the following summary

This Interim Report presents the Panel’s key findings and a series of options – or possible reform paths – for stakeholders to consider.

In essence, this Interim Report continues the conversation flowing from the release of the Review of Pharmacy Remuneration and Regulation Discussion Paper in July 2016, which resulted in more than 500 submissions to the Review.

The options for reform presented throughout this report have consolidated issues raised within the submissions and other feedback as well as primary evidence gathered from work specifically commissioned by the Review.

The report and its options capture a broad range of thoughts and ideas surrounding reform but do not discuss specific issues of implementation. Although this review has not been concerned with the specifics of implementation, the Panel welcomes and encourages further submissions that provide additional insight into such matters where considered appropriate.

This Review is primarily consumer focused and, while the viability and sustainability of an effective community pharmacy network is a key consideration, the Panel has also sought to identify services and programs that are of benefit and the consumer ultimately values.

It is important that consumers can easily access information about the services offered by community pharmacies. The Panel presents options to improve consumers’ access to information. This is an important step toward improving services and the equity of medicine access.

Consumers self-select the pharmacy model that best suits their needs. This should continue to ensure a viable and vibrant pharmacy network. However, consumers also need, and expect, consistent minimum levels of service from all community pharmacies.

This includes community pharmacy providing consumers with professional advice on complementary medicines. To avoid potential harm, or the confusion between the efficacies of different types of medicines, pharmacists need to be easily accessible to give needed advice when consumers choose a complementary or pharmacy-only medicine.

The Panel considers that the implementation of technology and mechanisms to support the use of electronic prescriptions and electronic medical records is overdue. While recognising that governments and industry are working to implement technology enablers, the first step needs to be about timely recognition of an electronic script as a valid prescription record for legislative and Pharmaceutical Benefits Scheme (PBS) purposes.

The Panel has noted some good practices and initiatives across the broader health sector in this regard, including improved communication and synergies between hospital and community pharmacies. Nevertheless, there still remain significant opportunities to improve services and reduce medicine-related risks for patients moving between healthcare settings.

The Panel’s strategic vision is the continued development of an innovative, sustainable community pharmacy network that is adaptive to the inevitable changes occurring in health care.

Emphasis must therefore be on remuneration which rewards efficient pharmacy operations while enabling appropriate payment for providing all consumers with equitable access to PBS medicines, consistent with the National Medicines Policy. Remuneration based on the efficient costs of dispensing within a best-practice pharmacy is appropriate and ensures a fair and equitable use of government funds while safeguarding the variety of business models that exist today.

These efficient costs are tied to the delivery of core services by the pharmacist for the supply of PBS medicines and related services as needed by the consumer. In order to establish an appropriate level of remuneration for community pharmacy, government needs information about the costs of these core services. At present, these costs and their associated value are difficult to determine, as the accounting information required to inform decision-making at this level is not being made available to government. Increased transparency in the use of these public funds is therefore strongly supported by the Panel.

Few, if any, submissions to the Review approved of all aspects of the current location rules. The Review notes the 2014 National Commission of Audit and the Competition Policy Review (the Harper Review) in 2015, which recommended the removal of these rules. Options for the removal and/or replacement of the location rules are presented in this Interim Report.

In a federation like Australia, there will often be variation in rules across the country. However, the variations in relevant legislation between states and territories are causing undue administrative burden for pharmacists and confusion for some consumers, especially those travelling between jurisdictions. Improving regulatory arrangements will help to ensure nationally consistent services for all consumers, better align services with consumer access, and increase innovation in community pharmacy while reducing barriers to entry.

While advances in medicines are always welcomed, the escalating cost of their listing on the PBS could serve to compromise current supply arrangements. For example, the increasing prevalence of high-cost medicines listed on the PBS, and their associated terms of trade, has challenged the ability of many community pharmacies to supply these medicines. The Panel considers that the risks to pharmacies in supplying high-cost medicines may be better managed by placing an upper limit on wholesale payments made by community pharmacists.

The remuneration and regulation for the wholesale supply of PBS medicines can also be improved. The options presented by the Panel remove unnecessary regulation and focus medicine distribution on the suppliers, who have the strongest incentives to ensure that consumers can access their medicines. The options will improve the effectiveness and accountability for the public funds used to support wholesaling and establish clear base-level terms of trade for community pharmacy. The Panel notes that successive Community Pharmacy Agreements (CPA) have led to important improvements in the engagement of community pharmacy. But they have also limited improvement in some areas. The CPA remains an appropriate mechanism to discuss and agree on the delivery of PBS medicines through community pharmacy. However, all the parties responsible for the major components of that delivery need to be represented as signatories to the agreement.

This is currently not the case, and the Panel considers that future agreements should be extended to include broader sector and consumer health representation. The Panel notes the many bodies which have claimed to be representative of pharmacy and/or pharmacists across the country. These bodies have challenged the notion that community pharmacy models currently operating in Australia are all represented appropriately, in CPA negotiations to date, to ensure integration and coordination across the pharmacy profession.

National policy includes the integration and financing of community pharmacy as a primary health focus on patient outcomes delivered through safe and effective pharmaceutical care.

Across the broader health policy and systems management, there is a need for wider presence of community pharmacy input and, conversely, a wider representation of pharmacy and consumer leadership is required.

The Panel notes that community pharmacy in the longer term will necessarily be led across various private and professional bodies with various agendas, and the challenge for government will be to coordinate agreements with a number of representatives to ensure that public access and health priorities are managed effectively. The Panel also considers that the CPA is not the right mechanism to negotiate and agree on programs and services that are not directly related to the delivery of PBS medicines. Such services are more appropriately agreed separately between the government and the relevant key stakeholders and funded on their own merits and evidence base. For example, the Panel has noted that pharmacies provide many valuable programs and services that are either not funded or underfunded, and the Panel considers these merit separate negotiation and agreement outside the CPA.

Ensuring that Aboriginal and Torres Strait Islander people have timely and affordable access to PBS medicines and medication management support services remains a priority that underpins the desire to improve access and affordability in remote locations.

The Panel recognises the benefits of programs such as the Closing the Gap PBS Co-Payment Measure. However, such programs need to be properly integrated to ensure that the program benefits follow the individual, regardless of where their prescription is written or dispensed. The Panel also considers that the ability for an Aboriginal Health Service to employ pharmacists and operate a pharmacy should be trialled to see if it improves services and outcomes for Indigenous Australians.

This Interim Report further presents options for consideration in relation to:

• current complexities and administrative inefficiencies with the section 100 Highly Specialised Medicines program 

• fees paid by the government for the compounding of chemotherapy medicines which meet minimum safety and quality standards 

• use of mechanisms such as machine dispensing to improve access to medicines and related advice in remote communities.

The Panel re-emphasises that the options and alternatives presented in this Interim Report are not designed to address potential implementation issues. They are options for reform.The Panel notes that the Australian Government’s 2017–18 Budget contained a range of decisions that affect elements of this Review. These decisions impact upon a number of community pharmacy programs and the pharmacy location rules.

The Interim Report presents options to replace or modify the pharmacy location rules. However, given the Government’s recent commitment to continue the current location rules, the Panel considers that its options to replace the current location rules are no longer immediately relevant to this Review. While they are included in the Interim Report for the sake of transparency around the Panel’s consideration of the issue, they will not be presented in the Final Report.

However, the Panel will continue to consider the options presented to modify the location rules that have been put forward on the assumption that the current location rules will be retained.

The Panel therefore welcomes further discussion through the submission of new evidence and additional insights in relation to what community pharmacy should look like in the future. This will be important for informing the Panel’s recommendations to be presented in the Review’s final report.

Part 3.5 regarding Homeopathic Products states

There are unacceptable risks where community pharmacies are allowed to sell homeopathic products.

DISCUSSION

While most stakeholders supported the continued sale of complementary medicines in community pharmacy, the practice of homeopathy and sale of homeopathic products did not receive such support. In 2015 the National Health and Medical Research Council (NHMRC) conducted an assessment of the evidence of efficacy of homeopathy and concluded:

“Based on the assessment of the evidence of effectiveness of homeopathy, NHMRC concludes that there are no health conditions for which there is reliable evidence that homeopathy is effective. Homeopathy should not be used to treat health conditions that are chronic, serious, or could become serious. People who choose homeopathy may put their health at risk if they reject or delay treatments for which there is good evidence for safety and effectiveness.”

The general consensus as demonstrated by submissions to the Review and the Panel’s face-to-face consultations is that homeopathy and homeopathic products do not belong in community pharmacies. The majority of pharmacists and other stakeholders argued that these products lack any evidence base and have sufficient evidence of non-efficacy to preclude their ethical sale in community pharmacies.

This is supported by the public positions of professional pharmacy bodies – for example, the PSA, whose Position Statement on Complementary Medicine states: “PSA does not support the sale of homeopathy products in pharmacy.”

The only defence put to the Panel regarding homeopathy was that it was harmless and able to be used as a placebo in certain circumstances. The Panel does not believe that this argument is sufficient to justify the continued sale of these products in pharmacies that supply PBS medicines.

In particular, the Panel notes that the supply of homeopathic products through pharmacies is not benign but, rather, risks creating a perception of reliability and efficacy in the mind of the consumer based on the status of the pharmacy as a healthcare provider. This may encourage patients to choose a homeopathic product over a conventional medicine with robust evidence of efficacy, which creates a risk of harm to the patient’s health.

OPTION 3-4: SALE OF HOMEOPATHIC PRODUCTS

Homeopathy and homeopathic products should not be sold in PBS-approved pharmacies. This requirement should be referenced and enforced through relevant policies, standards and guidelines issued by professional pharmacy bodies.

In considering complementary products the interim report states

Consumers value access to complementary medicines in the community pharmacy setting, where they can receive advice on their selection and use that is backed by an appropriate level of evidence.

DISCUSSION

The Review’s consultation process has clearly demonstrated that consumers expect access to complementary medicines in their local pharmacy.

It is also clear that consumers value pharmacist advice to support their selection and use of complementary medicines. Research undertaken by Hall and Partners concluded:

“The inclusion of complementary medicines and treatments (primarily thought of as vitamin and mineral supplements) in pharmacies attracts majority support among Australian consumers, most of whom want to access these products in pharmacy. This result is unsurprising given the current Australian health climate that reflects a widespread belief in complementary medicines or treatments as a part of managing one’s health, based on the influence of doctors, health experts, spokespeople, media and word of mouth. Consumers rely on pharmacists to help them understand whether certain complementary medicines are safe to take with their pharmaceutical medicine.”

Community pharmacy owners expressed similar views in the submissions to the Review. They were overwhelmingly supportive of complementary medicines continuing to be sold in community pharmacy, as patients have the opportunity to seek advice from, or be referred to, a pharmacist.

This includes advice on the evidence base relating to the product, advice on whether the product is appropriate for that patient, advice on potential adverse reactions with other medications and referral to a general practitioner where appropriate.

There was also a strong focus on the importance of quality advice being available for consumers, as demonstrated by the following submission:

“Complementary medicines will continue to be sold whether or not they are ranged in pharmacy. However the pharmacy is a controlled environment where advice can be easily obtained.

While most complementary medicines are safe there are some that can have adverse consequences if taken with the wrong prescription medicines. The pharmacy is the right place for consumers to determine how to best use complementary medicines from trained healthcare professionals.”

Many pharmacy owners and pharmacists emphasised their support for the consumer’s right to choose when it comes to managing their health needs. This includes the use of complementary medicines alongside traditional pharmacy medicines.

A submission from Move Muscle, Bone and Joint Health explained that many consumers expect their pharmacist to play a supporting role in when obtaining complementary medicines:

“the use of complementary medicines in conjunction with pharmaceutical compounds is very common for muscle, bone and joint conditions. Further, many people using complementary medicines do not discuss this with their doctors. Sabanovic et al found that people with chronic pain often used a combination of prescribed, off the shelf and complementary medications to manage their pain.

Pharmacy has an opportunity to bring together patients’ experiences and preferences, to discuss possible interactions and to provide advice. As there are significant poly-pharmacy risks between prescribed, off the shelf and complementary medications, prohibiting businesses from providing the range of options is counterintuitive.”

In general, stakeholders put forward the view that pharmacists perform a valuable role in advising consumers on complementary medicines. However, there is some concern relating to the sale of products with a limited evidence base, or none at all, alongside prescription and other scheduled medicines.

The Hall and Partners’ consumer research noted:

“The presence of these products within the pharmacy environment does, to some extent, allow complementary medicines to borrow some of the clinical trust placed in the pharmacy. However, this research finds no evidence to support the view that their presence in turn negatively impacts clinical trust in the pharmacist. If pharmacies are to supply complementary medicines, this brings with it a consumer expectation these products have been selected for their health benefits and that staff will be able to provide related product advice – especially about possible interactions or side effects.”

However, Dieticians Association Australia contradicted these assertions, suggesting: “it is confusing for patients if non-evidence based therapies are sold alongside prescription medicines. It is reasonable to expect that pharmacists manage any conflicts of interest and provide evidence based advice to consumers, but it is difficult to see how this can be realised in a retail environment in which evidence based and non-evidence based products are collocated.”

The Panel agrees with the above comments and remains concerned that the sale of complementary medicines alongside other medicines may mislead consumers. It therefore concludes that complementary medicines should be held in a separate area within community pharmacies, where customers can easily access a pharmacist for appropriate advice.

THE THERAPEUTIC GOODS ADMINISTRATION APPROVAL PROCESS

The Panel notes that complementary medicines encompass a wide range of products generally considered useful for health maintenance and enhancement. This extends to a range of products with a history of use based on cultural and traditional values.

The Panel also noted that the current Therapeutic Goods Administration (TGA) pre-market approval process for the listing of complementary medicines on the Australian Register of Therapeutic Goods (ARTG) is based on assessment of a lower level of evidence than that for registered medicines.

Complementary medicines listed on the ARTG are subject to specific requirements relating to the level of therapeutic claim made for each product, the ingredients which it may contain and the facilities and standard to which the product is manufactured. The Panel also notes that no assessment of efficacy is made as part of the TGA listing process.

Although the sponsor (or manufacturer) of a complementary medicine is required to hold evidence of the efficacy of that product for its approved indication, this evidence is not assessed by the TGA prior to listing on the ARTG.

The Panel considers that limited consumer understanding of the TGA approval process for complementary medicines coupled with the availability of these products through community pharmacy can give rise to unsubstantiated expectations of the efficacy or medical benefits offered by these products.

The Panel notes that the recent Review of medicines and medical devices regulation (2015) made a range of recommendations relating to the regulation of complementary medicines. It was suggested that two further reviews be undertaken to potentially streamline the regulatory framework for low-risk products and increase consumer access to the products. Significantly, the TGA’s February 2017 public consultation paper, Reforms to the regulatory framework for complementary medicines: Assessment pathways, notes that:

“A critical issue in the use of listed complementary medicines is to ensure that they are suitable for self-selection by consumers and that the information provided with the medicine supports consumer health decisions.”

Clearly, community pharmacists can play a valuable role in advising consumers on the potential health benefits or dangers of using complementary medicines. The Panel remains concerned that consumers may be misled about the value of complementary medicines in the absence of appropriate evidence-based advice at the point of sale. In this context, the TGA’s actual role in the approval process for complementary medicines may be misunderstood by consumers, who may be likely to believe that that role is much broader than what occurs.

The Panel therefore considers that community pharmacies should provide consumers with information on any limitations noted by the TGA over the medical efficacy of these products. This could be achieved through the provision of appropriate signage near the sale of these products which clearly informs on the relevant TGA limitation.

OPTION 3-2: COMPLEMENTARY MEDICINES – SUPPLY FROM PHARMACIES

Community pharmacists are encouraged to: a. display complementary medicines for sale in a separate area where customers can easily access a pharmacist for appropriate advice on their selection and use b. provide appropriate information to consumers on the extent of, or limitations to, the Therapeutic Goods Administration (TGA) role in the approval of complementary medicines. This could be achieved through the provision of appropriate signage (in the area in which these products are sold) that clearly references any limitations on the medical efficacy of these products noted by the TGA.

Contempt

The New Zealand Law Commission has released the 212 page report of its review into the laws of contempt of court: Reforming the Law of Contempt of Court: A Modern Statute - Ko te Whakahou i te Ture mō Te Whawhati Tikanga ki te Kōti: He Ture Ao Hou.

The Commission states that

The law of contempt of court will be unknown to many people. Yet it is important law because it provides the ultimate sanction of imprisonment for those who seek to prevent the justice system from operating fairly, effectively and expeditiously. The law of contempt of court ensures:

• court hearings are not disrupted; 

• trials are not prejudiced by unfair publicity; 

• jurors decide cases only on lawfully admitted evidence; 

• judgments and court orders are enforced; and 

• the judiciary is protected as far as practicable from false and egregious attacks which undermine public confidence in its independence, integrity and impartiality.

All of these outcomes are essential in a constitutional democracy such as New Zealand. They are all part of the rule of law which New Zealanders expect will underpin the administration of justice and which will apply to everyone, including Parliament and the government of the day.

Without these outcomes New Zealand’s standing as a country with an enviable justice system, a judiciary of high standing and an absence of corruption would be at risk.

There are increasing signs, especially in this digital age, of people “thumbing their noses” at the rule of law, including examples of court hearings being disrupted, online publicity unfairly prejudicing trials, jurors googling information, people failing to comply with court orders, and false and egregious attacks on the judiciary going unanswered.

When it comes to the publication of information unfairly prejudicing trials and false attacks on the judiciary, it is important to recognise that such publications are not protected by the right to freedom of expression.

Freedom of expression is of course an important right in New Zealand affirmed by the New Zealand Bill of Rights Act 1990. But it is not an absolute right.

The New Zealand Supreme Court has held the right to a fair trial may be more important. Fair trials may be prejudiced by the publication of information about a defendant and by jurors discovering information online which is not part of the evidence at the trial.

Similarly, the publication of false attacks that undermine public confidence in the judiciary may be in contempt of court. The right to freedom of expression does not protect the publication of untrue factual allegations and opinions based on them

It accordingly recommends modernising the laws of contempt, commenting

Contempt laws protect the justice system, including a defendant's right to a fair trial. The law in this area has evolved in a piecemeal fashion throughout its long history, which has resulted in a lack of certainty. Contempt laws are increasingly antiquated and inappropriate in our modern society. They predate the digital-age and need to be updated to address these technological developments. 

The Commission accordingly recommends a new statute - the Administration of Justice (Reform of Contempt of Court) Act - to replace common law with new offences, new enforcement provisions and new processes.

Specific recommendations include -

• Clearer statutory rules governing the publishing of information on an arrested person’s previous convictions and concurrent charges 
• New statutory powers allowing the courts to make temporary suppression orders postponing publication of information that poses a real risk of prejudice to an arrested person’s fair trial. 
• A new statutory offence to replace the common law contempt of publishing information where there is a real risk that the publication could prejudice a fair trial. 
• A new standardised procedure for dealing with disruptive behaviour in the courts that interrupts proceedings and interferes with a court’s ability to determine the proceedings effectively and efficiently. 
•  A new offence to replace common law contempt where a member of a jury investigates or researches information which he or she knows is relevant to the case. 
• The antiquated contempt of scandalising the court should be abolished. 
•  A new offence of publishing untrue allegations or accusations against the judiciary when there is a real risk that the publication could undermine public confidence in the independence, integrity or impartiality of the judiciary or courts.

Hutt again goes phutt

My doctoral dissertation features a discussion of the legal status of sovereign citizens - recall Ulysses & Child Support Registrar [2007] FamCA 1395, [7], McKinnon v R [2005] NZCA 94, [6], Robert Mcjannett v Construction Forestry Mining and Energy Union of Workers [2012] WAIRComm 1111, [14] and Van den Hoorn v Ellis [2010] QDC 451, [2] - and of pseudo-states such as Atlantium, Camside and the Hutt River Principality or notables such as the Duke of Avram (who modestly proclaimed he was Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, Cardinal and Archbishop of the Royal See of the Continent of Australia).

I was accordingly amused but unsurprised to see the Western Australia Supreme Court judgment in Deputy Commission of Taxation v Casley [2017] WASC 161 last week.

 Le Miere J states

In CIV 3132 of 2016 the plaintiff, the Deputy Commissioner of Taxation, claims against the defendant, Leonard Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2013. Leonard Casley has entered a conditional appearance and applied for an order that the writ of summons be set aside 'for reasons of jurisdiction'. The Deputy Commissioner has applied for summary judgment.

In CIV 1603 of 2017 the Deputy Commissioner claims against Arthur Casley for debts due and payable for income tax, interest and penalties in respect of the income years ended 30 June 2006 to 30 June 2012. Arthur Casley has applied for an order that the writ of summons be set aside on the ground that the court does not have jurisdiction to hear the claims. The Deputy Commissioner has applied for summary judgment. ...

Each of the defendants has filed an affidavit and written submissions and made oral submissions to the effect that the court does not have jurisdiction over the defendant or to hear the matter because they are the sovereign of, or citizen of, the Hutt River Province which is an independent sovereign state. That argument has no legal merit or substance. Anyone can declare themselves a sovereign in their own home but they cannot ignore the laws of Australia or not pay tax.

Each of the defendants advances the pseudo legal straw man argument. The straw man argument has no legal merit or substance. Leonard Casley advances an argument based on the Hutt River Province being the political and financial branch of the church of Nian. That argument has no legal merit or substance. The defendants have made other assertions in their affidavits and submissions which are irrelevant and raise no defence to the claims against them. In each action the defendant has no defence to the claims by the Deputy Commissioner. In each action judgment will be entered in favour of the Deputy Commissioner against each defendant.

The  judgment states

The jurisdiction argument - secession

[11] Each of the defendants asserts that the court has no jurisdiction over them or no jurisdiction to hear these claims. In essence, they say that the land on which they reside is part of the Principality of Hutt River which seceded from Australia and is no longer part of Australia, that they are the sovereign or a citizen of Hutt River, a sovereign independent state, they are not residents of Australia, the laws of Australia and in particular the taxation laws do not apply to them and this court has no jurisdiction over them.

[12] In 1970 Leonard Casley was a wheat farmer. He was aggrieved by the wheat quotas allocated to his business. He served a notice of secession on the Western Australian Premier, the Governor, the Prime Minister and the Governor General. He also notified the Queen. Since then he has taken other steps which he believes are the acts of an independent sovereign state including declaring war on Australia. He is convinced that, in taking these steps, he succeeded in separating Hutt River from Australia.

[13] Covering cl 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) (Constitution Act) relevantly provides: This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State ... This court is bound by and to give effect to the Constitution Act and to any law made by the Parliament of the Commonwealth under the Constitution, including the TAA.

[14] In 2007 Leonard Casley applied to the High Court to remove two sets of proceedings from the Geraldton Magistrates Court to the High Court under s 40 of the Judiciary Act 1903 (Cth). Each of the proceedings related to offences of not filing taxation returns. The applicants contended that they reside in the so called Hutt River Province and that that is not part of Australia and not subject to Australian taxation laws. In dismissing their applications Heydon J said:

The arguments advanced by the applicants are fatuous, frivolous and vexatious: Casley v Commissioner of Taxation [2007] HCA Trans 590.

The observations of Heydon J are apt to describe the arguments advanced by the defendants in this case.

Jurisdiction - Straw man

[15] In an affidavit filed by Leonard Casley he swore:

I am the Real Man, Leonard George Casley born at Kalgoorlie Western Australia on 27 August 1925. Upon the registration of my birth certificate, it is claimed that I became a ward of the state. Owing allegiance to the Monarch, under contract and the Monarch undertakes the protection of myself and my property. ... I am Leonard George Casley, a real man not a straw man. The Straw Man is a fictitious body, which does not exist, but is that which is controlled by the State, and the State's judiciary.

An affidavit filed by Arthur Casley contains similar statements. This appears to be a variant of the strange pseudolegal straw man theory. The theory holds that an individual has two personas, one of himself as a real flesh and blood human being and the other, a separate legal personality who is the straw man. The idea is that an individual's debts, liabilities, taxes and legal responsibilities belong to the straw man rather than the physical individual who incurred those obligations, conveniently allowing one to escape their debts and responsibilities. It is all gobbledygook.

Jurisdiction - church of Nain

[16] Leonard Casley referred to the establishment of the church of Nain. In a document filed in the court Mr Casley said that the Hutt River Province Principality is the political and financial branch of the church of Nain. In answer to a question from the court Mr Casley referred to s 116 of the Constitution which precludes the Commonwealth from making laws for establishing any religion, imposing any religious observance or prohibiting the free exercise of any religion. It has nothing to do with the defendants' liability to pay tax.

Other matters advanced by defendants

[17] In affidavits and submissions filed by the defendants they made numerous other statements irrelevant to the issues before the court. They range from the merely irrelevant to the bizarre, such as the statement that the ATO has been utilising a form of torture known as 'Old Hags Nagging'. It is not sensible or a proper use of judicial resources to recite and analyse all of the defendants' utterances masquerading as legal submissions. It is sufficient to say that none of them raises a defence to the Deputy Commissioner's claims or any reason why there ought to be a trial of the claims.

Conclusion

[18] The defendants have not made out any of their assertions that the court does not have jurisdiction over them or jurisdiction to hear the plaintiff's claims. The application of each of the defendants to set aside the writ will be dismissed.

Similarly implausible arguments were unsuccessfully raised in ACCC v Purple Harmony Plates Pty Limited [2001] FCA 1062, where the ourt stated 

 [23] The respondents challenged the jurisdiction of the Court to hear and determine the application filed by the Commission. Their contentions focused on claims that the Act was invalid, and that they were not subject to the jurisdiction of the Court as they had seceded from the Commonwealth of Australia and were now citizens of the Principality of Caledonia, having transferred their assets and investments to the Principality. 

[24] It was not apparent what were the boundaries of that Principality, but the address of the company and Mr Lyster was 20 Davis Street Kew. The respondents filed a joint affidavit sworn on 19 April 2001 in which they asserted that:

* According to s 7 of the Act, it was the duty of the Governor-General to appoint members of the Commission; 

* The post of Governor-General does not hold a legal position or authority to carry out this duty. The position of Governor-General has never existed or held jurisdiction in matters pertaining to the Commonwealth of Australia or the people of Australia as the appointment of each of the Governors-General was invalid because the relevant Letters Patent were not signed under the Royal Sign Manual or by Queen Victoria's heir; 

* All employees, members and associate members of the Commission were illegally employed and had no jurisdiction over matters described in the Act; 

* As the post of Governor-General was invalid, the Act was invalidly assented to and was unconstitutional, null and void; 

* On and from 17 February 1986, the respondents formed the constructive intent to secede from the Commonwealth of Australia, and the Governor of the State of Sherwood had the power to deem the respondents to be Caledonian citizens and to have seceded from that date; 

* As Caledonian citizens, the respondents had no allegiance to uphold contracts pertaining to the Commonwealth of Australia and were not beholden to answer to the Commission; 

* All members of parliament, ministers of State and justices were invalidly appointed; 

* As the respondents were no longer citizens of the Commonwealth of Australia, having chosen to exercise their right of secession, they were immune from the jurisdiction of the Court; 

* The former officers of the former de facto government of the Crown and Government of the Commonwealth of Australia, including the Commission, by continuing to assume sovereignty over the people of Australia, represented the imposition over the people of Australia of a foreign power; 

* There were no members or employees of the Commission validly appointed at law to cause the issue of demand for relief sought in the Commission's application, to cause the issue of the initial inquiry, to swear any affidavit in support of application for relief, or to appoint and instruct the Australian Government Solicitor (also invalidly or illegally appointed) to prosecute the proceeding.

The respondents also claimed $30 million in damages and sought injunctions directing the Commission to distribute and publish corrective material and directing all unconstitutional government bodies to exempt the respondents' activities. 

[25] Similar arguments in respect of the invalidity of certain other legislation were considered and rejected by Hayne J in Joose v Australian Securities & Investment Commission [1998] HCA 78; (1998) 73 ALJR 232 and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; (1999) 166 ALR 302. In those cases, it was submitted that there had been a break in sovereignty in Australia with the effect that some legislation purportedly passed by the Parliament of the Commonwealth, or one or more State Parliaments was invalid. Hayne J considered that these submissions confused questions of political sovereignty with the question of identifying the supreme legislative authority recognised in the legal system and the rules for recognising its valid laws. He found that these questions were resolved by cl 5 of the Commonwealth Constitution which provided that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution were binding on the Courts, judges and people of every State and every part of the Commonwealth. 

[26] The respondents' arguments were also not unlike those considered by Hill J in Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 in which his Honour rejected an argument that the Income Tax Assessment Act 1936 (Cth) was invalid and made a costs order against the solicitor who had advanced that argument in opposition to a creditor's petition against his client. This decision was upheld by the Full Court in Levick v Deputy Commissioner of Taxation (2000) 120 FCR 155. 

[27] I reject the respondents' submission that the Governors-General have not been properly appointed and that legislation assented to by the Governors-General has not been validly assented to. On 29 October 1900, Queen Victoria issued Letters Patent constituting the office of Governor-General of the Commonwealth of Australia. Those Letters Patent were passed under the seal of the United Kingdom and issued by Warrant under the Queen's Sign Manual: Commonwealth Gazette (No 1), 1 January 1901. The first Governor-General, Lord Hopetoun, was appointed to his office in accordance with those Letters Patent. The current Letters Patent were issued by Queen Elizabeth II on 21 August 1984 and gazetted in the Commonwealth Special Gazette (No S334), 24 August 1984. The Governor-General at the time the application was filed, Sir William Deane, was appointed to his office in accordance with the current Letters Patent by Commission dated 29 December 1995 passed under the Royal Sign Manual and the Great Seal of Australia and took the oath of allegiance and prescribed oath of office on 16 February 1996: Commonwealth Special Gazette (No S66), 19 February 1996. As each of the Governors-General have been validly appointed, there is no merit in the respondents' contentions that all members of parliament, ministers of State and justices were invalidly appointed or that the Act is invalid. 

[28] I also reject the respondents' claims that they are no longer citizens of the Commonwealth of Australia, having chosen to secede. The Commonwealth Constitution recognises the Commonwealth and the States and Territories as the only entities in the federal polity known as the Commonwealth of Australia. An area of land cannot cease to be part of a State in the Commonwealth of Australia except pursuant to s 123 of the Constitution which provides that:

"The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected." 

There are no other constitutional means available for the establishment of any separate political community in Australia. The territory allegedly forming the Principality of Caledonia remains part of Australia and the respondents remain subject to Australian law, including the Act. 

[29] The respondents asserted that they had seceded from the Commonwealth of Australia and that the crown land of Australia had been annexed by the Principality of Caledonia through the United Nations. Such an assertion is quite untenable and I reject it. The respondents were not able to produce a copy of the instrument by which the transfer was effected at the hearing. The Commission produced evidence of the incorporation of the company under the Corporations Law and evidence that Mr Lyster and Ms Glover were directors and secretaries of the company. Mr Lyster and Ms Glover acknowledged (as was disclosed by a search obtained from records of the Australian Securities and Investments Commission) that they were directors and secretaries of the company and that the company carried on business at 20 Davis Street Kew, which is geographically within the State of Victoria and, therefore, part of the Commonwealth of Australia. ...

In Australian Competition & Consumer Commission v Purple Harmony Plates Pty Limited (No 3) [2002] FCA 1487 the Court states 

 Mr Lyster filed an affidavit on 24 October 2002 in which he contended that my judgment, which I took to be a reference to the 6 August order, was of no effect. The affidavit is discursive and difficult to comprehend, but I take Mr Lyster to be asserting that I had no jurisdiction to make the orders on 6 August 2001 and 9 April 2002. Mr Lyster maintained that he was the Head of State of the Principality of Caledonia, and that his title was:

"H.R.H. Prince Neal Arthur Lyster 

(i) Prince Palatine of the Kingdom of Heaven and Earth, 

(ii) Bishop of St David's Diocese Southern Cross appointed by Hereditary Constable Foley in keeping with the Customs and traditions of the Church in Wales, 

(iii) Governor of H.M. Government of the Commonwealth of Caledonia Australis".

The address of Mr Lyster shown on his affidavit was stated to be "20 Davis Street, Kew, the Principality of Caledonia, Australia 3101". He contended that he was not subject to the jurisdiction of the Court and that he had been advised by a person who he described as "Ab Beth Din" that my previous judgments were unconstitutional and null and void. He asserted that effect is not given to the decision of a judge delivered in excess of his or her jurisdiction. 

28 Mr Lyster contended in his affidavit that there were decisions of two courts which supported his submission that I did not have jurisdiction to entertain the claims made by the Commission against him. Mr Lyster tendered as an exhibit a "Conditional notice of intention to defend" in the Magistrates' Court at Ipswich, Queensland in which the Ipswich City Council was the plaintiff. Mr Lyster appeared to be saying that the document was an order or judgment of the court, but it is not. 

[29] Mr Lyster also relied upon the decision of Cooper J in Gunter v Hollingworth [2002] FCA 943. In that case the applicant filed a petition in the High Court of Australia sitting as the Court of Disputed Returns. The petition related to the general election for the House of Representatives and half of the Senate held on 10 November 2001. The petition was referred by the High Court for trial to the Federal Court in the Queensland District Registry. The Australian Electoral Commission, which was a respondent to the petition, filed a summons seeking that the petition be dismissed on the grounds that: 

* the Court of Disputed Returns had no jurisdiction to entertain the petition as it sought relief on the ground that the entirety of the general election was void; 

* by virtue of s 358(1) of the Commonwealth Electoral Act 1918 (Cth) no proceeding could be had on the petition as it did not comply with s 355(1) of the Commonwealth Electoral Act 1918 (Cth) because it failed to set out facts which would invalidate any election or return.

Cooper J was satisfied that both grounds of objection had been made out and that the petition should be dismissed. 

[30] Two of the respondents to the petition claimed to appear as citizens of the Independent Sovereign State of Australia. They apparently contended that they were not citizens of the Commonwealth of Australia and they supported the petition. They also sought orders to the effect that, as citizens of the Principality of Acworth, they were not citizens of the Commonwealth of Australia and were exempt from observing a number of statutory provisions applicable to citizens of the Commonwealth of Australia. Mr Lyster appeared to submit that Cooper J accepted this contention or submission. Cooper J did not do so. In relation to those particular respondents, as well as other respondents in the proceeding, Cooper J was concerned with, inter alia, the situation whether a person who was not entitled to vote at a particular election had the right to appear on a petition challenging such election and to be made a party to it. The reasons for judgment of Cooper J do not support the proposition for which Mr Lyster contended. 

[31] I reject Mr Lyster's submission that my previous judgments were unconstitutional and null and void and I reject the proposition that I have acted in excess of jurisdiction and that effect is not to be given to my earlier judgments and orders. I reject Mr Lyster's contention that he is a Head of State, holds the positions or titles for which he contends and that he is not subject to the jurisdiction of the Court. I am satisfied that I had the power and the jurisdiction to make the earlier orders on 6 August 2001 and 9 April 2002 ... 

[58] Unlike Ms Glover, Mr Lyster has made no apology to the Court and has been quite unrepentant. He does not recognise the authority or jurisdiction of the Court and does not regard himself as required to perform any obligations imposed upon him by order of the Court. Notwithstanding the findings I made in my reasons for judgment on 6 August 2001, Mr Lyster continues to maintain that he is not subject to the authority or jurisdiction of the Court and is entitled to disregard the Court's authority and jurisdiction because in some manner he has seceded from the Commonwealth and has established the Principality of Caledonia. He Is under a misapprehension in this respect. ... 

[60] Ordinarily, in such circumstances I would be disposed to order a term of imprisonment for Mr Lyster and direct that a warrant for his committal to prison be issued and executed forthwith. However, having listened to Mr Lyster on a number of occasions I am satisfied that he lacks a full appreciation of the seriousness of the position in which he now finds himself. I am satisfied that he does not appreciate fully that he is subject to two Court orders which require him to carry out certain acts and that if he does not comply with them it is open to the Court to order that he be committed to prison for a period of time. However I take into account the fact that he has not been legally represented and does not appear to have had access to competent legal advice. Mr Lyster is labouring under a delusion that he is the head of state of a non-existent state and that his conduct is beyond the reach of the laws of Australia. Mr Lyster should realise he is quite wrong in this respect. He is obliged to comply with the laws of Australia and orders of the Federal Court of Australia. 

[61] In the interests of justice I consider that the appropriate course for me to take is to bring home to Mr Lyster, as I have, the seriousness of his conduct in refusing to recognise the authority and jurisdiction of the Court, and to give him an opportunity to alter his position and recognise the authority and jurisdiction of the Court by complying with the orders I have made and propose to make. If he is prepared to do so he will be able to avoid a term of imprisonment as I propose to order that a warrant for his committal to prison for one month issue and lie in the Registry and not be executed provided Mr Lyster complies with a number of conditions. If he is not prepared to do so it will follow that the warrant issued for his committal to prison for a period of one month be executed.

Theory and Realists

'The Rise and Fall of Private Law Theory' by Steve Hedley in (2018) Law Quarterly Review comments

Over the last four decades of common law thought, there have been increasingly sophisticated attempts to develop comprehensive theories of private law. Chief amongst these are (1) theories of corrective justice, (2) economic theories, and (3) formalist accounts. The common feature of these apparently diverse ‘grand theories’ is a lack of trust in collective action: legislatures are not trusted to serve the public good, individuals are trusted only to pursue their private interests, and judges are trusted only when they focus on technical legal issues, not when they ask whether their decisions may have a broader significance. These accounts implicitly contrast the rights of individuals with the good of the community. Yet the opposition is false: safeguarding the rights of individuals is safeguarding the good of the community, and vice-versa. Their approach makes large areas of private law either invisible or incomprehensible, and leave them with little to say on how the law can be reformed or improved. Trust in collective institutions, as well as in individuals, is ubiquitous in all modern societies – rightly so, necessarily so – and as this is more widely appreciated, these grand theories are progressively losing their distinctive character as their better points are absorbed back into mainstream legal thinking.

'The Return of Legal Realism' by Dan Priel in Markus D Dubber and Christopher Tomlins (eds) The Oxford Handbook of Historical Legal Research (Oxford University Press, 2018) comments

The main goal of this essay is to explain in what sense ‘we are all realists now’. It examines various answers to this question suggested by existing literature and proposes another. The key is identifying a fundamental divide among the legal realists on what makes their view ‘realistic’. One group of legal realists, of whom Karl Llewellyn and Jerome Frank are the most notable exponents, has argued that realism consists in greater awareness by legal academics to the realities of legal practice. The other group, of whom Felix Cohen and Walter Wheeler Cook were notable exponents, has argued that being realistic about law meant adopting the methods of the natural sciences. Following on this, the two groups of realists have given very different answers to a series of fundamental questions about such as the common law, the proper approach to law reform, legal education. Ultimately, I argue, these two views rest on competing views on the authority of law. It is this contrast, I argue, that allows us to place the realists in historical context, as well as explain the continuing relevance of legal realism(s) to contemporary debates.

CentrelinkFail

The Design, scope, cost-benefit analysis, contracts awarded and implementation associated with the Better Management of the Social Welfare System initiative report by the Senate Standing Committee on Community Affairs offers the following recommendations

Recommendation 1

6.9 The committee recommends the Online Compliance Intervention (OCI) program should be put on hold until all procedural fairness flaws are addressed, and the other recommendations of this report are implemented. If these issues are addressed, the OCI should only be continued in its new form after the new One Touch Payroll system is implemented in 2018.

Recommendation 2

6.10 The committee strongly recommends that the rollout of a redesigned system must include a robust risk assessment process, which includes consultation with relevant expert stakeholders.

Recommendation 3

6.11 The committee recommends that all people who have had a debt amount determined through the use of income averaging should have their debt amounts re-assessed immediately by a team of departmental officers with specialist knowledge of the Online Compliance Intervention program, using accurate income data sourced from employers. This re-assessment must include the full range of unpaid, partially paid and fully paid debts incurred by current income payment recipients and those debts outsourced to debt collection agencies.

Recommendation 4

6.14 The committee recommends all data-matching guidelines and protocols be adhered to, including the Data-matching Program (Assistance and Tax) Act 1990, regardless of whether the department is using tax file numbers. This will require the department to halt the Online Compliance Intervention process while steps are taken to ensure compliance with all mandatory and voluntary provisions. Adherence to these provisions should be verifiable by the public in order to maintain trust in the social security system.

Recommendation 5

6.15 The committee recommends the department update its privacy policy to ensure that it does not publicly release sensitive information it holds about individuals, for any reason.

Recommendation 6

6.16 The committee recommends the department resume full responsibility for calculating verifiable debts (including manual checking) relating to income support overpayments, which are based on actual fortnightly earnings and not an assumed average.

Recommendation 7

6.18 The committee recommends the department review all debt cases where the 10 per cent recovery fee was automatically imposed, and in line with procedural fairness, allow each person a fully-informed opportunity to apply to have the debt recovery fee waived.

Recommendation 8

6.19 The committee recommends personal or technical barriers to communication which impacted an individual's ability to undertake income reporting, should be included in the reasonable excuse framework for waiving the debt recovery fee.

Recommendation 9

6.21 The committee recommends Accessible Information, in particular Easy English versions, be made available in all debt recovery programs, including online portals. The committee strongly recommends this should be a whole-of-department change, to ensure that producing Accessible Information versions of all Centrelink communications material become standard operating procedure.

Recommendation 10

6.22 The committee recommends the department ensure that in the re-design of the Online Compliance Intervention system, if it continues, the new system has the necessary protocols to protect vulnerable cohorts, including people experiencing mental health issues. The committee strongly recommends this should be a whole-of-department change, including reconvening the Consumer Consultative Group, the Service Delivery Advisory Group and the Mental Health Advisory Working Party.

Recommendation 11

6.23 The committee recommends that the department provide all Online Compliance Intervention participants with the debt calculation data required to be assured any debts are correct.

Recommendation 12

6.24 The committee recommends the Department of Human Services be adequately resourced to implement all recommendations of this report, and to improve the level of service provided to Centrelink recipients. In particular, the committee recommends increased investment in communication channels and staff, to ensure calls are answered in a more timely manner. The committee strongly recommends this as a whole-of-department change.

Recommendation 13

6.29 The committee recommends that clear and comprehensive advice on the internal and external reassessment, review rights and processes are made available to all Online Compliance Intervention-impacted individuals.

Recommendation 14

6.30 The committee recommends that clear and comprehensive advice on the ability to seek an extension of time to provide income documentation is made available to all Online Compliance Intervention-impacted individuals.

Recommendation 15

6.31 The committee recommends that community legal service funding be reviewed in the next budget, to ensure community legal services are able to meet the community need for legal advice relating to Online Compliance Intervention matters.

Recommendation 16

6.32 The committee recommends the operating budgets for the Administrative Appeals Tribunal be reviewed to plan for an increased workload on Online Compliance Intervention-related matters, to ensure these cases are progressed within appropriate timeframes.

Recommendation 17

6.33 The committee strongly recommends that an outstanding debt should not exclude a person from advance payments needed for essential goods and services.

Recommendation 18

6.36 The committee recommends the department voluntarily undertake to be bound by all debt collection and consumer law legislation and guidelines, and ensure regular external scrutiny to ensure compliance. This should explicitly include the actions of external contractors working on behalf of the department.

Recommendation 19

6.37 The committee recommends the department ensures an independent review of internal and external debt collection practices is undertaken, to ensure all procedures are adhering to industry standards, such as the suspension of debt collection where debt liability is disputed, and the provision of accurate and relevant information to debtors.

Recommendation 20

6.38 The committee recommends the department consider adoption of the principles of the Victorian Judgement Debt Recovery Act which precludes debt collection to be made from Centrelink payments that are recognised minimum payments required for food, shelter and other life essentials.

Recommendation 21

6.39 The committee further recommends the department develop guidelines on appropriate levels of debt repayment to income ratios, to ensure that debt repayment amounts do not impact any individual's ability to purchase life essentials.

Personhood

'Property without Personhood' by Shelly Kreiczer-Levy in (2017) 47 Seton Hall Law Review comments 

The property as personhood theory provides a dominant justification for legal theory and has shaped numerous legal doctrines. Although the theory has been criticized by many scholars, one important concern has escaped scholars thus far. Property as personhood limits identity and confines growth. The concept allows little room for experimenting with personality and testing one’s lifestyle. Access, a rising form of property use in the sharing economy, provides an important alternative. It allows for property use without personhood, emphasizing choice, flexibility and mobility. This Article presents this alternative and explains its significance to property legal theory contra the property as personhood theory. It also details the benefits and costs associated with property without personhood, and sketches out possible legal implications.

'The Legal Status of Artificially Intelligent Robots: Personhood, Taxation and Control' by Filipe Maia Alexandre comments 

The introduction of artificial intelligence in industry and society will revolutionize the current social structures and comport several regulatory challenges, which legal frameworks are not prepared to give a direct response to. In order to accommodate this reality, we understand that machines with limited memory, machines with a theory of mind and self-aware machines should be considered separate legal entities from their owners and users. Attributing a separate legal status to artificially intelligent agents and defining the contents of that status, namely, regarding liability, eventual rights and potential taxation duties, allows for minimum certainty concerning the consequences of the introduction of those new intelligent agents in society, which contrasts with the large amount of unforeseeability that it comports. However, the risks of that unforeseeability still need to be addressed and mitigated, as they are not only related to eventual damages, but also to the protection of personal data and public safety. When designing technology that could impact the safety or wellbeing of humans, it is not enough to simply presume it works.

Triggers

'How to Make a Queer Scene, or Notes toward a Practice of Affective Curation'  by Ramzi Fawaz in (2016) 42(3) Feminist Studies 757 considers trigger warnings, resilience and respect.

Fawaz explains

 Let me begin with two stories. In spring of 2013 I organized a semester-long, undergraduate film series at George Washington University titled “Acting Up: Queer Film and Video in the Time of AIDS.” At semester’s end, after participants had watched nine films about the AIDS epidemic — among them classic AIDS documentaries, activist videos, and mainstream Hollywood productions — I chose to conclude the series with the AIDS documentary Silverlake Life: The View from Here. Silverlake Life documents a year in the lives of Tom Joslin and Peter Friedman, a gay couple living in Los Angeles in the late 1980s who share an HIV diagnosis. At the time I made the selection, I did not realize that Silverlake Life documents one of the most devastating lived experiences of the AIDS epidemic ever filmed: during the course of taping, Tom, the initial documentarian, becomes gravely ill and dies on camera while lying in bed after a week-long convalescence. Reviewing this scene before our official screening, I found myself overwhelmed by intense feelings of anxiety. On the one hand, I felt a deep responsibility to expose my students to the aesthetic and political work of this daring documentary, and on the other, to protect them from witnessing forms of suffering that might traumatize them more than illuminate the social history of AIDS. When we convened to discuss the film, many students expressed how devastated they were by what they had seen. Rather than shutting down conversation, however, the depth and intensity of their viewing experience galvanized an extraordinary conversation about the ethics of documenting the lives (and deaths) of people with AIDS. What they witnessed expanded the very possibilities of what they could feel about issues of collective concern such as the AIDS epidemic, while also trans-forming their ability to reconsider productive encounters with pain, suffering, and trauma. In my fear of negatively impacting students, I had forgotten both their capacity to respond with generosity and openness to traumatic images as well as my own careful curation of nine previous films and the attendant conversations held around them, which had laid a groundwork of shared affective openness to difficult content.

One year later, as a newly minted assistant professor of English at the University of Wisconsin, Madison, I taught a large lecture course on American fantasy. In the fourth week of class, I screened The Wizard of Oz as part of a unit on the Hollywood musical, and I devoted a lecture to a gay and lesbian interpretation of this classic film. I highlighted the movie’s camp aesthetics, its gender play and drag elements, and its derailing of traditional heterosexual romance plots. As a gay man well versed in queer media scholarship, I took it for granted that this was a pleasurable but patently obvious interpretation of a film that I assumed most people recognized for its exuberant and visually spectacular gayness. Yet as I spoke, I sensed a visceral tension build in the room. Half the students seemed mesmerized by the possibility of a queer aesthetic underlying the movie, while the other half frowned at me in silent fury, outraged by my daring to desecrate the presumed innocence of a childhood escape. The seething resentment of this latter group was confirmed for me when, weeks later, my teaching assistants disclosed that numerous students had expressed feelings of anger and frustration that my interpretation had “ruined” their pleasure in a beloved film of their youth. This circumstance prompted me to confront my students the following week: micro-phone in hand, I strolled the room and asked students to account for their feelings of discomfort. I wanted them to explain why their personal pleasure in The Wizard of Oz hinged on the diminishment of alternative viewing possibilities, including unexpected queer delights in transparently “straight” narratives. Students were clearly jolted out of their complacent belief that no one would hold them accountable for their perspective, or that their view might have political or ethical consequences: yet the resistance of some to being called out was counterbalanced by a dawning consciousness among others about how taken-for-granted their way of viewing and consuming popular fantasy stories could be.

I recount these two pedagogical scenarios because they illuminate a central, yet often uninterrogated, aspect of the contemporary national debates around trigger warnings: namely, the slippage between actual experiences of psychological trauma triggered by violent or disturbing media content (what the very concept of the trigger warning was originally intended to address), and the generalized feeling of discomfort aroused in students when they encounter objects, scenarios, and ideas contrary to their worldview. No doubt, just as these two definitions of triggering are not identical, the two classroom experiences I recount were not the same: in the former, my students had been prepared to witness and respond to traumatic content through a semester-long engagement with films about the AIDS epidemic (and they had discussed these movies in an intimate seminar setting that allowed for a sense of trust between participants); in the latter, students responded negatively not to traumatic course content, but to a line of thought that offended their sensibilities in a large lecture setting where individual discomfort has fewer outlets for public airing. Yet it struck me that what really distinguished the two scenarios was less the specific forms of triggering or the distinct logistics of each pedagogical environment, but the subsequent reactions that students had to being made uncomfortable: in one setting openness to interrogating their affective responses to the world; in the other, a defensive posture against perceived threats to their point of view. While the results of each teaching experience surprised me, what I had wanted out of my course material was, in a sense, to intentionally trigger my students—not in the traditional understanding of triggering as having a negative psychological impact, but in the sense of jolting their sensory experience of the world by creating the space where unpredictable and unsettling affective responses to course content might provoke our dialogues. Clearly, students in my American fantasy course felt triggered in some amorphous but no less impactful way by my lecture, but they lacked a critical vocabulary or even the inclination to question what it was they were feeling when they recoiled from my ideas. In the wake of these experiences, I wondered how I might make visible the pedagogical strategy of eliciting a range of potentially discomforting affective responses from students and, thus, lay bare the pleasures and insights of such discomfort. I wanted to know: if we wish to change the way our students respond to a chaotic and unpredictable world, how should we teach them?

In this essay, I put forward a pedagogical model I call “affective curation,” that centralizes the value of intentionally eliciting, or “triggering,” uncomfortable affective responses from students in the class-room in order to develop new strategies for retuning, rerouting, or altogether altering students’ sense perceptions of the world. My interest is to find productive ways that we, as teachers and scholars, might take students’ feelings more seriously and animate lively and productive discussion about those feelings while also holding students accountable for their emotional responses toward a range of ideas, objects, and realities. … My belief is that the capacity to engage more fully with the vast range of affects available to any given human being is a central aspect of a liberal education that current debates around trigger warnings often obscure, either by centralizing questions of psychological health that bracket feeling states as off-limits to rational deliberation, or by diminishing the value of emotional responses to course material by suggesting that feelings have no place in the classroom. Against both these lines of thought, I wish to explore what it might mean to infuse the contemporary debate around trigger warnings with that seemingly old-fashioned feminist consciousness-raising project of taking feelings seriously, of perceiving one’s affective or gut-level responses to the world as a form of knowledge that can be accessed with unpredictable but potentially ethical and democratic results.

Attrition

The Higher Education Standards Panel Discussion Paper 'Improving retention, completion and success in higher education' questions media alarmism (shared by at least one university) regarding student attrition.

The discussion paper comments

 In November 2016 the Minister for Education and Training, Senator Simon Birmingham asked the Higher Education Standards Panel (the Panel) to examine:

• the trends and factors driving completions and attrition 

• the adequacy of existing data on completions and attrition and improvements that can enhance transparency and institutional accountability  

• strategies institutions can pursue to support student success and course completion in higher education 

• ways in which the identification of students at risk of non-completion, and the adoption of evidence-based support strategies to maximise their opportunity to succeed, can be systematically embedded in provider practice.

There have been claims that there is a crisis in attrition rates in Australian higher education. In September 2016, following the release of 2015 student data by the Department of Education and Training (the department), media reports stated that high attrition rates are symptomatic of poor admission standards; the lower a student’s Australian Tertiary Admission Rank (ATAR) the greater the risk of non-completion; and as a result of the demand driven system, higher student numbers are leading to greater numbers of student drop-outs. 

The facts do not support these assertions.

There is a long history of concern about higher education student attrition and the factors driving it. Since the 1950s, when the Australian Government claimed a role in higher education funding, there have been numerous reviews and various recommendations into how to support students in the completion of their degrees. It appears the key turning point in improving student completions was when students began paying a greater contribution of the cost of their course, although with support from income contingent loans.

In this century there have been fluctuations in retention - and significant variations by institution -but no clear worsening of the overall situation. The attrition rate for Australian universities in 2014 is similar to what it was in 2005, despite some movement during that period . The attrition rate fell from 15.04 per cent in 2005 down to a low of 12.48 per cent in 2009, before rising over the remainder of the period to 15.18 per cent in 2014.

Attrition rates for non-university higher education providers (NUHEPs) are complex to measure and difficult to compare to university attrition rates. It is clear that students at NUHEPs have higher attrition rates and lower completion rates compared to Table A and B universities. However, their record is improving. The normal attrition rate for NUHEPs in 2007 was 35.90 per cent and this has dropped to 26.20 per cent in 2014. The completion gap between universities and NUHEPs has slightly narrowed.

It could be argued that too many students take too long to complete their degrees or, conversely, that many students who look as though they have given up their studies later return to finish them. Certainly, many students who leave their studies in their first year return to higher education and complete their studies within nine years . Recent research by La Trobe University verified this and found a large number of students return to an institution after only one year of absence . Nevertheless, first year attrition is very highly correlated with overall nine year completion rates. Thus it remains a useful leading indicator both of provider and student cohort performance.

It could be argued that, as increasingly happens in the vocational education sector, students may be satisfied that the courses they have undertaken give them what employers need and that it is not necessarily important that they fail to achieve certification. With respect to degrees this is not persuasive. Completion is important because only when students complete their qualifications is the learning truly portable. Without certification students and the economy as a whole are unlikely to realise the full potential impact on lifetime earnings and productivity gains that higher education offers. The nature of the investment by individuals and taxpayers alike is diminished.

So what factors influence the likelihood of student success? Recent research has found the most likely factors contributing to student attrition are part-time attendance, followed by age and academic preparation, as measured by a person’s ATAR. However, these predictors are relatively weak. The La Trobe University study found much of student attrition is either unpredictable or inevitable. Common reasons cited for withdrawal are personal, including physical or mental health issues, financial pressures and other reasons often beyond institutional control. This may help to explain the relative inelasticity of national attrition data over time.

For this reason, higher education providers necessarily operate on the basis that not all students will complete their degrees and subsequently there will never be nil attrition.

In 2016, Deputy Chief Executive of Universities Australia, Catriona Jackson wrote:

Some have assumed that growing student numbers have been to blame for growing attrition rates, and you can see this is an easy assumption to make. But if this were true, the universities that were enrolling the biggest numbers would also have the biggest drop out rates, and they don’t.

What the data actually tells us is that the universities with the highest proportion of mature age and part-time students have the highest attrition rates. And that makes sense. These students are much more likely to be juggling university study with jobs, children or caring for elderly parents.

One thing that is sure is that 15 per cent attrition rate is relatively stable — it is 15 per cent now like it was 15 per cent about a decade ago. Given this has coincided with a huge influx of new students, many from disadvantaged backgrounds, keeping attrition rates pretty stable is a major achievement.

But if we are to get the rates down, we need to dig into the causes, ask who is leaving university before completing their degree and why? 

The Panel stands by the view expressed in its November 2016 report, Improving the Transparency of Higher Education Admissions, that media coverage of Australian higher education attrition in September 2016 was ‘unnecessarily alarmist’. Reports misrepresented the scale of the problem, using raw attrition rates that were unadjusted for the impact of students changing courses or institutions. Nevertheless it is not appropriate to be complacent about the issue. Institutions should seek to reduce the level of non-completion. That is why the Panel, in its earlier report, recommended that further consideration should be given to assessing the factors and approaches that contribute to student success, completion and attrition rates in higher education. The Panel sees it important to interrogate the reason for attrition because it represents a lowering of the return on investment in education both for the individual student and government.

The Panel fully supports the Government’s response to our earlier report:

Enrolment is only the first step in the journey to a qualification and productive employment. If we wish to maximise the economic benefits of public investment in higher education, the Government and the public also need to be assured that everything possible is being done to ensure students have the best chance of successfully completing their enrolled units, courses and qualifications .

As indicated above, however, issues of retention, completion and success are not new. There have been countless reports and reviews conducted by government, research agencies, individual institutions and academics. Many providers have processes and strategies in place to assist students to complete their qualifications. These can include detailed and resource intensive interventions designed to identify students at risk of attrition or non-completion and provide the support necessary to assess their risks. Retention – the flipside of attrition – is a key element of those strategies.

The first part of this discussion paper provides a snapshot of the extensive work to date on retention, completion and success. It outlines some recent changes announced as part of the 2017-18 Budget, which have the potential to improve completion rates and reduce attrition rates, and it provides an analysis of the relevant trends and data. The second part of the paper examines how higher education providers and government are supporting students to make the right choices about their higher education and how students are being supported to remain in higher education once enrolled.

The paper reflects on the views of stakeholders who provided the Panel with feedback on retention, completion and success through their submissions to the 2016 work on admissions transparency, as well as the experience of a number of providers the department met with in the course of developing this paper.

The Panel is using this paper to pose a number of questions and flag new ideas for further discussion with Australia’s higher education community. Written submissions are invited and the Panel will be conducting targeted hearings to understand, first-hand, stakeholders’ thoughts on issues relating to student retention, completion and success.   

Questions to guide discussion

Setting expectations of completion

1. What should be the sector’s expectations of completion rates (or speed of completion)? 

Enhancing transparency 

2. What changes to data collection are necessary to enhance transparency and accountability in relation to student retention, completion and success? 

3. How could Government websites, such as QILT and Study Assist, be improved to assist students to make the right choices? For instance, how could student success, completions, retention and attrition data be made more accessible? Would a predictor for prospective students, such as a completions calculator, be useful and where would it best be situated? 

4. Can we enhance the tracking of students in tertiary education including movements between higher and vocational education (perhaps by linking the Commonwealth Higher Education Student Support Number and the VET sector Unique Student Identifier)? 

Supporting students to make the right choices 

5. What strategies would further strengthen outreach and careers advice to assist students making decisions about higher education? (A list of strategies that have been suggested in this paper are at p66) Supporting students to complete their studies 6. What identification, intervention and support strategies are most effective in improving student completion? (A list of strategies that have been suggested in this paper are at p66). How could support strategies be better promoted and more utilised by those students who most need them? 

7. What more could be done to encourage institutions to offer intermediate qualifications? Should universities or NUHEPs recognise partial completion of a degree through the award of a diploma, perhaps by using ‘nested’ degree courses? How much impact would there be on institutions who chose to offer such courses? 

Disseminating best practice 

8. What new and innovative approaches do evaluations suggest are improving student completion at individual higher education providers? 

9. What can we learn about enhancing student success from the international experience?   

10. What are the most effective ways for providers to share best practice? 

11. How can successful completion strategies be embedded into provider practice? 

Regulating 

12. What strategies should TEQSA employ to ensure compliance with the Higher Education Standards Framework which requires higher education providers to offer the level of support necessary to ensure student success? Does TEQSA require further powers in this regard?

The Panel offers the following suggestions, acknowledging the weakness of empirical evidence about  interventions that  a positive impact on student retention, completion and success.

Prior to entry

• Raise the aspirations of prospective students through outreach and early intervention • Provide informed career advice from as early as primary school • Ensure consistent, comparable information allows prospective students to make informed decisions 

Institutional culture 

• A healthy university culture that embraces diversity and flexibility • A supportive university learning environment that puts the student first • A culture that reinforces the importance of student success • A strategic plan that includes retention targets • An institutional retention strategy which includes procedures for the re-engagement of students who have withdrawn from higher education • A clear student voice 

Teaching and learning 

• More senior academic staff • High teacher quality and teacher ability • A focus on effective learning and teaching strategies • An early assessment task prior to the student withdrawal census date • Sharing best practice across the sector • A willingness to offer nested courses 

Support services 

• Use data generated at enrolment and through learning analytics to make effective interventions to support at risk students • High quality student support services (personal, financial, academic) • Targeted and well communicated student support strategies • Online support services • Peer mentoring Accountability • Collect exit data on why students have withdrawn from study • Hold institutions to account for entry standards and student outcomes.