Digital Assets

Another piece on postmortem dealing with digital assets. 'The ‘New’ New Property: Dealing with Digital Assets on Death' by Heather Conway and Sheena Grattan in Conway and Hickey (eds), Modern Studies in Property Law (Hart, 2017) 99-115 comments 

Over the years, the law of succession has not been immune to the challenges posed by changing circumstances, whether social, economic or familial. In 1981, Professor Mary Ann Glendon published The New Family and the New Property, chronicling, inter alia, the move away from traditional property and family forms. Three years later, Professor John Langbein’s seminal article entitled ‘The Nonprobate Revolution and the Future of the Law of Succession’ highlighted the challenges posed to traditional succession law rules by alternative wealth forms such as insurance and life policies, joint assets, and pensions. More than three decades later, succession law continues to grapple with both changing family structures and the issues posed by so-called ‘will-substitutes’. However, it now faces another ‘New Property Probate Revolution’: the legal challenges generated by the so-called ‘digital footprint’ that virtually every citizen (old and young) leaves behind on death. 

As the time of writing, the latest available statistics suggest that almost 3.5 billion people worldwide (around 46% of the global population) are internet users. With the advent of the digital age, we spend increasing amounts of our time in the virtual world - creating not only an online personna, but leaving a trail of digital  assets in our wake. But what actually happens to digital assets when someone dies? This basic question raises a host of legal issues around ownership, privacy, access to usernames and passwords, and the duties of personal representatives when adminstering estates, which do not fit neatly within traditional succession law and property law concepts. The location of digital assets also leads to complex multi-jurisdictional legal issues, yet there is currently no ‘joined-up’ international law on the subject. 

This paper looks briefly at digital assets and how they are defined, before examining the challenges posed by this (apparently) new form of property from an estate planning perspective. Arguing that English succession law has so far failed to address these issues, the paper draws on the approach taken in the United States under the Uniform Fiduciary Access to Digital Assets Act and signposts some of the potential issues which any concerted attempt at law reform will have to embrace. ...  

 A major difficulty in this area is one of nomenclature: defining ‘digital assets’ is not straightforward,8 and there is no current definition in English law. Even outside the legal context, standard definitions are equally hard to find; what we have instead are collective descriptors of what typically falls within the realm of digital assets. 

Obvious examples include things like emails and email accounts, blogs, social media profiles and accounts (Facebook, Twitter, MySpace and LinkedIn), digital music collections (downloaded from iTunes or similar stores), repositories of digital photographs and videos (beyond those which have been uploaded onto social media sites), and online bank accounts and other financial investments. Online billing arrangements, subscriptions to magazines and gyms, Amazon accounts and Ebay seller profiles, as well as other registered shopping sites and loyalty schemes are also digital assets, as are business information lists (for example, client details and purchasing profiles) and domain names which an individual may have registered. In effect, any files stored or generated on digital devices are treated in this way. Several problems are immediately apparent. First, there is the seemingly endless list of things that can constitute a digital asset. Secondly, the value attached to specific types of digital assets will differ immensely; some (for example, bank accounts, financial investments, and domain names) will have an obvious monetary worth, while others (such as photographs, emails and social media profiles) have a purely emotional or sentimental value to the deceased’s surviving relatives. Thirdly, there is the issue of how to categorise digital assets, and the implications that this has. These problems all come to the fore in the succession law context, and are discussed at various stages throughout the following sections.

FDA, personhood and corporate speech

' The Lochnerized First Amendment and the FDA: Toward A More Democratic Political Economy' by Amy Kapczynski  in (2018) 118(7)  Columbia Law Review comments

“[T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last. Speech is everywhere—a part of every human activity (employ­ment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.” Janus v. AFSCME, Justice Kagan, dissenting

The “Lochnerization” of the First Amendment is without a doubt one of the most important developments in constitutional law in recent years. This was so before the explosive end of the 2018 Term, and it is particularly evident after it.  As Justice Kagan laid bare on the same fate­ful day that Justice Kennedy announced his retirement, recent Supreme Court decisions have “weaponiz[ed]” the First Amendment, turning it into a powerful tool against a range of ordinary socioeconomic legisla­tion. There is little that can escape its reach, because we are crea­tures of speech, and governance and speech are inescapably intertwined. 

There may be no edifice of public regulatory power more immedi­ately threatened by this trend than the Food and Drug Administration (FDA). A key accomplishment of both the Progressive Era and the New Deal, the FDA is perhaps the most muscular of all federal agencies, and a key American instance of public power over market imperatives. It also has enjoyed extraordinarily high levels of influence and public trust throughout its long history.

Like many agencies, the FDA governs a great deal that is readily understood as speech, such as disclosures on food labels, warnings for tobacco, and advertisements for medicines and cosmetics.  But the core of its regulatory power runs much deeper and may seem far less obvi­ously susceptible to the acid bath of contemporary free speech law. For example, the FDA is a gatekeeper for new pharmaceuticals, forbidding any person from “introduc[ing] into interstate commerce” any unap­proved drug. This sounds like it constructs governmental power over conduct and products, and it does. But it also can be construed as con­straining speech. An introduction for sale, after all, is often accom­plished through nothing more than speech, such as an offer for sale or advertise­ment. A “drug” is, by law, anything “intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease.”  Intended use is commonly construed via speech, such as advertisements or labels that suggest a particular use. A company may market furniture oil as a cleaning product. But if it markets it as a remedy for cancer, the same substance becomes a “drug” for purposes of the FDA. The FDA is a critical and revealing example, then, of the astonishingly broad reach of a weapon­ized First Amendment. 

As commercial speech protections have expanded, they have, in fact, begun markedly to encroach upon the FDA’s powers. Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to inform us about the prod­ucts we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives over the webs of commodity exchange upon which our lives today depend be rebuilt, particularly if the Court continues down its current path? 

Part I offers a brief overview of the FDA. It traces the arc of the Agency’s construction in order to illuminate the importance of its work and to show the threat posed by recent First Amendment cases, particu­larly to the Agency’s oversight of drug and tobacco markets. 

Part II explores how the First Amendment, long understood as a protector of democracy, has come to pose a threat to democratic author­ity over markets. Using several landmark commercial speech cases, I show that commercial speech protection today is built upon certain distinctive and contestable conceptions of the nature of markets, states, and sub­jects. Markets are cast as neutral domains that must be kept free from democratic interference; the state is suspect and the locus of capture rather than democratic will-formation; and subjects have unitary “inter­ests” that allow no firm distinction between the realm of the political and the realm of the market. These ideas are not plucked from thin air. They are important components of the kind of market fundamentalist thought that gained prominence in the United States in the 1980s and thereafter, as has been elaborated in the literature on neoliberalism. The analysis here complements Professor Jed Purdy’s Beyond the Bosses’ Constitution and simi­larly contributes to the emerging “law and political economy” litera­ture. Law and political economy approaches are grounded in the premise that the economy and political life are not fully separable but mutually shape and influence one another.  Law constructs markets, and the distribution of economic power (and “private” power more broadly) deeply shapes law. Political economy analysis seeks to illuminate this fact and to map the relationship between markets and political life as it is figured across a wide range of legal domains.

Scholars elaborating political economy approaches to law also tend to engage a further question, one resonant with the aims of this Symposium: What new theories and institutions do we need to sustain and create a more genuinely democratic and equal society? Part III addresses this question as it appears in the FDA context. It shows that there is room within current doctrine to revive robust regulatory author­ity for the Agency. It also maps another way to rescue democratic pre­rogatives if courts continue down their current path: a pivot away from the model of private market regulation upon which the FDA’s approach is built. 

If courts thrust us into a world with more limited authority over pri­vate markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach could mitigate the harm done by recent court decisions and have far-reaching benefits for what we might call health democracy or health justice. It is also an instance of a broader point: As a commit­ment to market supremacy advances inside of constitutional doctrine, democratic control over our economy and society will demand new pub­lic infrastructure that displaces or routes around an increasingly ungov­ernable private sector. ... 

Though beyond the ambition of this short contribution, an explora­tion of the political economy of current commercial speech law must eventually lead us also to reconsider its scope. Courts have long been confused about why our Constitution might protect speech acts in the marketplace. Current law reasons increasingly in a market-supremacist idiom, suggesting, outlandishly, that the First Amendment exists to pro­tect market order from democratic governance. Protections for commer­cial speech must serve rather than subvert our democracy. Delineating a new political economy of the First Amendment that helps achieve this aim is an important task for those who seek a future that is more demo­cratic and equal than our present.

Charlatans?

'The success of university law schools in England and Wales: or how to fail' by Anthony Bradney in (2018) 52(4) The Law Teacher 490-498 comments

University law schools in England and Wales presently have a very successful model for providing undergraduate education. This model allows them to discharge their duties with respect to both teaching and research. Providing they are careful in their claims they can make sure that they are compliant with the standards sets by the Advertising Standards Authority. Any change to this model, involving them in trying to train solicitors in their undergraduate degrees, would see law schools fail in the same manner that law schools have failed in the USA and lead to potential cases before the Advertising Standards Authority. 

Bradney argues

 Legal academics in England and Wales are often neither optimistic nor buoyant individuals. Some of the reasons for this are to do with the present situation in higher education. Thus, for example, precarious employment is as much a feature of contemporary law schools as it is of their parent universities. A number of commentators have noted the degree to which systemic introduction of casual employment contracts for academics has taken place in United Kingdom universities.  With the move away from permanent employment comes “stress, [and] anxiety”. Another more longstanding change in universities and their law schools has been the introduction of an audit culture which measures performance with respect to an ever-increasing range of indicators. The introduction of a research audit in 1985 has been followed by a series of other forms of new audit processes at national, institutional and individual levels. The newest form of audit is the recent introduction of the Teaching Excellence Framework whose first results were announced in 2017. Each of these processes is significant in its own right but the cumulative result also needs to be considered. Burrows, for example, has argued that the metrics which are part of audit, taken together, produce “quantified control” of academic life.  It is not that audit in universities is either wrong in itself or even new. Self-examination for both institutions and individuals is a desirable process. The axiom “know thyself” has an ancient lineage.  Equally law schools and legal academics have not suffered from all of the adverse consequences of audit that are to be found in some other academic disciplines. s Nonetheless both the specific failings of particular examples of audit together with the general conceptual misunderstandings that lie behind the current mania for such audit in the public sector have had deleterious effects on the lives of some legal academics.  In this context it is perhaps not surprising that a number of contemporary legal academics report high levels of stress and anxiety.  However, an examination of the history of university legal education in England and Wales suggests that part of the reason for trepidation in legal academics may be deeper rooted than the problems of the present day.

In his obituary of Holland in 1975 Goodhart observed that

"… he [Holland] suffered from the same weakness to which a number of scholars at Oxford and Cambridge have succumbed – the fear of appearing in print in case they would subject themselves to criticism for some error of which they ought to have been aware."  

This “weakness” is not limited to Oxbridge legal scholars of the 1970s. Gardner has commented that “I’m sure all academics think that they are charlatans some days”.  Whilst his remark is an exaggeration it does point to an important truth about the nature of the academic psyche. A person who does not simply reject out of hand Hume’s argument that the proposition that the sun will not rise tomorrow is no less intelligible than that it will or who can comprehend the existential angst of Roquentin in Sartre’s Nausea will always query apparent verities.  The scepticism that lies at the root of the academic disposition makes doubt a prerequisite to every judgement. Everything we as academics do, say and write is continually in question. Academic freedom creates an obligation that makes us individually wholly responsible for all of our actions.   What is vaunted today may be damned tomorrow. The agreement of our peers may show no more than that they share our errors. And, moreover, what is at risk, the accuracy of our judgements, is central to who we are as academics. In almost every instance this pressure is all to the good, pushing us to do ever better work. However, as the example of Holland above shows, there are occasions when the converse is the case. In relation to some questions excessive caution can lead to inaccurate judgements. In this article I will argue that this can be the case in the present day when the academic discipline of law assesses the overall quality of its work and then plans its future.

Competition and Activism

'Misuse of Market Power in Australia and Abuse of Dominance in Canada: Two Legislated Effects Tests for Unilateral Conduct' by Katharine Kemp in (2018) 26 Australian Journal of Competition and Consumer Law 174 comments 

The new Australian law against misuse of market power (as amended in 2017) shares a number of similarities with the Canadian law against abuse of dominance. This article makes a comparative analysis of these laws against unilateral anti-competitive conduct, highlighting their similarities, including their focus on whether the impugned conduct has the effect or likely effect of substantially lessening competition. It also identifies important differences, including the Australian requirement to prove “purpose or effect” in contrast to the Canadian requirement to prove “purpose and effect” and the respective methods of addressing “legitimate business purpose” claims. It illustrates some of these differences with reference to a recent digital economy case in which the Canadian Commissioner of Competition succeeded in proving that a firm abused its dominance by imposing restrictions on access to data it controlled, notwithstanding the firm’s attempted justifications on privacy grounds.

'Incorporating Social Activism' by Tom C. W. Lin in (2018) 98 Boston University Law Review 1535 comments

 Corporations and their executives are at the forefront of some of the most contentious and important social issues of our time. Through pronouncements, policies, boycotts, sponsorships, lobbying, and fundraising, corporations are actively engaged in issues like immigration reform, gun regulation, racial justice, gender equality, and religious freedom. This is the new reality of business and social activism in America. This Article offers the first comprehensive legal examination of this new corporate social activism and its wide-ranging effects on law, business, and society. It begins by providing a brief history of corporations and social activism. Next, it establishes the legal and political foundations of contemporary corporate social activism. It investigates how the convergence of government and private enterprise, the rise of corporate social responsibility, and the expansion of corporate political rights have all fostered contemporary corporate social activism. Moving from origins to effects, it then examines the potential costs and benefits associated with this new dynamic. Finally, this Article offers pragmatic proposals for addressing the broader implications of contemporary corporate social activism on law, business, and society. Specifically, it discusses how such activism can impact corporate purpose, corporate governance, and public interest lawyering. Ultimately, this Article aspires to provide an original legal framework for thinking, speaking, and acting anew about corporate social activism in America.

Taxing IP

'Taxation of Intellectual Property Under Domestic Law and Tax Treaties: Australia' by Celeste Black in Guglielmo Maisto (ed), Taxation of Intellectual Property under Domestic Law, EU Law and Tax Treaties (IBFD, 2018) comments

 This chapter examines the operation of Australia’s domestic tax law and tax treaties in relation to transactions involving intellectual property (IP). It reviews the legal protections provided under Australia’s general law in relation to copyright, patents, trademarks and confidential information and considers the legal distinction between alienation of IP and granting the right to use IP (licencing). The application of domestic tax laws (income tax, depreciation rules and capital gains tax) to disposals and licencing transactions involving IP is considered before moving to cross-border transactions and the operation of royalty withholding tax. Australia’s tax treaty practice is then examined, specifically Article 12 (royalties) and the interaction with Article 7 (business profits). Special issues considered include: software, know how, equipment leasing, technical services and distinguishing royalties from payments for services.

Algorithms and IPND Mining

'Algorithms, Correcting Biases' by Cass Sunstein in Social Research (Forthcoming) comments 

A great deal of theoretical work explores the possibility that algorithms may be biased in one or another respect. But for purposes of law and policy, some of the most important empirical research finds exactly the opposite. In the context of bail decisions, an algorithm designed to predict flight risk does much better than human judges, in large part because the latter place an excessive emphasis on the current offense. Current Offense Bias, as we might call it, is best seen as a cousin of “availability bias,” a well-known source of mistaken probability judgments. The broader lesson is that well-designed algorithms should be able to avoid cognitive biases of many kinds. Existing research on bail decisions also casts a new light on how to think about the risk that algorithms will discriminate on the basis of race (or other factors). Algorithms can easily be designed so as to avoid taking account of race (or other factors). They can also be constrained so as to produce whatever kind of racial balance is sought, and thus to reveal tradeoffs among various social values.

'Predictive Policing – In Defense of ‘True Positives’' by Sabine Gless in Emre Bayamlıoğlu, Irina Baraliuc, Liisa Janssens and Mireille Hildebrandt (eds). Being Profiled: Cogitas Ergo Sum. 10 Years of Profiling the European Citizen (Amsterdam University Press 2018) 76-83 comments 

Predictive policing has triggered a heated debate around the issue of ‘false positives’. Biased machine training can wrongly classify individuals as high risk simply as a result of belonging to a particular ethnic group and many agree such persons should not have to shoulder the burden of over-policing due to an inherent stochastic problem. The paper takes a pragmatic stand and argues that ‘true positives’, i.e. individuals who have been correctly identified as perpetrators, offer the best opportunity to address the issue of biased profiling. 

The first reason is purely pragmatic – they are already party to a criminal investigation and, as such, have a strong incentive to challenge law enforcement methods and scrutinize policing methods on an individual basis. The second reason is more general (and commonly subscribed to) – that discriminatory stops and searches are inherently unfair, threaten social peace, and frustrate targeted groups. 

To create an efficient legal tool against discriminatory law enforcement, defence should be entitled to contest a conviction for biased predictive policing, with a specific exclusionary rule protecting ‘true positives’ against the use of tainted evidence.

Want to mine the Integrated Public Number Directory (IPND), the national landline and mobile phone number database that is managed by Telstra but covers all providers? That includes 'silent' (aka ex-directory) numbers rather than just those published in print and online directories.

The Telecommunications Amendment (Access to Mobile Number Information for Authorised Research) Regulations 2018 made earlier this week strengthen the privileging of political parties and other entities that escape restrictions through provisions under, for example, section 7C of the Privacy Act 1988 (Cth).

The Regulations indicate that research using the IPND is 'permitted' under s 17A of the Regs

 (1) Research is permitted research if one or more of the following apply: (a) the research is relevant to public health, including epidemiological research; (b) the research relates to an electoral matter and is conducted by or for: (i) a registered political party; or (ii) a political representative; or (iii) a candidate in an election for an Australian Parliament or a local government authority; (c) the research will contribute to the development of public policy and is conducted by or for the Commonwealth or a Commonwealth entity. 

(2) Despite subregulation (1), research is not permitted research if: (a) in the case of a research entity conducting research on its own behalf—the research is conducted for a primarily commercial purpose; or (b) in the case of a research entity conducting research for another person or body—the research entity is conducting the research for a primarily commercial purpose of the other person or body.

Politicians will of course state that their research is to foster a vibrant democracy, not for commercial purposes.

New sections state

5.6 Disclosure of information—unlisted mobile number information 

For the purposes of subsection 292(1) of the Act, the following circumstances apply to a disclosure of information or a document: (a) the disclosure is made by Telstra to an authorised research entity; (b) the information is, or the document consists of, authorised unlisted mobile number information. 

Division 5.2—Research authorisations 

Subdivision 5.2.1—Introduction 

5.7 Simplified outline of this Division 

Telstra can only disclose unlisted mobile number information to an authorised research entity (regulation 5.6). An authorised research entity is a person covered by a research authorisation granted by the ACMA under this Division. A research authorisation may cover more than one authorised research entity. Before the research authorisation is granted, the ACMA must be satisfied, among other things, that each research entity sought to be authorised will use the unlisted mobile number information for certain kinds of research. The research authorisation starts on the first day Telstra provides unlisted mobile number information to an authorised research entity and ends at the end of the period specified in the authorisation (which can be no longer than 12 months). An authorised research entity must comply with the conditions set out in Subdivision 5.2.3 and any further conditions specified by the ACMA. Failure to comply with these conditions may lead to the authorised research entity being removed from the authorisation by the ACMA and will be considered by the ACMA if the entity is specified in an application for another research authorisation. A contravention of a condition is an offence (see regulation 5.36). After a research authorisation comes to an end, or if a research entity is removed from an authorisation, an authorised research entity must comply with the requirements of regulations 5.30 and 5.31 in relation to the unlisted mobile number information and research information the entity has received. Failure to comply with this regulation will be considered by the ACMA if the entity is specified in an application for another research authorisation. A contravention of regulation 5.30 or 5.31 is an offence (see regulation 5.36). 

Subdivision 5.2.2—Application for, and grant of, research authorisations 

5.8 Applying for research authorisations (1) A person may apply to the ACMA for a research authorisation to cover that person and any other persons specified in the application. 

(2) The applicant for the authorisation, and each other person to be covered by the authorisation, is a research entity. 

(3) The application must: (a) be in writing; and (b) be in a form approved, in writing, by the ACMA; and (c) specify: (i) each research entity to be covered by the authorisation; and (ii) the kind or kinds of unlisted mobile number information being sought; and (iii) the kind or kinds of research for which the unlisted mobile number information is sought and the reasons why that information is sought; and (d) be accompanied by: (i) the charge (if any) for the application fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005; and (ii) a completed privacy impact assessment in the form approved, in writing, by the ACMA. 

5.9 ACMA may request further information 

(1) The ACMA may, in writing, request a research entity specified in an application for a research authorisation to give it further information within 90 days after the request is made. 

(2) The request must state the effect of subregulation (3). 

(3) If the entity does not provide the information within 90 days, the ACMA may treat the application as if it did not specify the entity. 

5.10 ACMA may consult 

Before granting a research authorisation, the ACMA may consult any person or body the ACMA considers appropriate. 

5.11 Research authorisations 

Grant of research authorisation 

(1) On an application for a research authorisation in accordance with regulation 5.8, the ACMA must grant the authorisation if the ACMA is reasonably satisfied that: (a) the kind or kinds of research proposed to be covered by the authorisation is permitted research; and (b) each research entity will comply with the conditions of the authorisation (including any additional conditions specified by the ACMA under subregulation 5.12(4)); and (c) regulations 5.30 and 5.31 will be complied with by each research entity if the authorisation ends or the entity is removed from the authorisation. Note: If the ACMA decides not to grant the authorisation, a research entity, or any other person affected by the decision, may request the ACMA to reconsider its decision (see regulation 5.32). 

Matters to consider in granting research authorisation 

(2) In determining whether a research entity will comply with the conditions of the authorisation, the ACMA must have regard to the following: (a) the practices, procedures, processes and systems the entity has in place, or intends to put in place, to comply with the conditions of the authorisation; (b) if the entity has previously been covered by a research authorisation—the extent to which the entity has complied with, or is complying with, the conditions of that authorisation; (c) if the entity has been granted an IPND Scheme authorisation—the extent to which the entity has complied with, or is complying with, the conditions of that authorisation; (d) the extent to which the entity’s collection, use and disclosure of personal information has complied with, or is consistent with, the Privacy Act 1988 (whether or not that Act applies to the entity). 

(3) In determining whether paragraph (1)(c) is satisfied, if the research entity has previously been covered by a research authorisation, the ACMA must have regard to the extent to which the entity complied with regulation 5.30 or 5.31 after that authorisation ended or the entity was removed from that authorisation. 

(4) Subregulations (2) and (3) do not limit the matters that the ACMA may have regard to. 

Deemed refusal to grant research authorisation 

(5) For the purposes of Subdivision 5.2.6 (review of decisions), if the ACMA does not make a decision on the application under subregulation (1) within the period covered by subregulation (6), the ACMA is taken to have decided not to grant the authorisation. 

(6) The period covered by this subregulation is the period that ends at the later of: (a) 90 days after receiving the application; or (b) if the ACMA has, within those 90 days, given any research entity a written request for further information under subregulation 5.9(1)—90 days after the end of the period for compliance with the last request made under that subregulation. 

5.12 Content of research authorisations 

(1) A research authorisation must be granted in writing. (2) The authorisation must specify the following: (a) each research entity (an authorised research entity) covered by the authorisation; (b) the kind or kinds of permitted research to which the authorisation applies; (c) the kind or kinds of unlisted mobile number information that may be disclosed to an authorised research entity. 

(3) The authorisation must specify a period that the authorisation is in effect which: (a) starts on the day Telstra first discloses authorised unlisted mobile number information to an authorised research entity covered by the authorisation; and (b) ends no later than 12 months afterwards. 

(4) The authorisation may specify conditions additional to those specified in Subdivision 5.2.3 to which the authorisation is subject. Note 1: If the ACMA specifies an additional condition under this subregulation, an authorised research entity, and any other person affected by the decision, may request the ACMA to reconsider its decision (see regulation 5.32). Note 2: Before granting a research authorisation, the ACMA may consult any person or body about any additional conditions to be specified under subregulation (4) (see regulation 5.10). 

5.13 Notice relating to research authorisations 

(1) If the ACMA grants a research authorisation, the ACMA must, as soon as is reasonably practicable, give each authorised research entity, and Telstra, a copy of the authorisation. 

(2) If: (a) the ACMA grants a research authorisation; and (b) the authorisation specifies an additional condition to which the authorisation is subject; the ACMA must, as soon as is reasonably practicable, give written notice to each authorised research entity stating that the entity, and any other person affected by the decision, may request the ACMA to reconsider the decision under regulation 5.32. 

(3) As soon as reasonably practicable after the ACMA decides not to grant a research authorisation, the ACMA must give written notice to each research entity specified in the application for the authorisation stating: (a) that the authorisation has not been granted; and (b) the reasons for not granting the authorisation; and (c) that the entity, and any other person affected by the decision, may request the ACMA to reconsider the decision under regulation 5.32. Note 1: See also section 27A of the Administrative Appeals Tribunal Act 1975. Note 2: A research entity is taken not to be specified in an application if the entity does not provide the ACMA with further information within 90 days after the ACMA requests that information: see regulation 5.9. 

5.14 Period of research authorisations 

A research authorisation has effect during the period specified in the authorisation, subject otherwise to these Regulations. 

Subdivision 5.2.3—Authorisation conditions 

5.15 Authorisation conditions 

A research authorisation is subject to: (a) the conditions specified in this Subdivision; and (b) any additional conditions specified by the ACMA under subregulation 5.12(4) or regulation 5.26. 

5.16 Receipt of authorised unlisted mobile number information 

(1) If an authorised research entity covered by the authorisation receives authorised unlisted mobile number information from Telstra, the entity must give written notice to the following within 10 business days after receiving the information: (a) the ACMA; (b) each other authorised research entity covered by the authorisation. 

(2) Subregulation (1) does not apply if the entity has previously received a notice in relation to that information under that subregulation from another authorised research entity covered by the authorisation. 

5.17 Use and disclosure of authorised unlisted mobile number information 

(1) An authorised research entity must not make a record of, or use, authorised unlisted mobile number information unless it is for the purposes of authorised research under the authorisation. 

(2) An authorised research entity must not disclose authorised unlisted mobile number information unless authorised, or required to do so, by or under: (a) subregulation (3) or (4); or (b) any other law that applies to the entity. 

(3) The entity may disclose, for the purposes of authorised research under the authorisation, authorised unlisted mobile number information to: (a) the entity’s research employees; or (b) any other authorised research entities covered by the authorisation. 

(4) The entity must disclose authorised unlisted mobile number information to the ACMA if the ACMA requests the information. 

5.18 Covered by the Privacy Act 

(1) An authorised research entity must be covered by the Privacy Act while the authorisation covers the entity. Note: For the meaning of covered by the Privacy Act, see regulation 1.7. 

(2) Subregulation (1) does not apply if the entity is a registered political party. 

5.19 Compliance with the Privacy Act 

(1) If an authorised research entity collects, uses or discloses personal information about an individual for the purposes of authorised research under the authorisation, the entity must not do an act, or engage in a practice, that breaches: (a) an Australian Privacy Principle in relation to personal information about the individual; or (b) a registered APP code that binds the entity in relation to personal information about the individual. 

(2) Subregulation (1) applies regardless of whether: (a) the entity is a registered political party; or (b) the act or practice of the entity is exempt under section 7C of the Privacy Act 1988 (which provides that certain political acts and practices are exempt). 

5.20 Contacting persons for authorised research 

Making contact 

(1) An authorised research entity may contact a person, using authorised unlisted mobile number information, only by calling the person. Example: The authorised research entity must not contact the person by text message. 

(2) If an authorised research entity uses authorised unlisted mobile number information to call a person (the contacted person) for the purposes of authorised research under the authorisation, the entity must, during the call: (a) tell the person: (i) the entity’s name; and (ii) the purpose of the research; and (iii) how the entity obtained the mobile number used to call the person; and (iv) how the entity proposes to use research information relating to the person; and (v) that the use of the number by the entity is authorised by the ACMA for the purposes of the research; and (vi) if asked by the person—how the person can access any personal information about the person held by the entity; and (b) ask the person whether the person gives consent for the use and disclosure of the research information relating to the person in the research; and (c) tell the person that the person may withdraw any consent so given at any time during the call; and (d) give the person any other information that is required by law (for example, under the Privacy Act 1988); and (e) comply with all applicable laws relating to unsolicited contact with another person. Note: For the purposes of paragraph (e), applicable laws relating to unsolicited contact with another person include the following: (a) the Privacy Act 1988; (b) the Spam Act 2003; (c) the Do Not Call Register Act 2006. 

Contacted person does not consent to use and disclosure of research information 

(3) If the contacted person informs the authorised research entity during the call that the person does not consent, or withdraws consent, to the use and disclosure of research information relating to the person, the entity: (a) must not make a record of, use, or disclose any research information the entity has relating to the person; and (b) must not use the authorised unlisted mobile number information relating to the person; and (c) as soon as reasonably practicable: (i) must take all reasonable steps to destroy any research information the entity has relating to the person within 10 business days after the person informs the entity that the person does not consent, or has withdrawn consent; and (ii) must give written notice to any other authorised research entity covered by the same authorisation that authorised unlisted mobile number information relating to the contacted person must not be used. 

(4) If an authorised research entity is notified that authorised unlisted mobile number information in relation to the contacted person must not be used, the entity must not use the authorised unlisted mobile number information. Internal dispute procedures 

(5) The entity must have internal dispute resolution procedures enabling it to deal with inquiries or complaints from a contacted person about its use or disclosure of any research information relating to the person. 

(6) If a contacted person makes a complaint to the entity about the use or disclosure of any research information relating to the person, the entity must: (a) inform the contacted person that if the person is dissatisfied with the way in which the complaint is handled, the person may make a complaint to the ACMA; and (b) give the contacted person information about how to contact the ACMA; and (c) provide reasonable assistance to the ACMA in relation to any such complaint if requested by the ACMA to do so. 

5.21 Disclosure of research information 

(1) An authorised research entity must not disclose research information relating to a contacted person unless authorised, or required to do so, by or under: (a) subregulation (2) or (3); or (b) any other law that applies to the entity. Note: See regulation 5.31 in relation to the recording, use or disclosure of research information after the authorisation ends or the entity is removed from the authorisation. 

(2) The entity may disclose research information relating to a contacted person to the entity’s research employees. 

(3) The entity may disclose research information relating to a contacted person if: (a) the information is de‑identified; and (b) the information does not include the person’s public number. 

(4) This regulation is subject to subregulation 5.20(3). Note: Subregulation 5.20(3) provides that an authorised research entity must not record, use or disclose research information relating to a contacted person if the person does not consent, or withdraws consent, to the use and disclosure of that information. 

5.22 Technical system for receiving authorised unlisted mobile number information 

An authorised research entity must have technical systems to receive authorised unlisted mobile number information in accordance with any technical method specified by Telstra. 

5.23 Compliance with the Act 

An authorised research entity must comply with any requirements imposed on the entity by the Act and any legislative instrument made under the Act. 

5.24 Employees of the authorised research entity 

An authorised research entity must take all reasonable steps to ensure that each research employee of the entity: (a) is made aware of the conditions of the authorisation (including any additional conditions specified by the ACMA under subregulation 5.12(4) or regulation 5.26); and (b) cooperates with the entity in complying with those conditions; and (c) notifies the entity in writing as soon as reasonably practicable after the research employee becomes aware of an act or omission that would result in a contravention of a condition. 

5.25 Contravention of authorisation conditions 

(1) An authorised research entity must give written notice to the ACMA as soon as reasonably practicable after it becomes aware of a contravention of a condition of the authorisation (including any additional condition specified by the ACMA under subregulation 5.12(4) or regulation 5.26) by: (a) the entity; or (b) any other authorised research entity covered by the same authorisation. 

(2) An authorised research entity must, as soon as reasonably practicable after it becomes aware of a contravention of a condition of the authorisation, take reasonable steps to minimise the effects of the contravention. (3) To avoid doubt, this regulation is a condition of the authorisation. 

Subdivision 5.2.4—Changes to authorisations 

5.26 Changes made by the ACMA (1) After a research authorisation is granted, the ACMA may, in writing, with effect from a specified date: (a) specify additional conditions to which the authorisation is subject; or (b) vary or revoke any condition other than a condition specified in Subdivision 5.2.3. 

Consultation 

(2) Before taking an action under subregulation (1), the ACMA may consult any person or body the ACMA considers appropriate. 

Notice to the research entity of changes to authorisation 

(3) As soon as reasonably practicable after the ACMA takes an action under subregulation (1), the ACMA must give written notice to each authorised research entity covered by the authorisation stating: (a) the action taken; and (b) the reasons for taking the action; and (c) that the entity, and any other person affected by the action, may request the ACMA to reconsider the action taken under regulation 5.32 (except if the action is to revoke a condition). Note: See also section 27A of the Administrative Appeals Tribunal Act 1975. 

(4) The notice must be given: (a) as soon as reasonably practicable after the action is taken under subregulation (1); and (b) before the action is expressed to take effect. Notice to Telstra of changes to authorisation (5) The ACMA must, as soon as reasonably practicable, give written notice to Telstra of the action taken under subregulation (1). 

Subdivision 5.2.5—Removal of authorised research entities 

5.27 Effect of removal 

An authorised research entity stops being covered by a research authorisation if the entity is removed from the authorisation under this Subdivision. 

5.28 Removal of authorised research entities—contravention of research authorisation 

(1) The ACMA may, in accordance with this regulation, remove an authorised research entity from a research authorisation if the ACMA is satisfied that a condition of any research authorisation that covers the entity has been contravened. Note: The entity removed, or any person who is affected by this decision, may request the ACMA to reconsider its decision (see regulation 5.32). 

Consultation 

(2) Before removing the entity, the ACMA may consult any person or body the ACMA considers appropriate. 

Notice to entity of removal 

(3) Before removing the entity, the ACMA must: (a) give written notice to the entity: (i) stating that the ACMA proposes to remove the entity from the authorisation; and (ii) inviting the entity to make a submission to the ACMA about the removal within a period specified in the notice; and (b) consider any submission received within the specified period. 

(4) The specified period must not be shorter than 30 days after the notice is given. 

Notice of removal 

(5) As soon as reasonably practicable after the ACMA removes the entity, the ACMA must give written notice to the entity stating: (a) that the entity has been removed from the authorisation; and (b) the reasons for the entity’s removal; and (c) that the entity, and any other person affected by the decision, may request the ACMA to reconsider the decision under regulation 5.32. Note: See also section 27A of the Administrative Appeals Tribunal Act 1975. 

(6) As soon as reasonably practicable after the ACMA removes the entity, the ACMA must give written notice of the removal to: (a) any other authorised research entity covered by the authorisation; and (b) Telstra. Further application for authorisation after removal (7) If the ACMA removes an authorised research entity from a research authorisation, an application for a further research authorisation covering the entity cannot be made until after the end of the first‑mentioned research authorisation. 

5.29 Voluntary removal of authorised research entities 

(1) If an authorised research entity requests the ACMA in writing to remove the entity from a research authorisation, the ACMA may remove the entity from the authorisation. 

(2) Without limiting the matters the ACMA may have regard to in deciding whether to remove the entity, the ACMA may have regard to whether the entity has received a notice under subregulation 5.28(3) while the authorisation has been in effect. 

(3) If the ACMA removes the entity, the ACMA must, as soon as reasonably practicable, give written notice of the removal to the following: (a) the entity; (b) any other authorised research entity covered by the authorisation; (c) Telstra. 

(4) If the ACMA does not remove the entity, the ACMA must, as soon as reasonably practicable, give written notice to the entity stating: (a) that the entity has not been removed from the authorisation; and (b) the reasons for not removing the entity; and (c) that the entity, and any other person affected by the decision, may request the ACMA to reconsider the decision under regulation 5.32. Note: See also section 27A of the Administrative Appeals Tribunal Act 1975. 5.30 No use or disclosure of authorised unlisted mobile number information by former authorised research entities 

Purpose of this regulation 

(1) This regulation is made for the purposes of paragraph 5.11(1)(c). Note: The ACMA must grant a research authorisation if it is satisfied of the matters set out in subregulation 5.11(1). 

Scope of this regulation 

(2) This regulation applies if: (a) an authorised research entity (the former authorised research entity) has received authorised unlisted mobile number information under a research authorisation; and (b) the authorisation ends, or the former authorised research entity is removed from the authorisation. Former authorised research entity must not use information 

(3) The former authorised research entity: (a) must not make a record of, or use, the information; and (b) must not disclose the information unless authorised, or required to do so, by or under: (i) subregulation (4); or (ii) any other law that applies to the former authorised research entity; and (c) must take all reasonable steps to destroy the information within 10 business days after the authorisation ends or the former authorised research entity is removed from the authorisation (as the case requires). Disclosure to the ACMA 

(4) The former authorised research entity must disclose the information to the ACMA if the ACMA requests the information. 

5.31 Use or disclosure of research information after end of research authorisation etc. 

Purpose of this regulation 

(1) This regulation is made for the purposes of paragraph 5.11(1)(c). Note: The ACMA must grant a research authorisation if it is satisfied of the matters set out in subregulation 5.11(1). Research authorisation ends etc. 

(2) If an authorised research entity has research information relating to a contacted person and the authorisation that covers the entity ends, or the entity is removed under regulation 5.29 from the research authorisation covering the entity, the entity must not: (a) make a record of, or use, the information; or (b) disclose the information; unless the information is de‑identified and does not include the person’s public number. Authorised research entity is involuntarily removed from research authorisation 

(3) If an authorised research entity has research information relating to a contacted person and the entity is removed under regulation 5.28 from the research authorisation covering the entity, the entity: (a) must not make a record of, or use, the information; and (b) must not disclose the information unless authorised, or required to do so, by or under any law that applies to the entity; and (c) must take all reasonable steps to destroy the information within 10 business days after the entity is removed from the authorisation. 

Subdivision 5.2.6—Review of decisions 

5.32 Decisions that may be subject to reconsideration by the ACMA 

(1) A person affected by one of the following decisions, who is dissatisfied with the decision, may request the ACMA to reconsider the decision: (a) a decision not to grant a research authorisation (regulation 5.11); (b) a decision to grant a research authorisation subject to additional conditions (subregulation 5.12(4)); (c) a decision to specify an additional condition after a research authorisation has been granted (subregulation 5.26(1)); (d) a decision to vary an additional condition of an authorisation (subregulation 5.26(1)); (e) a decision to remove an authorised research entity from a research authorisation (regulation 5.28); (f) a decision not to remove an authorised research entity from a research authorisation after receiving a request from the entity to be removed (regulation 5.29). 

(2) The request: (a) must be in writing; and (b) must be in a form approved, in writing, by the ACMA; and (c) must set out the reasons for the request. (3) The request must be made within 28 days after the decision, or within such longer period as the ACMA allows. 

5.33 Reconsideration by the ACMA 

(1) Upon receiving a request under regulation 5.32 to reconsider a decision, the ACMA must: (a) reconsider the decision; and (b) affirm, vary or revoke the decision. 

(2) Before making a decision on the reconsideration of the decision, the ACMA may consult any person or body the ACMA considers appropriate. 

(3) The ACMA’s decision on the reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made. 

(4) The ACMA must give written notice to the person making the request of its decision on the reconsideration, including the reasons for the decision. Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights. 

5.34 Deadlines for reconsiderations 

After receiving a request under regulation 5.32 for the reconsideration of a decision, the ACMA is taken to affirm the original decision 90 days after receiving the request if it does not make a decision on the request under subregulation 5.33(1) before then. 

5.35 Review by the Administrative Appeals Tribunal Applications may be made to the Administrative Appeals Tribunal for review of a decision mentioned in subregulation 5.32(1) if the ACMA has affirmed or varied the decision under regulation 5.33. 

Subdivision 5.2.7—Offences 

5.36 Offence of contravening a condition etc. 

(1) An authorised research entity covered by a research authorisation commits an offence of strict liability if: (a) the entity contravenes a condition of the authorisation; and (b) the condition is not regulation 5.19. Penalty: 10 penalty units. 

(2) An authorised research entity commits an offence of strict liability if: (a) the entity does an act, or engages in a practice, that contravenes regulation 5.19; and (b) either: (i) the entity is a registered political party; or (ii) the act or practice is exempt under section 7C of the Privacy Act 1988 (which provides that certain political acts and practices are exempt). Penalty: 10 penalty units. 

(3) A former authorised research entity commits an offence of strict liability if the entity contravenes subregulation 5.30(3) or (4). Penalty: 10 penalty units. 

(4) A person commits an offence of strict liability if the person contravenes subregulation 5.31(2) or (3). Penalty: 10 penalty units.

Veterans

The Productivity Commission's draft A Better Way To Support Veterans report on veterans administration comments

The key message of this draft report is that the current veterans’ compensation and rehabilitation system is not ‘fit-for-purpose’ – it requires fundamental reform. The system is out-of-date and is not working in the interest of veterans and their families or the Australian community. The system needs to focus on the wellbeing of veterans over their lifetime. This means more attention to prevention, rehabilitation and transition support.

Salient points are

• The veterans’ compensation and rehabilitation system is not fit-for-purpose — it requires fundamental reform. It is out-of-date and is not working in the interests of veterans and their families or the Australian community. 

• The system fails to focus on the lifetime wellbeing of veterans. It is complex (legislatively and administratively), difficult to navigate, inequitable, and it is poorly administered (and has been for decades), which places unwarranted stress on claimants. Some supports are not wellness focused, some are not well targeted and others are archaic, dating back to the 1920s. 

• In 2017-18, the Department of Veterans’ Affairs (DVA) spent $13.2 billion supporting about 166 000 veterans and 117 000 dependants (about $47 000 per client). And while the veteran support system is more generous overall than workers’ compensation schemes for civilians, money alone does not mean it is an effective scheme. 

• The system needs to focus on the wellbeing of veterans over their lifetime. This means more attention to prevention, rehabilitation and transition support, which in turn will produce better outcomes for veterans, their families and the Australian community. 

• To achieve this focus, the system needs to be redesigned based on the best practice features of workers’ compensation and contemporary social insurance schemes. 

• This will require new governance and funding arrangements.

– A single Ministry for Defence Personnel and Veterans should be established. 

– A new independent statutory agency — the Veteran Services Commission — should be created to administer and oversee the performance of the veteran support system. 

– DVA’s policy responsibility should be transferred to the Department of Defence within a new Veterans Policy Group. 

– An annual premium to fund the expected costs of future claims should be levied on Defence. 

• Responsibility for preparing serving veterans for, and assisting them with, their transition to civilian life should be centralised in a new Joint Transition Command within Defence. 

• DVA’s recent Veteran Centric Reform transformation program is showing early signs of success. It should continue to be rolled out to mid 2021 as planned, but adjusted where necessary to accommodate the proposed reforms. 

• The current system should be simplified by: continuing to make the system easier for clients to access (a complex system does not need to be complex for users), rationalising benefits, harmonising across the Acts (including a single pathway for reviews of decisions, a single test for liability and common assessment processes), and moving to two compensation and rehabilitation schemes by July 2025. 

– Scheme 1 should largely cover an older cohort of veterans with operational service and injuries that occurred before 2004, based on a modified Veterans’ Entitlements Act 1986 (VEA). Scheme 2 should cover all other veterans, based on a modified Military Rehabilitation and Compensation Act 2004 (MRCA), and over time will become the dominant scheme. 

• The way treatments and supports are commissioned and provided to veterans and their families also needs to change. There needs to be more proactive engagement with clients and providers and better oversight of outcomes. 

• The recent decision to expand non-liability coverage to mental health care was a positive one, however, the Veteran Mental Health Strategy needs to be updated urgently with specific attention to suicide prevention and access to supports for veterans.

Flaxton Report on corruption in Qld Prisons

The Queensland Crime and Corruption Commission's Taskforce Flaxton: An examination of corruption risks and corruption in Queensland prisons report comments

In March 2018, the Crime and Corruption Commission (CCC) commenced Taskforce Flaxton in response to the corruption risks inherent in the custodial environment, the complex model used to deliver custodial services in Queensland, the 2017 Machinery of Government changes that established Queensland Corrective Services as a stand-alone agency, increases in the number of allegations made to the CCC about corrupt conduct involving staff working in Queensland prisons and the outcomes of a number of CCC investigations that identified possible systemic issues. 

Taskforce Flaxton sought to examine:

• corruption and risks of corruption in QCS facilities (including 14 prisons (two managed under private contracts), and work camps) 

• features of the legislative, policy and operational environment that may enable corrupt conduct to occur or are vulnerable to corrupt conduct 

• reforms to better prevent, detect and deal with corrupt conduct within QCS facilities.

The CCC found that unique features of the prison environment create corruption risk. Specifically:

• Prison overcrowding is negatively affecting the way prisons operate and increasing corruption risk. The CCC is of the view that alleviating prison overcrowding is essential to reducing corruption risk and corruption in Queensland prisons. 

• The complexity and diversity of the Queensland prisoner population influences prison dynamics and the range and nature of services offered. Further, prisoners with special needs are more dependent on services and correctional staff, and at risk of being exploited as a result of corrupt conduct.

 The CCC is of the view that more needs to be done to improve prisoner health, in particular.

• The inherently closed nature of prisons can facilitate and perpetuate corruption. Greater investment in surveillance technology, improved public reporting and an enhanced independent inspection function will facilitate transparency and accountability. 

• The relationships between custodial correctional officers and prisoners that are necessary to maintain order in a prison create significant corruption risk. 

• Privately operated prisons create challenges for the State in ensuring prisoners detained in these facilities are treated humanely and have appropriate access to programs and services.

The CCC also identified a number of corruption risks that were particularly evident. These included failure to report corruption, inappropriate relationships, excessive use of force, misuse of authority, introduction of contraband and misuse of information. 

An effective anti-corruption framework is necessary to mitigate the unique features of the prison environment that create corruption risk and the specific corruption risks that manifest in prisons. In the CCC’s view, the existing framework operating in Queensland is not effectively preventing, detecting or dealing with corruption risk or corruption in prisons. 

This report proposes an anti-corruption framework that, if effectively implemented, will improve safety and security, integrity and impartiality, accountability and transparency, and performance. To deliver improvements in these areas, and ultimately reduce corruption risk, the CCC proposes that QCS must improve its strategy and performance, implement more robust anti-corruption measures, and improve its internal oversight. In addition, the CCC proposes enhancements to external oversight mechanisms.

The Commission makes the following recommendations

Recommendation 1 

That QCS: (a) develop a comprehensive measurement strategy to assess the performance of its anticorruption strategy (b) incorporate anti-corruption performance reporting into appropriate governance committees to ensure appropriate oversight (c) publicly report anti-corruption performance outcomes. 

Recommendation 2 

That QCS revise the way it measures the performance of prisons. The performance framework should: (a) use consistent performance standards and a consistent performance measurement approach across all Queensland prisons (b) include all appropriate cost, input, output, and outcome key performance indicators (including integrity measures and data quality measures) (c) include strategies to improve data availability and data quality (d) provide greater public access to performance indicators and performance reports. 

Recommendation 3 

That QCS review its risk management framework to improve the identification, management and oversight of corruption risk. 

Recommendation 4  

That QCS review its organisational structure to: (a) support the delivery of its ten year strategy (b) provide greater role and function clarity (including span of control, reporting lines, delegations and authorisations, employee performance management) (c) be sufficiently agile to accommodate future changes in the agency’s strategy (d) improve standards, drive performance and deliver efficiencies (e) promote internal communication. 

Recommendation 5 

That, at a minimum, the following functions be centrally controlled and services delivered in line with Service Level Standards: (a) human resources, including the QCS Academy, workforce planning and talent management and rostering (b) finance, including contract management and procurement (c) information technology and digital services (d) facilities and assets (e) ethical standards (f) intelligence. 

Recommendation 6 

That: (a) QCS establish an organisational-wide cultural change program to assess current culture, create a shared vision of the ideal culture, develop and implement initiatives to support cultural change, and monitor and report on the implementation of initiatives and cultural change (b) the organisational-wide cultural change program be monitored by the QCS Board of Management to ensure alignment of culture, strategic intent and performance priorities, and to ensure the program is adequately resourced. 

Recommendation 7 

That: (a) QCS, as contract manager on behalf of the State of Queensland, and private prison providers agree and implement a universal set of culture indicators (b) each prison measure culture on an annual basis and publicly release these findings. 

Recommendation 8 

That QCS: (a) commission an independent capability review to assess the agency’s capability to efficiently and effectively deliver its strategic intent (b) develop strategies to address capability gaps (particularly human resources, information and communication technology, operational performance reporting and ethical standards) (c) monitor strategy development, implementation and outcomes at the QCS Board of Management. 

Recommendation 9 

That QCS: (a) establish a centralised function responsible for policy and practice management throughout the agency to promote performance standards and consistency (b) review Custodial Operations Practice Directives and local instructions to improve clarity and consistency. 

Recommendation 10 

That: (a) Queensland Health implement the recommendations of the Offender Health Services Review Final Report (b) QCS support the implementation of the recommendations of the Offender Health Services Review Final Report (c) QCS and Queensland Health jointly identify aspects of the QCS operating model (systems, policies and practices) that undermine the delivery of prisoner health services and QCS, where feasible, change systems, policies or practices to facilitate better prisoner health outcomes. 

Recommendation 11 

That QCS develop an agency-specific Code of Practice to complement the Code of Conduct. 

Recommendation 12 

That QCS: (a) include QCS values in human resource policy and practice (including recruitment and selection and performance management) (b) review recruitment and selection policy and practice to ensure they are meritorious and transparent (c) strengthen pre-employment screening, vetting and probity processes. 

Recommendation 13 

That QCS develop and implement a formal first year correctional officer graduate program to minimise early exposure to higher-risk environments and provide greater support, training and oversight during initial operational placement. 

Recommendation 14 

That QCS review mandatory refresher training to include training that responds to the needs of the prisoner cohort and targets high-risk corruption areas. 

Recommendation 15 

That QCS develop a staff rotation policy to reduce corruption risk, promote professional development and enhance performance. 

Recommendation 16 

That QCS: (a) establish overtime policies and procedures to reduce opportunities for manipulation (b) review the staffing model in prisons to provide greater flexibility, reduce the need for overtime and support the recommendations proposed in this report (c) establish performance standards for overtime and include overtime as a key performance indicator for prison performance. 

Recommendation 17 

That QCS: (a) implement an agency-wide, electronic system to record conflicts of interest and management action n (b) develop and implement a declarable association policy. 

Recommendation 18 

That the Corrective Services Act 2006 be amended to permit an appropriate QCS delegate to direct a person (other than a prisoner) at or entering a prison to submit to a prescribed alcohol/drug test. 

Recommendation 19 

That QCS develop an integrity testing regime to identify and strengthen deficient systems and processes, and support the investigation of people suspected of engaging in corrupt conduct. 

Recommendation 20 

That the Corrective Services Act 2006 be amended to grant broader powers to search staff working in prisons. 

Recommendation 21 

That QCS establish a dedicated human source unit and review its human source management policy and process to comply with contemporary practice standards. 

Recommendation 22 

That QCS review property and exhibit management policies and practices to decrease corruption risk, improve evidentiary value and align with modern standards. 

Recommendation 23 

That QCS: (a) review closed circuit television coverage to reduce high-risk blind spots (b) replace outdated closed circuit television technology to ensure all cameras have the ability to record video footage. 

Recommendation 24 

That QCS: (a) increase the number of body worn cameras used in Queensland prisons (b) revise the body worn camera policy to clearly state when activation is mandatory. 

Recommendation 25 

That QCS increase video conference capacity in prisons to reduce the need to transport prisoners to court and health services. 

Recommendation 26 ( 

That QCS implement an electronic mail process to decrease the volume of mail entering prisons via the postal service. 

Recommendation 27 

That QCS: (a) replace the Integrated Offender Management System with a system that meets recognised information management and security standards (b) in the interim, and with priority, implement “remediation strategies” to reduce the risk that prisoner information can be inappropriately accessed and released (c) identify information management as a strategic risk. 

Recommendation 28 

That QCS: (a) establish an agency-specific Public Interest Disclosure policy and process (b) review the processes and supports available to witnesses and disclosers who are employees (c) improve complaint management processes (consistent with the recommendations made by the Queensland Ombudsman in 2016). 

Recommendation 29 

That QCS review prisoner complaint processes to: (a) improve prisoner understanding of complaint processes (b) increase prisoner confidence in the process (with specific objectives of providing confidentiality and reducing the fear of reprisal) (c) provide greater consistency across prisons. 

Recommendation 30 

That QCS: (a) broaden the remit of the Ethical Standards Unit to provide the following functions: prevention and early intervention, professional standards, integrity policy framework, complaints management, investigation, discipline system, witness support, critical incidents, covert operations, and risk management (b) review the resources, capabilities, systems and processes required to deliver this broader remit (c) implement a staffing model that reduces the risk that staff working in the Ethical Standards Unit will be captured by those who seek to influence the proper delivery of its functions (d) review the discipline process to improve timeliness and provide greater consistency for decisions (e) establish a discipline unit, reporting to the QCS Commissioner and independent from the Ethical Standards Unit, to deal with discipline matters and develop sanction matrices. 

Recommendation 31 (p. 46) That QCS: (a) establish, within the Ethical Standards Unit, dedicated intelligence staff to focus on staff corruption and integrity (b) align methodologies, systems and processes used to support the intelligence function with contemporary practice standards (c) centralise the intelligence function (see also Recommendation 5(f)) (d) review policies, systems and processes to appropriately secure intelligence information (e) review the intelligence establishment and rostering model to provide an increased level of service to prisons 

Recommendation 32 

That QCS and Queensland Police Service (QPS) collaboratively review the service delivery model used to investigate criminal offences in prisons. The revised model should: (a) adequately describe the role and function of the Corrective Services Investigation Unit to assist in performance reporting and review (b) ensure that only appropriate incidents are referred to the QPS for investigation (c) ensure that matters are assessed, investigated and resolved in a timely manner (d) maximise information sharing between QPS and QCS (e) reduce corruption risk for QPS investigators working in prisons (f) facilitate the use of innovative investigative methods.  

Recommendation 33 

The CCC recommends: (a) the establishment of a properly resourced Independent Inspectorate of Prisons (b) the development of nationally consistent inspection standards, cycles, methods and reporting templates (c) inspection reports be made publicly available.

Broke Territories?

Can an Australian Territory consistently spend beyond its revenue?

That's a question for constitutional lawyers, governance experts and others in contemplating a sobering NT report that indicates the Territory is spending over $1.5 billion pa ($4 million a day) more than the revenue it collects and is borrowing to meet the shortfall, with net debt projected to increase from $3 billion in 2017-18 to $35.7 billion by 2029-30.

The report - A plan for budget repair: Interim report – an independent assessment of the Northern Territory’s fiscal position and medium-term outlook - comments

What’s the problem? 

The Territory budget is in structural deficit, meaning there is a fundamental imbalance between receipts and expenditures that is not related to one-off or short-term factors. This problem will persist in the absence of a plan for doing business differently. 

How has this situation arisen? 

Over the past 20 years the Territory has incurred fiscal deficits not only during contractions in the economic cycle but also in times of expansion. This practice has complicated the budget and debt management task in the current economic downturn. When the government came to power in August 2016, the Territory had been enjoying the highest level of untied GST revenue since the GST commenced in 2000-01. However, in the following 18 months, encompassing the 2017 and 2018 Budgets, a total of $3.4 billion was wiped off the Territory’s share of GST between 2017-18 and 2021-22, without a corresponding reduction in the Territory’s expenditure needs. 

At the time of the 2018 Budget, the outcome for the Territory of the Productivity Commission inquiry into horizontal fiscal equalisation was unknown. However, following the passage of Commonwealth’s Treasury Laws Amendment (Making Sure Every State and Territory Gets Their Fair Share of GST) Act in November 2018, there is now greater certainty that the Territory’s GST revenue share will remain below historic trends over the medium term. Although the Commonwealth assistance and time-limited guarantees in the Act have reduced the decline to $2.4 billion from 2017-18 to 2021-22, this is still in excess of $500 million per annum, and the changes have effectively entrenched a significantly lower share of untied Commonwealth funding for the Territory for the foreseeable future. 

With a relatively small own-source revenue base, the Territory Government is reliant on the Commonwealth for $4 in every $5 of revenue and has little capacity to withstand fiscal shocks of this magnitude. 

The reduction in GST revenue is a major burden for the Territory’s finances. Unlike larger states that have more diverse and robust sources of other revenues, the magnitude of the reduction in the Territory’s GST is pronounced and the impact harder to defray. This fall in GST revenues has also coincided with a pronounced moderation in the Territory economy, reflecting the transition of one of the largest ever projects in the southern hemisphere, the Ichthys liquefied natural gas (LNG) project, from the construction phase with a peak workforce of over 10 000 to the operational phase with a workforce of around 400. 

The Territory has enjoyed the economic benefits of a succession of major projects since the Adelaide to Darwin railway project in the early 2000s, culminating in the Territory’s largest ever construction project (Ichthys). However, there are currently no major projects of a comparable scale to cushion the impact of the Ichthys transition on the Territory economy. While the Territory Government has sought to arrest the resultant economic and population impacts through increased infrastructure investment and economic stimulus measures, such as tourism marketing and promotion, and targeted housing industry support, it does not have the fiscal capacity to offset a decline in private investment of this magnitude. 

Historically, the growth of government operating expenses has consumed all revenues available to successive Territory governments. This has built an underlying expenditure base, which has become entrenched. Additionally, one-off revenues from asset sales have predominantly been used to fund a range of infrastructure stimulus and investment initiatives rather than retire debt. 

Increasing demand for government services, notwithstanding flat population growth, and rising community expectations regarding service standards have seen the cost of public services continue to grow despite the revenue declines. This trend has further compounded the Territory’s fiscal challenges. The current Territory Government has also faced unexpected expenditure demands such as the need to respond to the Royal Commission into the Protection and Detention of Children in the Northern Territory. The culmination of these events has placed the Territory Budget on a debt and deficit trajectory which is unsustainable. 

Why is it such a big deal? 

In 2018-19, the Territory is forecast to spend over $1.5 billion, or $4 million a day more than the revenue it collects, and is borrowing to meet the shortfall. If Territory Government spending continues to grow as it has in the past, the Territory’s net debt is projected to increase tenfold from $3.0 billion in 2017-18 to $35.7 billion by 2029‑30, with the net debt to revenue ratio increasing to around 320 per cent and the annual interest bill rising to almost $2 billion. Such an outcome would have severe economic consequences for Territorians. 

Since the 2016 Pre‑Election Fiscal Outlook, the Territory Government has made significant efforts to restrain expenditure growth through the introduction of cumulative savings and budget repair measures of around $830 million between 2017‑18 and 2021-22. Despite these measures, significant budget deficits are forecast across the forward estimates as expenditure has continued to grow due to increasing demand for government services (for example, health and child protection), unexpected costs associated with the Royal Commission, and costs associated with significant economic and infrastructure stimulus. 

If left unattended, the structural deficit will result in growth in the Territory’s debt that will undermine the confidence in the Territory economy and future governments’ flexibility to implement its policy objectives. 

A significant slowing in the rate of operating expenditure is needed urgently. While even more extreme measures to immediately halt the growth in debt could be advocated, they would be counterproductive to the Territory’s economic interests. To balance the competing priorities of supporting the Territory economy while returning the budget to balance, the Territory Government will need to take a medium-term approach to fiscal reform. This will require a new fiscal strategy supported by systemic reform to the public sector and how it operates. 

Successfully implementing a new fiscal strategy will require a resolute commitment by current and future governments and the broader community. The strategy will need to be supported by smarter approaches to resource allocation, a contemporised public service and greater accountability for expenditure effectiveness. Fiscal reform should focus on innovative solutions that increase the productivity of government services, making every dollar count towards better outcomes for Territorians. 

The scale of this issue is beyond normal electoral cycles. 

Scenarios for the future 

The interim report presents an independent assessment of the Territory Government’s financial position and medium‑term fiscal outlook, including scenarios for the period to 2030. It provides a plan for structural reform to return the budget to balance in a sustainable manner. 

Delivering meaningful and sustainable fiscal reform will require a reduction in the Northern Territory Public Sector’s operating cost growth. This can be achieved through reorganising how the public sector operates, enforcing greater discipline around meeting budget targets at the agency level, and looking at greater technological means to deliver services more efficiently. These reforms can be achieved while maintaining public sector employment levels and service delivery to remote areas.