Academic Re-marking

As part of a forthcoming study of tertiary student litigation I've noted Naik v Monash University [2018] VSC 605, in which Chinmay Naik seeks a judicial review of an assessment decision by Monash University. As is so often the case, the litigation is somewhat more complicated than the simplistic 'student sues university over dog video assignment' reporting during the past eight weeks

The judgment states

1 Chinmay Naik is a student at Monash University, where he is enrolled in a Masters of Journalism. He has nearly completed his degree. However, on 26 June 2017 Mr Naik was awarded a fail grade for the subject APG5135 Video Journalism, having been awarded a mark of 21% for an assessment task involving a video current affairs story. 

2 By an originating motion for judicial review filed on 29 June 2018 Mr Naik seeks an order in the nature of mandamus granting exemption from the result of that assessment task, and declaring an overall pass grade in APG5135 Video Journalism and completion of the Masters of Journalism course. He also seeks any other order that the Court deems appropriate to do justice between the parties. 

3 There is a 60-day time limit for commencing a proceeding for judicial review, and the Court may extend time only in special circumstances. So, when he commenced this proceeding on 29 June 2018, Mr Naik also applied by summons for an extension of time in which to commence the proceeding. The University opposes this application. 

4 For its part, the University filed a summons on 7 August 2018 seeking summary judgment under s 63 of the Civil Procedure Act 2010 (Vic). The University first foreshadowed that application at a directions hearing before me on 17 July 2018. On that day I made directions for the hearing of Mr Naik’s application for an extension of time, and for the University’s summary judgment application, and listed both applications for hearing on 17 September 2018. 

5 For the reasons that follow I have decided not to grant an extension of time. This means that the proceeding must be dismissed, and it is therefore not necessary to determine the summary judgment application. ...

6 Mr Naik has been a student of Monash University since July 2016. He is enrolled in the course A6008 Masters of Journalism. As an overseas student he is a temporary resident of Australia on a student visa. 

7 In Semester 1 of 2017 Mr Naik was enrolled in the subject APG5135 Video Journalism. One of the assessment tasks for this subject was a video current affairs story, which was to be submitted by 4 June 2017. 

8 Mr Naik’s case is that he has an ongoing disability, in the form of a generalised anxiety disorder, for which he has been prescribed medication since January 2017. From time to time his anxiety disorder affects his academic performance, and it impeded the completion of this assessment task in June 2017. He did not complete the task by the due date and on 6 June 2017 he sought an extension of time. 

9 Ultimately the University granted Mr Naik an extension within which to submit his video current affairs story, to 23 June 2017. However, on Mr Naik’s account, this extension was given grudgingly and only after a rather complicated process in which relevant University staff were slow to acknowledge that Mr Naik was seeking a reasonable adjustment for his disability. By the end of that process, Mr Naik was registered with the University’s Disability Support Services and was much better placed to negotiate flexible deadlines for future assessment tasks. He had also been given the extra time that he asked for to complete his current affairs video. It is clear, however, that Mr Naik found the process unsympathetic and stressful, and that he remains upset by it. 

10 While negotiating for an extension, Mr Naik struggled to complete the video assignment. On 22 June 2017 he was advised that he had been granted an extension to 23 June 2017, the next day, and that no further extension would be possible for the assessment task. Mr Naik submitted his video on 23 June 2017. 

11 Mr Naik’s lecturer assessed the video assignment and initially gave it a mark of 3.6 out of 30, or 12%. This mark was communicated to Mr Naik on 26 June 2017 by email. Later that day, the lecturer emailed Mr Naik again to advise that the current affairs story had been double marked and given a higher mark, ‘so I am giving you the higher grade’. The final mark for the assignment was 6.3 out of 30, or 21%. This meant that Mr Naik’s overall mark for APG5135 Video Journalism was only 44%, and a fail is recorded for the subject on his academic transcript. 

12 Otherwise, Mr Naik has passed every subject he has attempted, with a number of Credits and one Distinction. He remains enrolled as a student in the Masters of Journalism course and needs only one more subject to complete the degree. It is not necessary for him to pass APG5135 Video Journalism, as he has otherwise fulfilled the core requirements for the course. 

13 At present Mr Naik is taking a break from his studies. His enrolment as a student of the University is confirmed until 30 June 2019. 

14 Mr Naik is dissatisfied with the fail mark recorded for APG5135 Video Journalism and has disputed it in various ways: 

(a) In September 2017 he submitted an administrative grievance at the faculty level, which was dismissed in early October 2017. 

(b) On 17 October 2017 he appealed the outcome of his grievance to the University’s Student Ombudsman. The appeal was dismissed the following day. 

(c) Mr Naik then complained to the Victorian Ombudsman, on 25 October 2017. That complaint was dismissed on 9 March 2018. A review of that outcome by a senior officer in the Ombudsman’s office was dismissed on 12 April 2018. 

15 He has also made complaints under anti-discrimination legislation about the entire process, including what he alleges was a failure to make reasonable adjustments for his disability. An application under the Equal Opportunity Act 2010 (Vic) (EO Act), commenced on 27 March 2018, is pending before the Victorian Civil and Administrative Tribunal (VCAT), where a compulsory conference was held on 22 May 2018. Mr Naik withdrew an earlier complaint to the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth), and has apparently elected to pursue his complaint in the Victorian jurisdiction.

Further

32 It is certainly the case that Mr Naik spent some months after June 2017 exhausting all avenues of complaint within the University, within the Faculty of Arts and then with the University Student Ombudsman. During November 2017 various University staff advised Mr Naik that the double marking of his video current affairs story had been verified, that his mark would not change and that no further action would be taken. His internal remedies were exhausted by the end of November 2017. 

33 Mr Naik then took his grievance to the Victorian Ombudsman, who on 28 November 2017 declined to investigate. Mr Naik pressed his grievance with the Victorian Ombudsman and on 16 March 2018 an investigation officer advised that the Ombudsman’s office was unable to assist him further. The investigation officer’s emails to Mr Naik set out each of his grounds of complaint, the University’s response, and gave reasons why the Ombudsman’s office would not investigate further. Although she declined to investigate the grievance, on 9 March 2018 she conveyed an offer from the University to undertake a second review of the video assignment, and invited Mr Naik to resubmit the original video to be verified and reviewed. Mr Naik did not accept the University’s offer. Instead he sought review of the investigation officer’s assessment, which was confirmed by a senior investigation officer on 12 April 2018. 

34 In addition, from early December 2017 Mr Naik has pursued remedies under Victorian and federal discrimination legislation. As mentioned, he has commenced a proceeding at VCAT under the EO Act, which was the subject of a compulsory conference on 22 May 2018. There is a very substantial overlap between the grounds of review set out in Mr Naik’s originating motion and his particulars of claim filed in the VCAT proceeding. This overlap may explain why VCAT has stayed the proceeding pending this decision. ... 

37 I have not overlooked the fact that Mr Naik has been diagnosed with an anxiety condition that affects his concentration and his ability to manage his time, and which he claims meant that he ‘could not gather the strength to lodge a judicial review application’. 

38 The limited medical evidence does not support this contention. Mr Naik relied on a letter from his general practitioner dated 28 May 2018, which supported Mr Naik taking an intermission from his studies in the second semester of 2018 on mental health grounds. The letter noted an increase in Mr Naik’s anxiety symptoms ‘due to being in dispute with the University over an academic grievance issue’, and further noted that the issue was being dealt with by an appeal to an external body which he hoped would be resolved within the next six months. It recommended that Mr Naik take a break from his academic studies while dealing with the grievance. The doctor’s letter did not suggest that Mr Naik’s anxiety had affected his ability to pursue his grievance, or that it explained the 10-month delay in commencing this proceeding. 

39 To the contrary, there is ample evidence before the Court that Mr Naik has been able, since June 2017, to pursue his grievance with vigour and persistence. 

40 I have also considered the fact that Mr Naik is not legally represented in this proceeding, and has not been represented in any other forum. Again, lack of representation has not inhibited Mr Naik from pursuing his grievance, and does not explain his delay in seeking judicial review. 

41 Mr Naik did receive some advice in November 2017 from an advocate with the Monash Postgraduate Association. That advice was, in part, as follows: I can understand that you are not happy with the decisions you have received this far. Monash University is a body politic created pursuant to a statute. It is a matter of law that the University is empowered to make decisions and … exercises a discretion as to how it runs its affairs. There is an entire body of law explaining why Courts have been reluctant to intervene with decisions made by higher education providers. However, you are quite correct decisions can be challenged legally. 

42 It is apparent that Mr Naik understood in November 2017 that he could challenge the University’s decision legally, but that a court would probably be reluctant to intervene. He made a reasonable choice at that time not to seek judicial review, but to pursue his grievance in other forums. By mid-April 2018 it was clear that he would not obtain a remedy satisfactory to him in any of those forums. About 10 weeks later, he commenced this proceeding. I conclude that the reason for the delay here was simply that Mr Naik changed his mind about whether to seek judicial review, and then took some further weeks to act on that decision.

In considering potential judicial intervention Richards J states

43 The primary remedy that Mr Naik seeks is an order in the nature of mandamus granting exemption from the result of that assessment task, and declaring an overall pass grade in APG5135 Video Journalism and completion of the Masters of Journalism course. The effect of that order would be to override the judgment of University staff that Mr Naik has not yet completed the academic requirements set by the University for completion of both the subject and the degree and, in effect, to alter those requirements. 

44 The University submits that the Court does not have jurisdiction to make such an order, which involves an issue of academic judgment that is unsuitable for adjudication. I accept that submission. The Court’s judicial review jurisdiction is strictly supervisory and is confined to the lawfulness of a decision under review. It does not extend to marking an assignment or otherwise determining questions of academic merit. These are matters solely for the University – areas for academic judgment where the Court will not intrude. 

45 However, Mr Naik also seeks ‘any other order deemed appropriate by the court to do justice between the parties’. Alternative orders that the Court might make include an order in the nature of certiorari, setting aside the assessment of the video assignment, and an order requiring the University to re-assess the assignment according to law, as well as a declaration. The University accepted that the Court has jurisdiction to review the lawfulness of an assessment decision. It is therefore necessary to consider whether there is an arguable case for any relief on any of the grounds of review identified in Mr Naik’s originating motion. 

46 The first ground on which Mr Naik seeks relief is that, in managing his special consideration application, the University denied him reasonable adjustments in a reasonable time, and imposed unreasonable and disruptive conditions on the adjustment made. He alleges that this was contrary to s 40 of the EO Act, the Disability Standards for Education 2005 (Cth) and s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). These are not grounds to set aside the decision made by the University to give Mr Naik special consideration and to grant him the extension he had asked for, or the assessment of the video assignment he submitted. His complaints concern the way in which the University managed his application for an extension, rather than the ultimate decision to grant it or the assessment of his video. Those complaints, which Mr Naik also makes in his VCAT proceeding, are not matters that the Court can remedy on judicial review. There is no arguable case in relation to the first ground. 

47 The second ground for relief is that the decision to grant an extension of time to Mr Naik, made by staff in the Faculty of Arts special consideration team, was beyond power because the power was conferred exclusively on the Dean of the Faculty. I do not understand why Mr Naik has raised this argument about the validity of the extension of time that he was granted. It does not advance his cause at all. In any event, it is not a ground for setting aside the assessment of the video assignment. The only relief the Court might conceivably grant would be to set aside the extension of time granted in June 2017, and to require the University to reconsider his application according to law. That would put Mr Naik in a worse position than he is currently in, and so I will not consider it further. 

48 The third ground for relief concerns the double marking of the video assignment. Mr Naik argues that the second marking did not comply with the University’s Assessment in Coursework Units Policy and the Faculty of Arts Assessment Review and Marking Procedures Policy. The University Policy recommends double marking of all failed major items of assessment, where the second marker does not have access to the grades or comments of the first marker. The Faculty Policy is more detailed:

Where a remark is requested a member of academic staff with appropriate expertise will be appointed by the unit coordinator to assess the item in question. The second marker will be provided with a clean copy of the item of assessment and the criteria applicable to the assessment of the work. The second marker will not be informed of or provided with: the reason for the remark request; the original, corrected item of assessment; the original mark and grade awarded; the original marker’s comments on the item of assessment. … The second marker must note his/her name and signature on the assessment item together with brief comments to the student on the quality of the work. 

49 Mr Naik sought information from the University about the identity of the second marker and any documentation concerning their assessment of his video assignment. He has been advised that there is no such documentation, and the University has refused to tell him the name of the second marker. Mr Naik submits that this demonstrates that the relevant policies were not followed in his case. More particularly, he argues the Court can infer that there was no second marker and that his lecturer just marked the assignment again and decided to give him a higher mark. 

50 I accept, for the purposes of the extension of time application, that there is an arguable case that the University did not follow its relevant policies in double marking Mr Naik’s video assignment. The lack of documentation and the mystery as to the identity of the second marker might, if not explained by other evidence, support the inference advanced by Mr Naik. 

51 However, a failure by a decision-maker to follow a relevant policy or procedure is not necessarily a ground for a remedy on judicial review. A policy or procedure document is generally ‘soft law’ that is not to be applied with ‘statutory nicety’. Often, the only remedies available for breach of soft law are themselves ‘soft’, such as a complaint to an Ombudsman. There are limited circumstances in which non-compliance with a policy or procedure might amount to jurisdictional error that could be corrected by certiorari. Those circumstances include where the non-compliance involves a want of procedural fairness that results in practical injustice, where it demonstrates a failure to have regard to a relevant consideration or legal unreasonableness. A mere failure to follow a non-statutory assessment policy or procedure would not, without a good deal more, amount to jurisdictional error that invalidates a decision. 

52 Here, I do not consider that Mr Naik has an arguable case for an order in the nature of certiorari to correct the arguable non-compliance with the University’s policies and procedures for double marking a failed assessment task. In my view, none of the alleged failures to follow the policies are of such an order that they could invalidate the assessment of his video assignment. Nor do I consider that they could amount to unlawfulness that might be the subject of a declaration. 

53 Even if I am wrong in that conclusion, the most the Court could possibly do would be to set aside the assessment and order the University to remark the video assignment according to law. The University offered to do exactly this in March 2018, an offer that Mr Naik did not accept. I discuss the significance of that next, in considering the question of justice to both parties.

Fudged Professional Indemnity

In Psychology Board of Australia v Rigley (Review and Regulation) [2018] VCAT 1400 (11 September 2018) the Victorian Civil and Administrative Tribunal has considered the acknowledgment by a psychologist of engaging in professional misconduct in failing to have Professional Indemnity Insurance (PII) between March 2011 and March 2015, declaring in online registration that she did have that PII and providing a falsified PII certificate.

The outcome, along with a formal reprimand under section 196(2)(a) of the Heath Practitioner Regulation National Law (Victoria) Act 2009, is suspension of practice for three months.

 Ms Rigley is a psychologist, registered with the Psychology Board of Australia (Board). Between March 2011 and March 2015 she did not hold appropriate PII but  completed six online applications to renew her registration as a psychologist and declared that she had the appropriate PII at the relevant time. In the course of a random audit she provided a PII certificate  on which she altered the dates so that it purported to cover the period March 2014 to March 2015.

The  Board referred Rigley to VCAT to consider her conduct and decide what, if any, findings or determinations ought to be made about her professional registration. The allegations referred to the Tribunal concerned Ms Rigley’s failure to hold PII, falsely declaring in the renewals of her registration that she held PII and altering a PII certificate.

 By the time the matter came before VCAT for hearing, the parties had prepared an agreed statement of facts and agreed on proposed findings and determinations to be made under the Health Practitioner Regulation National Law (Victoria) Act 2009. Rigley sensibly did not deny any of the conduct described in the allegations, admitted the conduct amounted to professional misconduct and agreed she should be reprimanded for her conduct. She also agreed her registration as a psychologist be suspended for a period of three months and that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and the Australian Health Practitioner Regulation Agency (AHPRA), immediately after renewing her professional indemnity insurance coverage, for a five year period.

VCAT notes that Rigley was first registered as a psychologist on 21 July 2003. At all relevant times when practising as a psychologist she  was required to hold appropriate PII. Section 129(1) of the National Law provides that a registered health practitioner must not practise unless appropriate professional indemnity insurance arrangements are in force.

The  declarations made by Rigley as to her past compliance with PII standards and her intention to practise in compliance with them in future were false. On 8 July 2016, she received an Audit Notice from AHPRA notifying her of her selection for a random audit of compliance with the Board's registration standards. On 10 August 2016, Rigley submitted a completed audit checklist. At Part 8 of the checklist, she declared that she had practised in accordance with the requirements of the PII standards during the Audit Period. On 18 October 2016 she sent an email to AHPRA, in which she stated that she was not covered for a period of time during the Audit Period, specifically between December 2014 and April 2015. The following day she emailed, stating 'I have found a certificate of currency from March 2014 to March 2015 however when I scanned it was too light so I will have to forward that to you tomorrow'. On or about 20 October 2016, Rigley amended the PII Certificate of Currency for the period March 2016-2017 which she had already sent to AHPRA by altering the dates by hand so that it purported to cover her from 11 March 2014 to 11 March 2015. On 20 October 2016 she sent the falsified PII Certificate of Currency to AHPRA by email, asserting that she had been unable to find the certificate because it had been filed away during the period it was current.

Oops, on 24 October AHPRA responded by email noting that the dates on the certificate she had provided appeared to have been altered. She was asked to arrange for an original certificate to be emailed directly from the insurer. On 28 October Rigley advised 'it appears as though I was only insured from March 2009 – March 2011 and then March 2015 – March 2017. I honestly thought I was insured for those years in between and I know that I wrote over the numbers on a piece of paper that I found in my papers that was very faint and I thought was for the 2014 – 2015.'

VCAT comments that at the time she altered and sent the certificate she was aware that: the correct dates on the certificate she had altered were 2016 to 2017 and that the dates of 2014 and 2015 which she inserted were false; and that her assertion that she had found the document amongst her papers and altered it believing the dates to be accurate was also false.

VCAT goes on to comment

. The National Law defines ‘professional misconduct’[1], in the context of a registered health practitioner, as including: 

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. 

The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law. 

Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven. The Tribunal’s primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences – the latter is known as general deterrence.

Further

 We were satisfied that the conduct that formed the basis for all three allegations amounted to professional misconduct within paragraph (a) of the definition of that term, because it was substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience. 

The honesty and reliability of health practitioners is essential to ensuring that clients receive proper care and that patients and other practitioners may place trust in the expertise of those providing health care. It also impacts on the trust that the public places in psychologists and may have an impact on the willingness of persons to seek out appropriate and necessary treatments, or to recommend them to others in need. It is also essential when practitioners are dealing with the Board and other regulatory agencies – those bodies rely on practitioners honestly providing information which is important to decisions regarding registration and other matters. Making false declarations and falsifying documents in the course of professional registration and deliberately attempting to mislead APHRA and the Board is substantially below the standard reasonably to be expected of a registered health practitioner of an equivalent level of training or experience to Ms Rigley. Further the public should be confident that practitioners have the appropriate PII and they will be able to have recourse to that PII if something goes amiss. Clients of psychologists are often in an especially vulnerable state when they attend for treatment, and therefore knowledge of this recourse may be important in providing them with confidence in the profession.

VCAT notes that

The Tribunal also had regard to Ms Rigley’s personal circumstances. In her evidence to the Tribunal she described some protracted and distressing family court proceedings that she was involved in between 2011 and 2015 regarding her son who is now aged nine years. In her evidence she described being stressed and anxious during this time. It appears that Ms Rigley was overwhelmed by what was happening in her personal life to the detriment of her professional obligations. These court proceedings also created financial difficulties for her, Ms Rigley had to sell her home to pay back her parents who had been funding the legal proceedings. 

We had the opportunity of observing Ms Rigley in the witness box. It was apparent to us that this has been a very distressing and salutary experience for her. Ms Rigley was remorseful and understood the gravity of her conduct and described the effect that it could have on her patients. She showed insight into her conduct. She was aware that her conduct could bring the reputation of the profession into question. She noted that the three months suspension would affect her clients and would also impact on her financially. 

We were satisfied that the period of suspension is meaningful without being punitive. Being unable to practice one’s profession for that period has personal, financial and reputational consequences. Those are relevant to general deterrence and the maintenance of the standard and reputation of the profession. It sent a clear message to Ms Rigley that her conduct was unacceptable and would also serve as a deterrent to other psychologists. 

We regarded the condition that it was proposed to impose on Ms Rigley’s registration as appropriate given the nature of her conduct and so ordered that upon resumption of her practice a condition be imposed on her registration requiring her to provide a certificate of currency in respect of appropriate PII coverage to the Board and AHPRA, immediately after renewing her professional indemnity insurance coverage, for a five year period. Although we assessed that the degree of ongoing risk posed by Ms Rigley was low, it will ensure that for the next five years she holds the appropriate PII. 

We were also satisfied that the period of suspension and subsequent conditions would assist to maintain proper ethical and professional standards to protect the public and to protect the stature and integrity of the profession.

Data Exclusivity

'The Drug Debate: Data Exclusivity is the New Way to Delay Generics' by Srividhya Ragavan in (2018) 50(2) Connecticut Law Review Online comments

The article discusses the protection regime for clinical trial data internationally and outlines the applicable protection regime. In doing so, this article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data. Such protection operates at a regulatory level to delay the entry of generic medications. Internationally, the data exclusivity regime, which has become an important contemporary tool in trade negotiations with poorer nations, works to detrimentally affect access to medication.

AI and Human Rights

Governing Artificial Intelligence: Upholding Human Rights and Dignity by Mark Latonero comments

Can international human rights help guide and govern artificial intelligence (AI)?Currently, much of society is uncertain about the real human impacts of AI systems. Amid hopes that AI can bring forth “global good” there is evidence that some AI systems are already violating fundamental rights and freedoms. As stakeholders look for a North Star to guide AI development, we can rely on human rights to help chart the course ahead. International human rights are a powerful tool for identifying, preventing, and redressing an important class of risks and harms. A human rights-based frame could provide those developing AI with the aspirational, normative, and legal guidance to uphold human dignity and the inherent worth of every individual regardless of country or jurisdiction. Simply put:

In order for AI to benefit the common good, at the very least its design and deployment should avoid harms to fundamental human values. International human rights provide a robust and global formulation of those values. 

This report is intended as a resource for anyone working in the field of AI and governance. It is also intended for those in the human rights field, outlining why they should be concerned about the present-day impacts of AI. What follows translates between these fields by reframing the societal impact of AI systems through the lens of human rights. As a starting point, we focus on five initial examples of human rights areas – nondiscrimination, equality, political participation, privacy, and freedom of expression – and demonstrate how each one is implicated in a number of recent controversies generated as a result of AI-related systems. Despite these well-publicized examples of rights harms, some progress is already underway. Anticipating negative impacts to persons with disabilities, for example, can lead designers to build AI systems that protect and promote their rights. 

This primer provides a snapshot of stakeholder engagement at the intersection of AI and human rights. While some companies in the private sector have scrambled to react in the face of criticism, others are proactively assessing the human rights impact of their AI products. In addition, the sectors of government, intergovernmental organizations, civil society, and academia have had their own nascent developments. There may be some momentum for adopting a human rights approach for AI among large tech companies and civil society organizations. To date, there are only a few, albeit significant, number of examples at the United Nations (UN), in government, and academia that bring human rights to the center of AI governance debates. 

Human rights cannot address all the present and unforeseen concerns pertaining to AI. Near-term work in this area should focus on how a human rights approach could be practically implemented through policy, practice, and organizational change. Further to this goal, this report offers some initial recommendations:

• Technology companies should find effective channels of communication with local civil society groups and researchers, particularly in geographic areas where human rights concerns are high, in order to identify and respond to risks related to AI deployments. 

• Technology companies and researchers should conduct Human Rights Impact Assessments (HRIAs) through the life cycle of their AI systems. Researchers should reevaluate HRIA methodology for AI, particularly in light of new developments in algorithmic impact assessments. Toolkits should be developed to assess specific industry needs. 

• Governments should acknowledge their human rights obligations and incorporate a duty to protect fundamental rights in national AI policies, guidelines, and possible regulations. Governments can play a more active role in multilateral institutions, like the UN, to advocate for AI development that respects human rights. 

• Since human rights principles were not written as technical specifications, human rights lawyers, policy makers, social scientists, computer scientists, and engineers should work together to operationalize human rights into business models, workflows, and product design. 

• Academics should further examine the value, limitations, and interactions between human rights law and human dignity approaches, humanitarian law, and ethics in relation to emerging AI technologies. Human rights and legal scholars should work with other stakeholders on the tradeoffs between rights when faced with specific AI risks and harms. Social science researchers should empirically investigate the on-the-ground impact of AI on human rights. 

• UN human rights investigators and special rapporteurs should continue researching and publicizing the human rights impacts resulting from AI systems. UN officials and participating governments should evaluate whether existing UN mechanisms for international rights monitoring, accountability, and redress are adequate to respond to AI and other rapidly emerging technologies. UN leadership should also assume a central role in international technology debates by promoting shared global values based on fundamental rights and human dignity.

Survivor Fraud

Yet another survivor fraud, with Kelly Val Smith pleading guilty in Adelaide District Court to four counts of deception and one count of dishonestly dealing with documents between June 2012 and February 2015. She has been been jailed for at least two years.

Smith obtained over $200,000 through false claims to her family and associates, including that she needed money for treatment of ovarian cancer and cancer of the lymph nodes, as well as for her son to undergo an urgent operation for a heart condition. She also claimed her bank account had been hacked and her accounts frozen pending the outcome of an investigation by ASIC. She claimed that she would repay her victims with money she was expecting to receive from a victim's of crime payout of more than $1 million, purportedly compensation for psychological issues Smith suffered from being a witness to an armed robbery.

The ABC reports that Evans CJ said a psychiatric assessment of Smith found she became "Walter Mitty-ish" in a naive and foolish attempt to be liked and accepted.

 Your offending was elaborate and yet unsophisticated and was persistent over a long period of timeYou lied for your own financial advantage and also in attempt to be liked and accepted. "You created a fanciful world that gave you empowerment, however you were unable to control it. Your actions did not reflect any level of sophistication that would be characteristic of typical fraudulent behaviour. ... Your victims suffered significant financial losses — these losses resulted from some of them lending money to you, some purchasing property based on your promises to provide gifts that would cover the purchase

Three of Smith's childhood friends and her stepmother-in-law were each conned out of between $12,000 and $100,000 .

The ABC reports  that during a pre-sentencing hearing, Smith read a letter of apology to the court and her victims. Evans CJ said he struggled to accept that she was genuinely remorseful given the lateness of her guilty pleas, the lack of any prior apology or show of remorse and her failure to explain what she had down with the money.

Protective Security Framework Report

The Attorney-General's unsurprisingly terse and decidedly unannounced  Protective Security Policy Framework 2016-17 Compliance Report states

Effective protective security is essential to the secure delivery of government business. 

Security arrangements support government entities to identify threats and manage risks that have the potential to:

• harm staff or the public 

• compromise official information or assets, or 

• interrupt progress toward meeting government policy objectives.

The Protective Security Policy Framework (PSPF) is administered by the Attorney-General’s Department (AGD). It mandates 36 security requirements as detailed at Attachment A. 

The PSPF applies to non-corporate Commonwealth entities (NCCEs) subject to the Public Governance, Performance and Accountability Act 2013 in 2016–17. For corporate Commonwealth entities and wholly-owned Commonwealth companies (CCEs), the PSPF represents better practice. 

Entities are required to undertake an annual selfassessment of their PSPF compliance, then report on their security posture and measures taken to address identified key risks. 

Entity reporting 

All NCCEs submitted a PSPF compliance report for 2016–17; this is an improvement from 2015–16 where two NCCEs failed to report. In addition, five CCEs reported voluntarily (down from 12 in 2015 16) 

Key findings 

PSPF compliance 

While few (34.4%, 32 entities) NCCEs are fully compliant with all of the PSPF, the government’s security posture is still broadly sound. On average, NCCEs fully comply with a significant proportion of requirements (91.2%, 33 out of 36 – shown as “2016–17 PSPF compliance average” in Figures 3, 4 and 5). 

Key risk areas 

NCCEs continue to face challenges in achieving the PSPF’s information security requirements. Of note, only 60.2% of NCCEs reported full compliance with the INFOSEC 4 requirement. ... 

Security governance 

Compliance with PSPF governance requirements was high and remained relatively stable. On average, entities complied with 11.9 of the 13 governance requirements in 2015–16, increasing marginally to compliance with 12 requirements in 2016–17. ... 

Information security 

Information security is dynamic with challenges posed by continuous technological advancement. Information security arrangements are an important element of an entity’s effective protective security regime. 

Compliance with information security requirements has been an area of ongoing concern. Despite increased awareness of cyber security risks, and a concerted effort over the year to promote risk mitigation measures,1 entity compliance with information security requirements did not see significant change. In 2016–17, average compliance remained stable at 6.0 out of 7 requirements. 

Physical security 

NCCEs continued to report high-level compliance against the PSPF’s physical security requirements. On average NCCEs complied with 6.5 out of 7 requirements, broadly in line with the 2015–16 compliance rate of 6.6. 

Of particular note:

• all entities reported full compliance with the PHYSEC 4 requirement to ensure that physical security measures do not breach relevant employer occupational health and safety obligations, and 

• almost all entities reported full compliance with the PHYSEC 5 requirement to show a duty of care for the physical safety of members of the public interacting directly with the Australian Government.

A 5.4 percentage point decline in compliance with the PHYSEC 7 requirement was recorded such that ten NCCEs reported they did not have up-to-date plans and/or procedures in place to respond to heightened security levels in case of an emergency or increased threat. Most of these entities reported they expect this matter to be resolved in 2017–18. 

Personnel security 

In 2016–17, AGD led outreach activities on security culture and managing the ongoing suitability of personnel. 

In line with this, there was a significant (5.4 percentage point) improvement in entities reporting full compliance with the PERSEC2 requirement over the year. Reported compliance has increased from 78.5% of NCCEs in 2014–15 (82.8% in 2015–16) to 88.2% in 2016–17 

Compliance against other personnel security requirements did not see significant change. Average compliance remained stable at 8.3 out of 9 personnel security requirements. 

Personnel security waivers 

Access to classified resources is subject to personnel successfully undergoing a vetting process and holding a valid security clearance. Where clearance requirements are waived, government faces increased malicious insider risks (and may be more vulnerable to exploitation from organised crime and interference from foreign governments). There are two types of waivers: waivers of the Australian citizenship requirement, and waivers of the checkable background requirement. 

Waivers of the Australian citizenship requirement 

In 2016–17, there were 317 Australian Government security clearance holders who were not Australian citizens. Nonetheless, clearances with a citizenship waiver still make up less than 0.2% of the 200,000+ (as at August 2017) active clearances. Across government, citizenship waivers at the NV1 level saw the greatest increase over the year (47 in 2015–16, compared with 175 in 2016–17). 

Waivers of checkable background requirement 

Assurance about a person’s background gives confidence that they can be trusted to protect government information and resources. A person is considered to have an uncheckable background where more than 12 months (cumulative) of the security clearance background checking period cannot be verified. 

In 2016–17, there were 216 people with a security clearance whose background could not be adequately checked. Clearances with checkable background waivers represent only 0.1% of all active clearances. 

Historically, checkable background waivers have most commonly been for clearances at the Positive Vetting (PV) level. This reflects more onerous PV background checking expectations. 

In 2016–17 there were 130 additional NV1 checkable background waivers (from 7 in 2015–16, up to 137). The sizeable increases in checkable background waivers are attributable to a single entity. ... 

CCE compliance summary 

Five CCEs submitted a PSPF compliance report in 2016–17 (down from 12 in 2015–16). Noting the very small sample size, significant variations in year-to-year reported compliance can be expected. 

Two CCEs (40%) claimed full compliance with all 36 mandatory requirements, above the NCCE average of 35.5% (33 entities) but well below the 58% of CCEs (7 of 12) reporting full compliance in 2015–16. 

On average, CCEs reported full compliance with 35 of the 36 mandatory requirements; this is a slight improvement from the 34.4 compliance average reported in 2015–16 (and above the 32.8 NCCE average). 

CCEs reported: 

• full compliance with all PERSEC requirements. There was one citizenship waiver, held at the Baseline level, across all five entities 

• full compliance with all PHYSEC mandatory requirements (an increase from 6.9 of 7 requirements in 2015–16) 

• high rates of compliance with GOVSEC mandatory requirements. On average, CCEs complied with 12.4 of 13 requirements (95.4%) in both 2015-16 and 2016–17 (slightly above NCCE average of 12), and 

• like NCCEs, compliance was lowest in relation to INFOSEC requirements. CCEs reported compliance with 6.6 of 7 requirements in 2016–17 (94.3%), compared to 6.7 out of 7 in 2015–16.

National Identity Management

Blink and you'll miss it, as the Department of Home Affairs under Peter Dutton undertakes a review of national arrangements for the protection and management of identity information.

The Terms of Reference for the  Review are -

The Review will consider ways to enhance or strengthen arrangements for the protection, use and management of identity information in Australia.

The Review will be led by an independent eminent person or persons [Roger Wilkins, former Secretary of the Attorney-General's Department, and Professor David Lacey], supported by the Department of Home Affairs and other relevant Australian Government agencies.

Objectives

The Review has been commissioned to determine ways to enhance or strengthen arrangements that support and govern the protection and management of identity information in order to: better protect Australians from the theft or misuse of their identity information, and assist people to minimise and recover from the impacts identity crime should they become victims provide better targeted (that is, more convenient, tailored, efficient and effective) government services to individuals and business achieve these objectives in ways that respect and promote peoples' privacy.

Scope

The Review will focus primarily, but not necessarily exclusively, on arrangements for issuing, using and managing an individual's documents, credentials and their related identity information that are most commonly relied upon as evidence of a person's identity by government and key sectors of the economy.

The Review will focus on the identities of individuals and will not examine in any detailed arrangements for managing the identities of businesses, organisations or other legal entities.

The Review will identify and analyse the key enablers, obstacles and risks associated with national arrangements for the protection and management of identity information, including consideration of:

• legislative frameworks 

• practices and systems for the collection, use, sharing of identity information 

• coordination amongst government agencies, and between government and other entities.

The Review will be informed by consultations with:

• Commonwealth agencies, including through the Commonwealth Trusted Identities Committee 

• states and territories, including through the National Identity Security Coordination Group 

• key non-government stakeholders.

The Review will identify opportunities and options for short, medium and longer term reforms to enhance or strengthen the protection and management of identity information in Australia to meet the objectives of the Review; and which could provide the basis for a future iteration of the National Identity Security Strategy that could be considered by the Council of Australian Governments.

The Review will report by the end of November 2018.

Aged Care Royal Commission

The terms of Reference for the Aged Care Royal Commission (headed by the Honourable Justice Joseph McGrath) are

RECOGNISING the contribution of older Australians to society, and that older Australians deserve high quality care in a safe environment that protects their wellbeing and dignity. 

AND the importance of building a national culture of respect for ageing and older persons. · 

AND that Australia's population is ageing and the proportion and number of people accessing and ne~ding care is increasing. 

AND the many positive examples of high quality care within the Australian aged care sector which engages thousands of dedicated people providing aged care services every day, complemented by the important contribution of families and volunteers. 

AND that as a community all Australians expect high standards of quality and safety from our aged care services, and it is important that the Australian Government has the best regulatory and policy framework to provide a sustainable aged care system that meets the needs of older Australians in the future. 

AND that it is important that frail, older people needing care should receive services that reflect and address their care needs. 

AND that the Commonwealth provides funding to, and regulates, providers of aged care services. . 

AND that some people residing in aged care facilities, including younger people, or otherwise receiving aged care services, have disabilities and Australia has undertaken relevant international obligations, including to take all appropriate legislative, administrative and other measures for the implementation of the rights of people with disabilities. 

NOW THEREFORE We do, by Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and under the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and every other enabling power, appoint you to be a Commission of inquiry, and require and authorise you, to inquire into the following matters:

(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response; 

(b) how best to deliver aged care services to: (i) people with disabilities residing in aged care facilities, including younger people; and (ii) the increasing number of Australians living with dementia, having regard to the importance of dementia care for the future of aged care services; 

(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including: (i) in the context of changing demographics and preferences, in particular people's desire to remain living at home as they age; and (ii) in remote, rural and regional Australia; 

(d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe; 

(e) how to ensure that aged care services are person-centred, including through allowing people to exercise greater choice, control and independence in relation to their care, and improving engagement with families and carers on care-related matters; 

(f) how best to deliver aged care services in a sustainable way, including through innovative models of care, increased use of technology, and investment in the aged care workforce and capital infrastructure; 

(g) any matter reasonably incidental to a matter referred to in paragraphs (a) to (f) or that you believe is reasonably relevant to the inquiry. 

AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters: 

(h) all forms of Commonwealth-funded aged care services, whatever the setting or environment in which those services are delivered; 

(i) all aspects of the quality and safety of aged care services, including but not limited to the following: (i) dignity; (ii) choice and control; (iii) clinical care; (iv) medication management; (v) mental health; (vi) personal care; (vii) nutrition; (viii) positive behaviour supportsto reduce or eliminate the use of restrictive practices; (ix) end of life care; (x) systems to ensure that high quality care is delivered, such as governance arrangements and management support systems; 

(j) the critical role of the aged care workforce in delivering high quality, safe, person-centred care, and the need for close partnerships with families, carers and others providing care and support; 

(k) the wide diversity of older Australians and the barriers they face in' accessing and receiving high quality aged care services. This should take into account the increasing incidence of chronic and complex conditions; 

(1) the interface with other services accessed by people receiving aged care services, including primary health care services, acute care and disability services, and relevant regulatory systems. This should take into account how people transition from other care environments or between aged care settings; · 

(m) examples of good practice and innovative models in delivering aged care services; 

(n) the findings and recommendations of previous relevant reports and inquiries. 

AND We further declare that you are not required by these Our Letters Patent· to inquire, or to continue to inquire, into a particular matter to the extent that you are satisfied that the matter has been, is being, or will be, sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding. 

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiryand recommendations, to consider the following matters, and We authorise you, as you consider appropriate, to take (or refrain from taking) any action arising out of your consideration: 

(o) the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law, including, for example, for the purpose of enabling the timely investigation and prosecution of offences; 

(p) the need to ensure that evidence that may be received by you that identifies particular individuals as having been subject to inappropriate treatment is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries; 

(q) the need to establish appropriate arrangements in relation to current and previous inquiries, in Australia and elsewhere, for evidence and information to be shared with you in ways consistent with relevant obligations so that the work of those inquiries, including, with any necessary consents, the testimony of witnesses, can be taken into account by you in a way that avoids unnecessary duplication, improves efficiency and avoids unnecessary trauma to witnesses; 

(r) the need to establish, as you see fit and having regard to the date by which. you are required to submit your final report, appropriate arrangements for evidence and information to be shared with you by people about their experiences, including people receiving aged care services, their families, carers and others who provide · care and support, recognising that some people will need special support to share their experiences.  ...

AND We declare that, in exercising your powers under Part 2 of the Royal Commissions Act 1902, you are to inquire into the matters falling within the scope of paragraphs (a) to (g) only to the extent that Commonwealth constitutional power extends to those subjects of inquiry. 

AND We declare that you are a Royal Commission to which item 5 of the table in subsection 355-70(1) in Schedule 1 to the Taxation Administration Act 1953 applies. 

AND We declare that in these Our Letters Patent:  aged care services means services provided by any of the following: · (a) approved providers within the meaning of the Aged Care Act 1997; (b) entities to which a grant is payable under Chapter 5 of the Aged Care Act 1997; (c) entities to which funding is payable under a program relating to aged care specified in Schedule lAA or lAB to the Financial Framework (Supplementary Powers) Regulations 1997; (d) entities that receive funding for the purposes of the Veterans' Home Care Program established under the Veterans' Entitlements Act 1986.

The Commission is  to submit  an interim report  not later than 31 October 2019 (ie safely after the election)  and a final report   not later than 30 April 2020

Gayed

The Civil and Administrative Tribunal of New South Wales has published its reasons for judgment in the matter of Health Care Complaints Commission v Gayed [2018] NSWCATOD 165, ahead of the findings by the Furness Inquiry.

Earlier this year the Secretary of NSW Health - under the Health Services Act 1997 (NSW) s 122 - appointed Gail Furness SC to conduct an inquiry. The NSW Medical Council separately appointed Ms Furness to undertake a review of the management by the Council of complaints about Gayed.​

The Tribunal's decision is

1. The respondent practitioner is guilty of professional misconduct.   

2. If the respondent practitioner were registered as a medical practitioner the Tribunal would have cancelled his registration.   

3. The respondent practitioner is disqualified from being registered as a health practitioner for three years from today.   

4. The National Board is required to record the fact that the Tribunal has cancelled the practitioner’s registration in the National Registry kept by the Board. 

5. Publication or broadcast without the leave of the Tribunal of the name or other identifying information in respect of any patient referred to in the proceedings is prohibited.   

6. The respondent practitioner must pay the applicant’s costs of or incidental to these proceedings as agreed, or as assessed.

The Tribunal states (at paras 37 to 73) that

The practitioner graduated with a Bachelor of Medicine and a Bachelor of Surgery in Egypt in 1976.

In 1993 he became a Fellow of the Royal Australia and New Zealand College of Obstetricians and Gynaecologists. He was first registered in New South Wales as a medical practitioner in 1994. He was registered as a “conditional specialist”.

In July 1997 the Health Care Complaints Commission received a complaint by a patient alleging that she had consented for a laparoscopy but the practitioner had performed a laparotomy.

In October 1997 there was a further complaint to the Health Care Complaints Commission that the patient’s bowel, ilium and uterus were perforated by the practitioner in a number of places ranging from 1cm to 5cm perforations. The complaint was dealt with by a Professional Standards Committee. He was reprimanded and ordered to undergo a performance assessment. It recommended informal counselling about some aspects of his practice.

In December 1998 there was another complaint from a patient of the practitioner who after surgery had needed to have further surgery to stop bleeding from an unknown source.

On 8 October 1998 the Health Care Complaints Commission received a complaint from Southern Area Health Service advising that a number of incidents had given rise to concerns about the practitioner’s practice and led to his suspension from the Area Health Service. The allegations made were breaches of protocols for infection control and universal precautions, adequacy of patient’s consents, alteration of a medical record, clinical competence, possible visual impairment and communication issues. These were all investigated and the matter was referred to a Professional Standards Committee. The Southern Area Health Service suspended the practitioner’s visiting rights. The issues that gave rise to that suspension were about breaches of protocols including inadequacy of a patient consent.

On 15 December 1998 the Health Care Complaints Commission received a complaint from Cooma Health Service concerning care provided by the practitioner to two patients. One of those patients alleged that after the practitioner had performed a hysterectomy, she needed further surgery to stop the bleeding from an unknown source. There was an investigation and ultimately no further action.

On 23 December 1998 a patient complained to the Health Care Complaints Commission that she had suffered from incontinence since the practitioner had performed a D&C on her in August 1997. It was referred to the Professional Standards Committee.

The other patient to whom the Cooma complaint applied lodged a complaint in February 1999 saying that she had suffered ongoing problems with her health after she developed “bleeding in my stomach” requiring a laparoscopy, hysteroscopy and D andC performed by the practitioner. This was investigated but ultimately no further action was taken. In April 2000 there was a complaint received from a patient alleging that she had required further surgery because she developed internal bleeding after surgery performed by the practitioner and also alleged that during a third operation later, it was found that the practitioner had stitched a section of her bowel to one of her ovaries. That complaint was investigated but no further action was taken.

A patient made a complaint to the Commission in May 2000 alleging that intercourse became painful after the practitioner performed a vaginal prolapse repair, that further surgery he performed failed to fix the problem, and subsequent surgery performed by another gynaecologist did. This complaint was referred to the Professional Standards Committee. There was a Professional Standards enquiry on 20 - 28 August 2001. The Committee considered nine complaints to the Health Care Complaints Commission. He was found to be guilty of unsatisfactory professional conduct and to be an impaired practitioner owing to his vision problems. Conditions were imposed on his registration including limiting the types of surgical procedures he could undertake.

A Performance Assessment was conducted on 13 September 2004.

Among the orders made by the Professional Standards Committee was that the practitioner not undertake microsurgery and be periodically assessed by an ophthalmologist. It was also recommended that performance assessment be undertaken.

On 30 September 2003 North Sydney Area Health Service temporarily suspended the practitioner’s VMO appointment because of a “cluster of seemingly adverse patient events”. It was then decided there be a performance assessment.

On 4 March 2004 there was a complaint to the HCCC by a patient alleging that when it appeared that she had gone into labour at 22 weeks pregnant with twins, the practitioner refused to transfer her from the regional hospital to another hospital with facilities to care for very premature babies, and that the babies were left to die when they were born at 23 weeks. There was an investigation and ultimately no further action.

On 13 September 2004 there was a performance assessment of the practitioner and his professional performance was found to be “at the standard reasonably expected of a practitioner of an equivalent level of training or experience”. The assessors recommended informal counselling of the practitioner about aspects of his practice which could be improved. That formal counselling occurred on 1 November 2005.

The Medical Tribunal conducted a review of the conditions of the practitioner’s registration on 30 March 2006 and the conditions imposed in 2001 were removed. The NSW Medical Board received notice on 16 March 2007 concerning a number of clinical incidents involving the practitioner and also notice that, by mutual agreement, the practitioner had resigned his appointment at Mona Vale Hospital. A further performance assessment was planned.

The Chair of the Medical Advisory Committee at Delmar Private Hospital notified the Health Care Complaints Commission on 26 March 2007 that the practitioner’s clinical privileges had been temporarily suspended because of concerns about the care provided to three patients. The Board requested that the practitioner be assessed for impairment. The matter was referred to a performance committee.

The practitioner in 2007 resigned from his appointment at Mona Vale Hospital because of clinical incidents and complaints.

On 28 May 2007 the Medical Board received a complaint from a patient alleging that the practitioner perforated her bowel during a laparoscopy and then failed to recognise the complication. This was referred for performance assessment.

On 25 October 2007 there was another performance assessment. The practitioner’s professional performance was found to be unsatisfactory in the areas of basic clinical skills (interviewing/examination), clinical judgment, patient management skills (treatment advice) and practical/technical skills.

On 23 April 2008 there was a Performance Review Panel hearing. The practitioner’s professional performance was found to be unsatisfactory. Conditions were imposed in limiting the surgery that he could perform and requiring him to have a mentor. Re-assessment no sooner than six months’ time was ordered.

On 6 July 2009 Patient G, who was one of the patients to whom the complaints in these proceedings relate complained to the Medical Board about a laparoscopy performed by the practitioner on her for endometriosis. She noted that he was not permitted to perform laparoscopies for moderate to severe endometriosis and queried why he was permitted to perform the surgery when he did not know what degree of endometriosis she had ahead of the surgery. The matter was referred to the Medical Board but no action was taken.

The Performance Committee of the Medical Board on 25 August 2009 decided that the mentorship condition on the practitioner’s registration be removed.

On 24 May 2010 there was a complaint to the HCCC by a patient alleging that the practitioner failed to give her appropriate information about after-care following surgery he performed and that a large swab was left in her vagina, possibly causing an infection. It appears that the patient discontinued dealing with the Commission.

On 8 July 2011 there was a complaint to the Health Care Complaints Commission by a patient alleging that the practitioner did not obtain an informed consent from her before removing three-quarters of her cervix. She had consented to a laparoscopy and the practitioner had performed a laparotomy. There was also an issue that she required further surgery to remove an incorrectly placed stitch around the urethra. The matter was later referred to the Professional Standards Committee.

On 10 October 2013 the practitioner underwent a Performance Re-Assessment Review and his performance was found to be unsatisfactory in the areas of basic clinical skills (interview/examination), clinical judgment, practical/technical skills and interaction/communication with patients. The recommendation was that there be a Performance Review Panel hearing and regular ophthalmological assessment.

On 12 November 2013 there was a complaint to the Health Care Complaints Commission from a patient alleging that the practitioner had used non-dissolvable stitches following her Caesarean section but did not tell her of this, with the result that she required surgery one year later to remove the stitches.

On 16 October 2014 there was a second Performance Review Panel hearing. The finding of the hearing was that the practitioner’s professional performance was of the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Panel considered that continuation of his existing conditions would be prudent, with variation to one condition.

On 27 January 2015 the Performance Committee considered the Panel’s report and resolved to vary Condition 2 on the practitioner’s registration to clarify the nature of the surgery that he is not permitted to perform.

On 5 March 2015 the HCCC received a complaint from a patient alleging that she developed a hernia at the site at which the practitioner performed a laparotomy, requiring further surgery. On 18 November 2015 there was a complaint by the patient who had made a complaint to the Medical Board on 6 July 2009 alleging that she suffered serious complications after the practitioner did not recognise that he had severed a ureter during surgery performed to treat her endometriosis.

On 3 December 2015 the HCCC received a complaint from a patient alleging that the practitioner had provided inappropriate treatment for retained placenta following the birth of her child. On 26 February 2016 there was a complaint received by the HCCC alleging that the practitioner performed a laparotomy on her in breach of his conditions.

On 4 March 2016 there was a notification from the Hunter New England Local Health District that the practitioner had been suspended from his duties at the regional hospital owing to concerns about the care he had provided to six patients. Those matters were being investigated by the HCCC.

EU Consumer Data Protection and the CDR

The EU Data Protection Supervisor has released an Opinion on data protection aspects of the EU 'A New Deal for Consumers' legislative package. That package is composed of the Proposal for a Directive as regards better enforcement and modernisation of EU consumer protection rules and the Proposal for a Directive on representative actions for the protection of the collective interests of consumers.

EDPS Opinion 8/2018 on the legislative package “A New Deal for Consumers”  notes that

 The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 41(2) of Regulation 45/2001 ‘With respect to the processing of personal data... for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to privacy, are respected by the Community institutions and bodies’, and ‘...for advising Community institutions and bodies and data subjects on all matters concerning the processing of personal data’. Under Article 28(2) of Regulation 45/2001, the Commission is required, ‘when adopting a legislative Proposal relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data...’, to consult the EDPS.

He was appointed in December 2014 together with the Assistant Supervisor with the specific remit of being constructive and proactive. The EDPS published in March 2015 a five-year strategy setting out how he intends to implement this remit, and to be accountable for doing so. This Opinion relates to the EDPS' mission to advise the EU institutions on the data protection implications of their policies and foster accountable policymaking - in line with Action 9 of the EDPS Strategy: 'Facilitating responsible and informed policymaking'. The EDPS considers that compliance with data protection requirements will be key to the success of EU consumer protection law in the Digital Single Market.

This Opinion outlines the position of the EDPS on the legislative package entitled: “A New Deal for Consumers” that is composed of the Proposal for a Directive as regards better enforcement and modernisation of EU consumer protection rules and the Proposal for a Directive on representative actions for the protection of the collective interests of consumers.

The EDPS welcomes the intention of the Commission to modernise existing rules in an area whose goals are closely aligned to those of the recently modernised data protection framework. He recognises the need to fill the gaps in the current consumer acquis in order to respond to the challenge presented by predominant business models for digital services which rely on massive collection and monetisation of personal data and on the manipulation of people’s attention through targeted content. This is a unique opportunity to improve consumer law to redress the growing imbalance and unfairness between individuals and powerful companies in digital markets.

In particular, the EDPS supports the aim to extend the scope of Directive 2011/83/EU in order to allow the consumers, who receive services not rendered against a monetary price, to benefit from the protection framework offered by this Directive, as this reflects today’s economic reality and needs.

The Proposal took into account the recommendations of the EDPS Opinion 4/2017 and refrains from using the term “counter-performance” or distinguishing between data “actively” or “passively” provided by consumers to suppliers of digital content. However, the EDPS notes with concern that the new definitions envisaged by the Proposal would introduce the concept of contracts for the supply of a digital content or digital service for which consumers can “pay” with their personal data, instead of paying with money. This new approach does not solve the problems caused by using the term “counter-performance” or by making an analogy between the provision of personal data and the payment of a price. In particular, this approach does not sufficiently take into consideration the fundamental rights nature of data protection by considering personal data as a mere economic asset.

The GDPR already laid down a balance regarding the circumstances under which the processing of personal data may take place in the digital environment. The Proposal should avoid promoting approaches that could be interpreted in a way inconsistent with the EU commitment to fully protect personal data as laid down in the GDPR. To provide broad consumer protection without risking to undermine the principles of data protection law, an alternative approach could be envisaged, such as based on the broad definition of a “service” from the e-commerce Directive, the provision defining the territorial scope of the GDPR or Article 3(1) of the Council General Approach on the Digital Content Proposal. The EDPS therefore recommends refraining from any reference to personal data in the definitions of the “contract for the supply of digital content which is not supplied on tangible medium” and the “digital service contract” and suggests to rely instead on a concept of a contract under which a trader supplies or undertakes to supply specific digital content or a digital service to the consumer “irrespective of whether a payment of the consumer is required”.

Furthermore, the EDPS draws attention to several potential interferences of the Proposal with the application of the EU data protection framework, in particular with the GDPR and provides recommendations.

First of all, the EDPS stresses that the processing of the personal data can only be done by the traders in accordance with the EU data protection framework, in particular the GDPR.

Second, the EDPS is concerned that if the concept of “contracts for the supply of a digital content or digital service for which consumers provide their personal data, instead of paying with money” were introduced by the Proposal, it could mislead service providers who would be led to believing that the processing of data based on consent in the context of a contract is legally compliant in all cases, even where the conditions for valid consent set out in the GDPR are not fulfilled. This would undermine legal certainty.

Third, the complex interplay between the right of withdrawal from the contract and the withdrawal of the consent for processing of personal data, as well as the obligation of the trader to reimburse the consumer in the event of withdrawal demonstrates the difficulties of reconciling the concept of “contracts for the supply of a digital content or digital service for which consumers provide their personal data, instead of paying with money” introduced by the Proposal with the fundamental right nature of personal data and the GDPR.

Also, the EDPS considers that the Proposal should amend Article 3 of Directive 2011/83/EU and introduce a provision that clearly states that in case of a conflict between the Directive 2011/83/EU and the data protection legal framework, the latter prevails.

Furthermore, the EDPS also welcomes the new Proposal on collective redress, which intends to facilitate redress for consumers where many consumers are victims of the same infringement, in a so-called mass harm situation. The EDPS assumes that the redress mechanism envisaged in the Proposal on collective redress aims to be complementary to the one in Article 80 of the GDPR on representation of data subjects.

Nevertheless, to the extent personal data protection-related matters would be included in the scope of the collective action under the Proposal, the EDPS considers that “the qualified entities” that will be able to bring the representative actions in this field under the Proposal should be subject to the same conditions as set out in Article 80 GDPR.

Along the same lines, the Proposal on collective redress should clarify that the representative actions regarding data protection issues can only be brought before administrative authorities that are the data protection supervisory authority within the meaning of Articles 4(21) and 51 GDPR.

In conclusion, the EDPS considers that the application of two different mechanisms on collective redress, to the GDPR and to the future e-Privacy Regulation, alongside other substantive points of interaction between consumer and data protection, requires more systematic cooperation between the consumer protection and data protection authorities that could be done, for instance, within the already existing voluntary network of the enforcement bodies from competition, consumer and data protection areas - the Digital Clearinghouse.

Finally, the EDPS welcomes the initiative to update the enforcement of consumer rules: the revision of the Consumer Protection Cooperation Regulation. In this context, the EDPS considers that it is important to further explore the synergies between the data protection and consumer law. The cooperation between the consumer protection and data protection authorities should become more systematic wherever specific issues that are of interest for both side arise, in which consumer welfare and data protection concerns appear to be at stake.

'The Proposed Australian Consumer Data Right: A European Comparison' by  Samson Esayas and Angela Daly in (2018) 3 European Competition and Regulatory Law Review comments

This article examines the new Australian consumer Comprehensive right to access and use data, also known as the Consumer Data Right, recently proposed by the Australian Productivity Commission, and adopts a comparative analysis with data protection, competition and consumer developments in the European Union (EU). Firstly, a brief overview is given of the legal context and relevant Big Data developments in Australia. Then, current EU developments, particularly the data portability right under the General Data Protection Regulation (GDPR), and recent proposals from the Commission aiming at fostering access and transfer of data including the data producer’s right to use and authorise the data and the portability of non-personal data for professional users are considered. This is followed by an explanation of the Australian Productivity Commission’s proposed Consumer Right to access and use data, before an analysis is conducted to understand the extent to which this proposed right accords with the European situation. Given the coming into force of the GDPR and its extraterritorial reach, and the EU-Australia Free Trade Agreement currently under negotiation, as well as the transnational reach of Big Data and Cloud services, standardisation across the two jurisdictions is desirable. In this regard, the article examines to what extent the recent initiatives contribute to such standardisation and their implications for the extent to which Australia’s legal framework for data may be considered ‘adequate’ by the EU.