Magna Carta, Bonnets and Bees

Noting Re Patrick Leo Cusack v Australian Electoral Commissioner [1984] FCA 328 regarding magical thinking about Magna Carta in connection with a forthcoming article on Australian sovereign citizens 

Spender J states

 This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 by Patrick Leo Cusack. 

2. The decision which he seeks to have reviewed is that made by Mr P. Taylor, who is the Divisional Returning Officer for the Division of Ryan. The decision is that Mr Cusack's nomination for the 1 December 1984 House of Representatives Election would not be accepted unless a deposit of $250.00 in legal tender or by banker's cheque was lodged with that nomination. That decision was made by Mr Taylor on 30 October 1984 and was confirmed by a letter dated 30 October handed to Mr Cusack yesterday, 5 November 1984. 

3. Mr Taylor in that letter makes it quite clear that he would not accept a nomination for the 1 December House of Representatives Election unless a deposit of $250.00 in legal tender or banker's cheque was lodged with the nomination. In so acting, Mr Taylor would be acting in accordance with the precise terms of sub-s. 170(c)(ii) of the Commonwealth Electoral Act 1918 ("the Act"), and it is also important to bear in mind that s.172 of the Act provides in sub-s. (1) that the nomination shall be rejected by the officer to whom it is made if, and only if, the provisions of, inter alia, s.170, have not been complied with in relation to the nomination. 

4. Mr Cusack in his material concedes that the decision has been taken in accordance with the particular provisions of s.170 and on its face would appear to be correct. 

5. His submissions essentially are four, the first of which is that in some way, which is by no means clear to me, there has been a breach of the rules of natural justice. In that respect none of the material before me indicates any such breach. I need not trouble myself any further with that particular ground. 

6. In relation to the three other grounds, they are that there has in some way been an improper exercise of power by Mr Taylor; alternatively, his decision involved an error of law, not immediately apparent; or that the decision was otherwise contrary to law. Each of these aspects of Mr Cusack's argument involve the same general thrust; namely, that the requirements of s.170, boosted as they are by the forfeiture provisions of s.173, are in conflict with either rights conferred or at least recognised by s.327 of the Act, or cardinal, old-established inherent rights which derive from the Magna Carta, or other long-standing statutory provisions. 

7. In respect, for instance, of his argument in relation to an improper exercise of power, Mr Cusack says that the making of a decision not to accept a nomination on the basis stated is an improper exercise of the power insofar as it fails to take relevant consideration into account in the exercise of the power, namely s.327, which is in conformity he says with cardinal, old-established and inherent statutes, particularly Cap. 29 of the Great Charter of Liberties. He says further that the decision, while appearing to be correct, involves a conflict between the provisions of ss. 173 and 327, and that the more general provision, s.327 of the Act, should prevail; and finally, that in relation to the decision being contrary to law, that the making of a decision which would involve conflict of the deposit and forfeiture provisions on the one hand with the electoral offences provisions and with the old-established and inherent statutes, in particular Magna Carta, on the other, is such that a decision based on s.170 would be unlawful. 

8. Involved in all of those submissions is the suggestion that a legislative provision that is in conflict with Magna Carta is for that reason invalid. 

9. I think it is necessary to make it as clear as I can to Mr Cusack and perhaps others that there has been involved in this whole approach a misconception of the constitutional provisions that apply to legislation passed by the Australian Parliament. Sir Samuel Griffith made it clear in Chia Gee v. Martin [1905] HCA 70; (1906) 3 CLR 649 that it is not open to argument that a law of the Commonwealth is invalid because it is not in conformity with Magna Carta. In that particular case, it was argued on behalf of Chinese immigrants, who had been charged with offences of being unlawful immigrants, that the language test requirement under the Immigration Restriction Act 1901 was invalid as being contrary to Magna Carta. The Chief Justice said at p.652-3:

A number of objections have been taken to the convictions in this case, all of which are unsubstantial. ... The first point made by Mr Le Mesurier was that the Immigration Restriction Act 1901 was unconstitutional, because its provisions were contrary to the provisions of Magna Charta, and the Statutes which had since confirmed it, and also inconsistent with certain treaties. The contention that a law of the Commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation. As to the objection that the provisions of the Act are invalid as being in conflict with treaties, it is sufficient to say that some day perhaps that question may be raised for decision, but it is not raised now.

His Honour makes it clear that an argument that a law is invalid because it is in conflict with Magna Carta is not a substantial one. His Honour then deals with the other point that it may be inconsistent with certain treaties in this manner: as to the objection that the provisions of the Act are invalid as being in conflict with treaties, it is sufficient to say, some day perhaps that question may be raised for decision but it is not raised now, and it may be the case that some Commonwealth legislation is invalid because it conflicts with treaties. 

10. So that at the core of the argument that has been addressed to me by Mr Cusack is a misconception as to the basis upon which Commonwealth legislation may be declared invalid, and the primary submission by Mr Cusack that Magna Carta is in some sense a guarantee that no legislation can be enacted in conflict with it is a fallacious one.

Spender J in Re Patrick Leo Cusack v Australian Electoral Commission [1984] FCA 367 states 

 The applicant seeks to review decisions made by Mr Phil Taylor, who is the Divisional Returning Officer for the division of Ryan, a federal electorate in the State of Queensland. The decisions which he seeks to have reviewed as particularised were, that the otherwise formally correct nominations of Messrs J.C. Moore, M.E. Foley, J.B.S.F. Peeters, and M.A. Crofts, for 1 December 1984 House of Representatives elections, were accepted as valid because individual deposits of $250 in "forms of money" described as either legal tender or banker's cheque were lodged with those nominations and conformed with ss.170 and 172(2) of the Commonwealth Electoral Act 1918 ("the Act"). 

2. The affidavit material of Mr Taylor indicates that he did in fact accept the nominations for those four candidates for the seat of Ryan and his affidavit asserts that those nominations complied with the requirements of ss.166 and 170 of the Act, and accordingly were accepted and not rejected. Mr Taylor further states that in respect of the candidates Moore and Foley, legal tender was tendered with respect to those nominations and that banker's cheques were tendered with respect to the nominations of Mr Peeters and Mr Crofts. 

3. Section 170 of the Act deems, amongst other things, that no nomination be valid unless it is accompanied, in the case of a person nominated as a member of the House of Representatives by $250 in legal tender or in banker's cheque. 

4. At the outset I was concerned as to whether Mr Cusack had standing to bring this application, but Mr Bickford, who appeared on behalf of the Australian Electoral Commission, took no point as to whether Mr Cusack could properly be described as a person aggrieved for the purposes of s.5 of the Administrative Decisions (Judicial Review) Act 1977. I referred in that regard to, first, Tooheys Ltd v. Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 and the observations by Ellicott J. at p 79, and further to the observations by Sir Nigel Bowen and Franki J. in Ricegrowers Co-operative Mills Ltd v. Bannermann [1981] FCA 211; (1981) 38 ALR 535. In the light, however, of the attitude expressed by Mr Bickford, nothing further need be said as to Mr Cusack's standing. 

5. The second matter of a preliminary nature that I wish to mention is that after Mr Cusack had concluded his submissions on Tuesday morning of this week and at which point I adjourned the further hearing of his application until this morning, I was concerned that if in fact anything were to be done by way of reviewing those decisions, each of the four persons named whose nomination were the subject of the decision ought properly to be made parties. In the light, however, of the decisions to which I have come, I have not had to consider the necessity of those persons having the right to be heard in respect of these applications. 

6. The third matter by way of preliminary that I ought to mention is this: Mr Cusack and an associate of his, Mr Skyring, have in a number of proceedings, both in the Supreme Court, in the Federal Court, and in the Full Court of this court, sought, by one means or another, to pursue the validity of the currency and banking system in Australia. The methods by which that fundamental objective has been pursued have varied, and one might be pardoned for the view that each of them, in their own way, has been pursuing what might colloquially be called "bees in their bonnets" about the validity or otherwise of the method by which legal obligations are discharged in this country.

Queensland Hansard of 29 September 2005 in reporting on debate about the Vexatious Proceedings Bill stated

There are currently 11 persons registered as vexatious litigants with the Supreme Court of Queensland. I will table the list of those persons, but they are Dieter Soegemeier, Robert van Haeff, Leslie Fritz, Alan Skyring, Donald Cameron, John Abbott, Peter Gargan, John Sargent, William Tait, Richard Gunter and Geoffrey Bird. I am informed that those names are on the Supreme Court web site for obvious reasons. Many of them have acted in concert with each other and with other litigants in other places. Their litigation will very frequently involve courts such as the High Court and, of course, the Court of Disputed Returns. 

The litigants on the register have in nearly all cases represented themselves, which raises the difficulty that the relevant court must decipher their claims and make an attempt to determine their legal rights. This leads to inevitable delay and the obvious consequence of tying up the time of the courts and delays to other litigants in the litigation process. 

One of these litigants is Alan George Skyring who, in reliance on the Constitution and the Magna Carta, seeks to have a declaration from the courts that it is beyond the federal parliament’s constitutional power to legislate to make paper money for legal tender. He has brought numerous proceedings before the High Court of Australia, the Supreme Court of Queensland and the Queensland Court of Appeal. 

Mr Skyring operated in concert with another litigant, Mr Patrick Leo Cusack, who is not a declared vexatious litigant under the Supreme Court in Queensland although on 27 August 1992 he was registered as such in the High Court along with Mr Skyring under the High Court Rules. In January 1985 Mr Cusack attempted to issue writs against several Commonwealth ministers. His January 1985 request was refused in July 1985. At the same time, a similar application by Mr Skyring was refused. 

In November 1988 Mr Cusack attempted to apply for a summons against the Attorney-General of Queensland, which was rejected in November 1988. He applied to have these rejections reviewed in March 1989, May 1991 and July 1991, being rejected each time and on the last occasion by the full bench of the High Court. The substantial point raised by Mr Justice Toohey in declaring both Mr Skyring and Mr Cusack to be vexatious litigants was that their applications for proceedings were persistent in trying to bring before the court the same argument that had already been decided against them. 

The court can act on its own volition, but this bill allows private individuals who are the subject of vexatious litigation to make application to have the person declared a vexatious litigant. In other words, private people can now bring that application. Some of the bodies and persons sued by one vexatious litigant, Mr William Peter Tait, include the Townsville City Council—and Mr Deputy Speaker may well be familiar with this matter—officers of the Anti-Discrimination Commission of Queensland, the James Cook University Student Union, Citigold Corporation and a Small Claims Tribunal referee, among others. 

In a case before the Court of Disputed Returns, brought by a Richard Stephen Gunter, some of the respondents included the Governor-General, the Australian Electoral Commission and the Premier of Queensland. This case was brought in conjunction with Mr Skyring and four other litigants, each of whom was enrolled in a different Brisbane federal electorate contesting the constitutional legitimacy of the 2001 election on the basis that candidates had paid their nomination deposits in paper money. Two of these people were appearing as Citizens of the Independent Sovereign State of Australia, with one of the two purportedly being the state’s chief justice. All of Mr Gunter’s cases ultimately stem from an incident in Ipswich where he was convicted of driving an unlicensed truck. Two years later he was convicted of walking an unleashed dog. This provoked three years worth of appeals and over 20 proceedings, some of which sought leave to have Mr Skyring appear as an amicus curiae, despite the fact that he had no legal training.

HealthEngine

In 'Unhealthy Practice: Understanding the ACCC’s action against HealthEngine' (2019) 16(6) Privacy Law Bulletin 103 I considered egregious misbehaviour by the HealthEngine service (noted eg here and here) which I highlighted in preceding years. 

Tellingly, that misbehaviour was addressed by the Australian Competition and Consumer Commission under the Australian Consumer Law rather than by the Office of the Australian Information Commissioner under the Privacy Act 1988 (Cth).

The Federal Court in Australian Competition and Consumer Commission v HealthEngine Pty Limited [2020] FCA 1203 has now ordered that HealthEngine pay $2.9 million in penalties for engaging in misleading conduct in relation to the sharing of patient personal information to private health insurance brokers and publishing misleading patient reviews and ratings. 

 HealthEngine admitted that between 30 April 2014 and 30 June 2018 it gave non-clinical personal information, such as names, dates of birth, phone numbers, email addresses, of over 135,000 patients to third party private health insurance brokers without adequately disclosing this to consumers. HealthEngine earned over $1.8 million from its arrangements with private health insurance brokers during that period. 

In what we can contextualise as fake news HealthEngine admitted that between 31 March 2015 and 1 March 2018, it did not publish around 17,000 reviews and edited around 3,000 reviews to remove negative aspects or embellish them. HealthEngine also admitted that it misrepresented to consumers the reasons why it did not publish a rating for some health or medical practices.

In Australian Competition and Consumer Commission v Service Seeking Pty Ltd [2020] FCA 1040 the Federal Court of Australia has found that Seeking Service engaged in misleading or deceptive conduct in operating a website and mobile application that served as platform for services. The company was prohibited for three years from publishing reviews without written express consent of person providing a review and was ordered to pay a fine of $600,000.

Powers of Attorney

The South Australian Law Reform Institute June 2020 discussion paper regarding the Institute's Review of the Role and Operation of Powers of Attorney in South Australia features the following consultation questions 

 History and Use of Powers of Attorney 

 

1. How widely are EPAs used? 

 

2. How can the use of EPAs be promoted? 

 

3. What are the barriers to making EPAs? 

 

4. How does the POA Act compare to other Powers of Attorneys laws in Australia? What are its benefits/disadvantages? 

 

5. Should guiding principles be introduced in the POA Act? 

 

6. How can the POA Act be simplified? 

 

7. What are the issues with EPA forms? 

 

8. Should it be mandatory to use the standard EPA forms? 

 

9. Are the formal requirements for creating EPAs suitable? 

 

10. How many witnesses should be required to witness an EPA document? 

 

11. Should witnesses have to explicitly attest to the principal’s capacity? 

 

12. What qualifications (if any) should a witness hold? 

 

13. Who should be disqualified from being a witness? 

 

14. How can witnesses be supported in their role? 

 

Legislative Framework 

 

1. How should capacity be defined? 

 

2. Should the test in the 1870 case of Banks v Goodfellow continue to be the relevant test for assessing capacity? 

 

3. Who should be making the capacity assessment for the creation and activation of an EPA? 

 

4. How can the principal’s rights be protected when assessing capacity? 

 

5. Should there be principles to guide capacity assessment? 

 

6. What evidence should be required to create or activate an enduring Power of Attorney? 

 

7. Is there sufficient guidance and support for those making the assessment? 

 

Duties of Attorneys 

 

1. Who is an appropriate attorney? 

 

2. How many attorneys should a principal be able to appoint? 

 

3. What are the issues arising with multiple and alternative attorneys? 

 

4. What are the powers and duties of attorneys and are they understood by the public? 

 

5. How can attorneys’ understanding of their role, powers and duties be increased? 

 

6. Should there be requisite competencies that an attorney should demonstrate prior to appointment?  

 

7. Should it be mandatory to appoint two attorneys—one of whom is a professional (allied health)? 

 

8. Should any of the following become statutory limitations of an attorney’s power?

a) the principal and/or another nominated individual, receive copies of account statements on a regular basis; 

b) prior to certain transactions, such as sale of property, the attorney consult with nominated persons; 

c) that the principal’s finances be audited annually, with a report sent to nominated persons; 

d) that the principal undertake a capacity assessment, once deemed legally incapacitated; or 

e) other? 

 

Legal Remedies for the Abuse of an Enduring Power of Attorney / Practical Measures 

 

1. What is the level of abuse of EPAs? 

 

2. How are EPAs abused? 

 

3. Who are the victims? 

 

4. Who are the perpetrators? 

 

5. How can abuses of EPAs be better detected, reported and investigated? a. Should a referral system as outlined in the ACD Act be applied in the context of EPAs? 

 

6. What mechanisms can be implemented to provide oversight of an attorney's conduct, to identify and address abuse? 

 

7. What measures should be implemented to prevent abuses? 

 

8. How can data collection processes be improved to obtain accurate figures oabuse? 

 

9. What measures can be adopted to better protect vulnerable populations, specifically CALD individuals and Indigenous and Torres Strait Islander individuals? 

 

10. Are the current legal remedies adequate? 

 

11. How might the existing legal remedies be improved/reformed in order to prevent abuse? 

 

12. Are the practical remedies being used? 

 

13. How useful are the practical remedies in preventing abuse? 

 

14. Should any of the practical remedies become a legal remedy? 

 

Register 

 

1. Should South Australia introduce a compulsory register of EPAs? 

 

2. Should registration be national or state-based? 

 

3. What are the benefits and risks of introducing a register? 

 

4. Should registration be compulsory upon initial creation or when the principal loses decision-making capacity? 

 

5. Should there be a notification scheme as in England/Wales where designated persons are notified once the attorney attempts to first exercise their powers? 

 

6. What information should be included in the register? 

 

7. Who should have access to the register? 

 

8. Where should the register be located? 

 

9. Will the costs of registration deter principals from creating EPAs? 

 

10. Should registration be online and/ or in person? 

 

11. Should the registration body take on the role of ensuring EPAs are correctly executed? 

 

12. Will the register help to detect fraud?

MyHR

'Privacy concerns of the Australian My Health Record: Implications for other large-scale opt-out personal health records' by Patrick Cheong-Iao Pang, Dana McKay, Shanton Chang, Qingyu Chen, Xiuzhen Zhang and Lishan Cui in (2020) Information Processing and Management comments 

Personal health records offer the convenience of accessing medical history and personal health information, but also raise a range of privacy concerns which affect their adoption. In 2018, the Australian nationwide personal health record, My Health Record (MHR), was changed to an opt-out model, meaning that users are automatically enrolled unless they opt out. This significant change sparked wide-ranging and vociferous discussions of the privacy concerns of MHR on Twitter thus provided a lens into people's concerns. This lesson offers useful insights for improving MHR and better implementing future large-scale health records. By using qualitative coding and topic modeling on Twitter data, we categorized the stakeholders who participated in the discussions and the privacy concerns expressed. We have identified 10 categories of stakeholders and 9 types of privacy concerns in the discussions, and our analysis finds that these stakeholder groups focused on different privacy aspects of MHR. This work implies that, for future provisions of similar systems, it is important to involve these stakeholders in the design and address their privacy concerns early, as they are interested in providing input and their strong opinions may influence the uptake of such systems. Based on the lesson gleaned from this case, we propose that system owners can proactively communicate the privacy and the security aspects of their PHRs with different parties on social media. We also highlight some suggestions for improving the consent model and third-party access to personal health records in this paper.

Health Goods Regulation

The House of Representatives Standing Committee on Health, Aged Care and Sport is now inquiring into 

the approval processes for new drugs and novel medical technologies in Australia, with a particular focus on those for the treatment of rare diseases and conditions where there is high and unmet clinical need. 

This inquiry will consider the following topics 'so that Australia continues to be well positioned to access new drugs and novel medical technologies in a timely manner and respond to emerging global trends'

•  The range of new drugs and emerging novel medical technologies in development in Australia and globally, including areas of innovation where there is an interface between drugs and novel therapies; 
• Incentives to research, develop and commercialise new drugs and novel medical technologies for conditions where there is an unmet need, in particular orphan, personalised drugs and off-patent that could be repurposed and used to treat new conditions; 
• Measures that could make Australia a more attractive location for clinical trials for new drugs and novel medical technologies; and 
• Without compromising the assessment of safety, quality, efficacy or cost-effectiveness, whether the approval process for new drugs and novel medical technologies, could be made more efficient, including through greater use of international approval processes, greater alignment of registration and reimbursement processes or post market assessment.

Bodycams

'Making the Body Electric: The Politics of Body-Worn Cameras and Facial Recognition in the United States' by Jacon Hood in (2020) 18(2) Surveillance and Society 157 comments 

This paper explores the rapid deployment of police body-worn cameras (BWCs) and the subsequent push for the integration of biometric technologies (i.e., facial recognition) into these devices. To understand the political dangers of these technologies, I outline the concept of “making the body electric” to provide a critical language for cultural practices of identifying, augmenting, and fixing the body through technological means. Further, I argue how these practices reinforce normative understandings of the body and its political functionality, specifically with BWCs and facial recognition. I then analyze the rise of BWCs in a cultural moment of high-profile police violence against unarmed people of color in the United States. In addition to examining the ethics of BWCs, I examine the politics of facial recognition and the dangers that this form of biometric surveillance pose for marginalized groups, arguing against the interface of these two technologies. The pairing of BWCs with facial recognition presentsa number of sociopolitical dangers that reinforce the privilege of perspective granted to police in visual understandings of law enforcement activity. It is the goal of this paper to advance critical discussion of BWCs and biometric surveillance as mechanisms for leveraging political power and racial marginalization.

Hood states 

On December 15, 2017,an Austin Police Department (APD) officer opened fire on a stabbing suspect outside of a Central Austin apartment complex. The entire incident was recorded by the officer’s body-worn camera (BWC). Two days later, in an unrelated incident, another APD officer fired at a suspect who, while walking toward the officer, refused to drop a knife. This event was also recorded by the officer’s BWC. Almost immediately, APD began analyzing the BWC footage in order to garner an “objective” viewpoint. Interim Police Chief Brian Manley said that “it was fortunate that our officers that were involved had the body-worn camera because they really did provide a view that we would not have had otherwise,” because prior to the deployment of BWCs in Austin, Texas, he would have had to “just try to put together the best assessment of what had happened” (Wilson 2017). 

 

BWCs have become the technological norm for police departments across the United States, employed with the goal of obtaining a similar third-party perspective as in the incidents in Austin (Sousa, Miethe, and Sakiyama 2015). Police BWCs emerged amid a cultural panic over police violence towards people of color (largely unarmed black people), promising to reduce police misconduct and foster transparency. Yet the growth of interest in these devices has been met with worry regarding their privacy implications as well as overly optimistic hopes that they will reduce police misconduct and improve officer-community relations (Nielsen 2016; Phillips 2016; Thomas 2017; Fan 2018). Accompanying this are evolving efforts to integrate biometric technologies, such as facial recognition software, into existing BWC practices (Harwell 2018; van Schelle 2018). Beyond the legal concerns about these advancements are the normative concerns about using the body as the target of policing. If we consider the history of the physical body as a site of domination for marginalized groups, then practices of making these bodies more visible becomes all the more perilous. The central danger becomes the potential for this new model of policing to (re)define which people’s bodies are codified as authorized and unauthorized in terms of criminality. If the proposed duty of police is to investigate, solve, and prevent crime, then the target of policing practice is the “criminal” as defined by their socio-legal transgression(s). Policing becomes more dangerous when individuals are broken down and reinterpreted in terms of the information provided by their body, instead of as agential social beings. 

 

The first section of this article lays out the guiding theoretical framework of “making the body electric” to describe cultural practices of entangling technology with the body. Drawing upon ideas from Simone Browne(2010, 2015), Bryan Pfaffenberger(1992), and Michel Foucault(1975, 1976, 1978), I propose this theory to address the various ways that connecting the physical body with technology contorts social power, particularly around race. The second section of this article describes the development and employment of BWC devices and the subsequent push for integration of biometric capabilities. This section reviews the major literature on the devices’ ability to decrease police misconduct, foster department transparency, and arouse public support for their use.In the third section,I build my analysis of the sociopolitical consequences of BWC and biometric technologies, with special attention toward facial recognition analysis, usingthe lens of making the body electric. This paper merges empirical and theoretical work on BWCs with emerging conceptual, discursive, and technical work on facial recognition to outline the dangers of what may occur if these technologies collide

Knocking

Last years ago I had a piece on privacy and trespass in (2019) 16(3/4) Privacy Law Bulletin that included a discussion of the NT case of Roy v O'Neill. It is thus a delight to see the excellent 'Police Doorknocking in Comparative and Constitutional Perspective: Roy v O’Neill' by Julian R Murphy in (2020) 42(3) Sydney Law Review, which comments that the judgment

raises the question of whether a police officer can knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so. In order to resolve that question, the High Court will need to develop, or at least refine, the common law relating to trespass and implied licences. This column explores two issues relevant to the development of the common law in this area, namely: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia.

Murphy argues 

The questions raised by Roy v O’Neill, currently before the High Court of Australia, are so fundamental that it is surprising they have not previously been definitively answered. Can a police officer knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so? In this situation, can the police officer claim the cover of the same implied licence extended to the door-to-door salesperson or the Jehovah’s Witness? Or is the police officer’s attendance so different that they are a trespasser? Unsurprisingly, the parties’ written submissions on these questions focus on the Australian case law of trespass and implied licences. The parties join issue on the principles to be extracted from the authorities relating to dual purposes for attendance and multiple occupancy residences. The authorities on these issues are not entirely in agreement, and thus it appears likely that the Court will be required to develop the common law in order to resolve the dispute in Roy. This column raises two considerations — neither considered in detail by the parties — that ought to inform the Court’s development of the common law in this area: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia. Ultimately, it is suggested that the High Court should develop the common law cognisant of the scope for reasonable disagreement as to the balance to be struck between public safety, personal privacy and individual property rights. Such an approach has constitutional considerations to recommend it where, as in the present case, the universalising force of the single common law has the capacity to render obsolete the balances struck by different state and territory legislatures within the Federation.

Online Students and Academic Evaluation

The Office of the Victorian Information Commissioner (OVIC) has published a report on the use of digital learning tools in Victorian government primary schools, and how privacy issues are managed when these tools are selected and used. 

The report notes that state schools are required by the Information Privacy Principles (IPPs) in the Privacy and Data Protection Act 2014 (Vic) to maintain the privacy of children when using tools that will collect, hold, manage, use, disclose or transfer personal information about those children.  OVIC collected information from the state Department of Education (DET) and four government primary schools to understand how digital learning tools are being used from Prep to Year 6. It found that 

digital learning tools were a feature of students’ everyday classroom life. The spread of COVID-19 has forced many Victorian schools to deliver lessons remotely, and schools have been increasingly reliant on these tools. 

Schools are obliged to consider privacy when selecting digital learning tools. However, in some cases schools are selecting and using digital learning tools without properly considering privacy risks. 

 

OVIC has called on DET to provide more support to schools to help them protect student privacy. It concludes that schools would benefit from more assistance to ensure they comply with their privacy obligations. 

 This could involve providing more technical support and improving communication with parents and carers on the use of digital learning tools. 

Addressing privacy risks associated with digital learning tools and improving communication with parents and carers will increase levels of trust in the community. Improving public trust will enhance the effectiveness of digital learning tools by helping parents and carers feel more confident in using these tools.

The report indicates

1. Primary schools choose which apps and web-based learning tools to use in their schools 

Apps and web-based tools are used widely in Victorian government primary schools. They are generally used for four main purposes: Teaching and learning; Communicating with parents and carers; Assisting teachers to plan and share resources; and Assessing students against school curriculum. DET is responsible for managing Victorian government schools. DET purchases licences for some tools in bulk and offers them to schools. However, in addition to this, schools are free to choose other tools that suit the needs of the children at their school. Decisions about which apps and tools will be used by each year level is usually decided and approved within a school prior to the start of the school year. Examples of the tools used by primary schools in Victoria are listed in the examination report. 

2. Schools have difficulty assessing the privacy risks for all the digital learning tools they use 

Making sure children’s personal information is protected is a complex challenge that needs to be addressed. This is especially important as Victorian schools are currently relying on online teaching and digital learning tools during the Covid-19 pandemic. 

OVIC’s examination revealed that schools are dealing with competing demands, which make it difficult for them to complete a Privacy Impact Assessment (PIA) for every app or tool they consider using. A PIA document is a thorough assessment of the privacy risks posed by a project. 

DET told OVIC that it sees its role in ensuring schools handle personal information appropriately as key. In the past 12 months DET has revised its PIA template to better assist schools to carry out this risk assessment process and put more resources into privacy support for schools. 

For guidance on the use of digital learning tools in Victorian government schools, see DET’s Being online at home – tips for parents and carers. 

3. Managing privacy risks is a shared responsibility 

There are several parties involved in the protection of primary school aged children’s information privacy including DET; schools; and parents and carers. DET assesses the privacy risks of the apps they provide to schools. DET also provides guidance and training to schools about privacy. 

Schools are responsible for assessing the privacy risk of apps considered for use that are not on DET’s list of provided apps and tools. Schools are also responsible for sending parents and carers information notices and opt out forms where these are required. 

Parents and carers are responsible for considering the information provided to them by schools and deciding whether to opt out of services where this is an option. Parents and carers also have an important role in educating their children about privacy and protecting themselves online.

'Availability of cookies during an academic course session affects evaluation of teaching' by Michael Hessler, Daniel M Pöpping, Hanna Hollstein, Hendrik Ohlenburg, Philip H Arnemann, Christina Massoth, Laura M Seidel, Alexander Zarbock and Manuel Wenk in (2018) 52(10) Medical Education 1064-1072 notes 

 Results from end-of-course student evaluations of teaching (SETs) are taken seriously by faculties and form part of a decision base for the recruitment of academic staff, the distribution of funds and changes to curricula. However, there is some doubt as to whether these evaluation instruments accurately measure the quality of course content, teaching and knowledge transfer. We investigated whether the provision of chocolate cookies as a content-unrelated intervention influences SET results. 

Methods 

We performed a randomised controlled trial in the setting of a curricular emergency medicine course. Participants were 118 third-year medical students. Participants were randomly allocated into 20 groups, 10 of which had free access to 500 g of chocolate cookies during an emergency medicine course session (cookie group) and 10 of which did not (control group). All groups were taught by the same teachers. Educational content and course material were the same for both groups. After the course, all students were asked to complete a 38-question evaluation form. 

Results 

A total of 112 students completed the evaluation form. The cookie group evaluated teachers significantly better than the control group (113.4 ± 4.9 versus 109.2 ± 7.3; p = 0.001, effect size 0.68). Course material was considered better (10.1 ± 2.3 versus 8.4 ± 2.8; p = 0.001, effect size 0.66) and summation scores evaluating the course overall were significantly higher (224.5 ± 12.5 versus 217.2 ± 16.1; p = 0.008, effect size 0.51) in the cookie group. 

Conclusions 

The provision of chocolate cookies had a significant effect on course evaluation. These findings question the validity of SETs and their use in making widespread decisions within a faculty.

Australian Media Diversity

The Who Gets To Tell Australian Stories? report by Media Diversity Australia is stated as

 the first comprehensive picture of who tells, frames and produces stories in Australian television news and current affairs. It details the experience and the extent of inclusion and representation of culturally diverse news and current affairs presenters, commentators and reporters. It is also the first forensic examination of how our media treats cultural diversity at the workplace level. 

Media Diversity Australia (MDA) is 'a not- for-profit nationwide organisation run by journalists and communications professionals who are working to make our news media more reflective of our culturally and linguistically diverse Australia'.

The report's purpose is to consider:

• Why is there an under-representation of cultural diversity in Australian television news and current affairs? 
• Why does an under-representation of cultural diversity in our media matter? 
• Who gets to report on, present and frame news and current affairs stories in Australia? 
• How does a lack of cultural diversity affect the way news and current affairs is reported and framed? 
• How do senior executives, journalists and producers value cultural diversity, including its impact on news content? 
• What strategies are in place, if any, to improve cultural diversity in media organisations? 

The authors comment

Based on three data sets and a series of qualitative interviews, we identified a distinctive gap in representation between those reporting Australia’s news and current affairs and the broader Australian population. 

 

Firstly, we examined 81 news programs over two weeks in June 2019 (Appendix 1). This equalled approximately 19,000 news and current affairs items broadcast across free-to-air television. We categorised 270 presenters, commentators and reporters who presented news across Australia during the two-week period. Our study reveals that in terms of frequency of appearance on screen, more than 75% of presenters, commentators and reporters have an Anglo-Celtic background, while only 6% of presenters, commentators and reporters have either an Indigenous or non-European background. Secondly, in June 2020, more than 300 television journalists completed a survey examining their perception of cultural diversity. More than 70% of participants rated the representation of culturally diverse men and women in the media industry either poorly or very poorly. In addition, 77% of respondents with diverse backgrounds believe having a diverse cultural background is a barrier to career progression. 

 

Third, using publicly available information we examined the cultural backgrounds of editorial leaders in television newsrooms, as well as the composition of television network boards. 100% of free-to-air television national news directors in Australia have an Anglo-Celtic background (and they are also all male). The board members of Australian free-to-air television are also overwhelmingly Anglo-Celtic. Within this group of 39 directors, there is only one who has an Indigenous background and three who have a non-European background. 

 

This is in a nation where an estimated 58% of Australians have an Anglo-Celtic background, 21% have a non-European background, 18% have a European background and 3% have an Indigenous background. 

 

The final component of our study consisted of in-depth interviews with a range of senior news and current affairs leaders from all free-to-air networks. These interviews revealed varied levels of understanding of cultural diversity. Most leaders recognised that their outlet failed to reflect their audience, but there remains ambivalence towards having formal diversity and inclusion policies. 

 

When compared with the news media in the US and UK, the Australian media lags on both the representation of diversity and on organisational responses to the issue. 

 

It is clear that Australian television news and current affairs media does not represent all Australians and this affects the way stories are told and framed. It has been almost three decades since the 1991 National Inquiry into Racist Violence by the then Human Rights and Equal Opportunity Commission raised concerns about the lack of diversity in the media leading to inadequate representation of significant sections of the Australian public. The Inquiry recommended media organisations develop and implement policies to encourage the recruitment and advancement of Indigenous and non-English speaking journalists within the industry, noting that “the employment of more people from Aboriginal and non-English speaking backgrounds in the media industry generally would help to sensitise the media to issues of concern to these groups and contribute to more informed and more realistic reporting.” 

 

Yet, there have been few attempts in the intervening decades to increase the representation and voice of cultural diversity in the media. Having more representative newsrooms requires a serious long-term commitment, leadership and a cultural change in news and current affairs. This should include the meaningful collection of data on cultural diversity among staff, the establishment of targets to increase cultural diversity in the talent pipeline and the senior management suite as well as recognition of both the civic and economic benefits of a more culturally diverse media. 

 

This research project, initiated by the not-for-profit group Media Diversity Australia (MDA), is the first in-depth study of the level of cultural diversity in Australian broadcast television news and current affairs. 

 

Television is a visual medium – one that literally shows us who we are and represents us as people and a nation. News and current affairs purports to identify and tell key stories about issues of importance to all Australians. Yet, as this report shows, those stories have been reported, selected and produced by an overwhelmingly Anglo-Celtic workforce. 

 

Who Gets To Tell Australian Stories? presents data and perspectives on cultural diversity in Australian free-to-air news and current affairs television. It establishes a baseline for future comparison. It offers a rationale for why cultural diversity matters on both economic and social levels and makes recommendations on how networks can improve their cultural diversity. 

 

Our work extends the Leading for Change research published in 2016 and 2018 by the Australian Human Rights Commission (AHRC), which challenged Australians “to do better in making the most of the talents in our multicultural nation”. It noted that Australia does not collect comprehensive data on cultural diversity within its organisations and institutions. 

 

The Leading for Change reports highlighted the lack of cultural diversity within senior leadership across Australian business, politics, government and our universities. It is therefore vital that independent research is conducted to benchmark the state of play in other institutions, including our media which is our Fourth Estate and critical to the health of Australia’s democracy. Previous research has shown that Australia lags severely behind other similar nations when it comes to people of cultural and linguistically diverse (CALD) backgrounds being represented in the media. Cultural institutions also fare poorly: a Diversity Arts Australia study (2019) found that the arts and cultural sectors also had poor representation of CALD communities. 

 

A lack of cultural and geographic diversity in the Australian media workforce was identified in PwC’s Who’s the fairest of them all? study (2016). It found that 82.7% of the Australian entertainment and media workforce were monolingual, speaking only English at home, and that 37% of the workforce lived in Sydney, with the second highest concentration living in Melbourne. 

 

Who we see on television is meant to be a mirror of who we are: from the anchors to those reporting the news. Just as important is who selects the stories we see: those ‘behind the camera’ making decisions, prioritising stories and framing the narratives that tell those stories. The Who Gets To Tell Australian Stories? project proceeds from the premise that a culturally diverse media workforce is a stronger workforce. As McKinsey highlighted in its Diversity wins - How inclusion matters report (2020), there are clear and multiple benefits of diversity, and of getting inclusion right. For the news industry in Australia, a culturally diverse workforce would help ensure that all Australians feel represented in the way stories are sourced, told and prioritised. It would enable the telling of a broader range of stories, with greater relevance to our increasingly diverse audiences. 

 

Our findings indicate that we have an extraordinarily long way to go in addressing that challenge.

Retractions

'How do academia and society react to erroneous or deceitful claims? The case of retracted articles’ recognition' by Hajar Sotudeh, Nilofar Barahmand, Zahra Yousefi and Maryam Yaghtin in (2020) Journal of Information Science comments 

Researchers give credit to peer-reviewed, and thus, credible publications through citations. Despite a rigorous reviewing process, certain articles undergo retraction due to disclosure of their ethical or scientific deficiencies. It is, therefore, important to understand how society and academia react to the erroneous or deceitful claims and purge the science of their unreliable results. Applying a matched-pairs research design, this study examined a sample of medicine-related retracted and non-retracted articles matched by their content similarity. The regression analysis revealed similarities in obsolescence trends of the retracted and non-retracted groups. The Generalized Estimating Equations showed that citations are affected by the retraction status, life after retraction, life cycle and the journals’ previous reputation, with the two formers being the strongest in positively predicting the citations. The retracted papers obtain fewer citations either before or after retraction, implying academia’s watchful reaction to the low-quality papers even before official announcement of their fallibility. They exhibit an equal or higher social recognition level regarding Tweets and Blog Mentions, while a lower status regarding Mendeley Readership. This could signify social users’ sensibility regarding scientific quality since they probably publicise the retraction and warn against the retracted items in their tweets or blogs, while avoiding recording them in their Mendeley profiles. Further scrutiny is required to gain insight into the sensibility, if any, about scientific quality. The study’s originality relies on matching the retracted and non-retracted papers with their topics and neutralising variations in their citation potentials. It is also the first study comparing the groups’ social impacts.

The authors conclude 

Although scholars have to pursue the most valid and reliable research design to achieve the most truthful knowledge, they may intentionally or unintentionally report fallible or deceptive knowledge. The misconducts or mistakes can be positioned on a severity continuum from innocuous (e.g. gift authorship, duplicated publication and salami effect) to crucial (e.g. data making and fabrication) [92]. Recently, the scientific community has been experiencing an increase in scientific fraud which is believed to have roots in the competitive atmosphere of science characterised by ‘publish or perish pressure’ [93], researchers’ ambitions and financial needs, scientific hubris [92,94], pressure to publish in ‘high impact’ journals [58], lack of research funds and the proliferation of predatory OA journals [95]. Fraud and deceit in medicine are tightly related and directly detrimental to human well-being and health and are, therefore, considered as an ‘evolving type of crime’ [96]. Consequently, any mistakes, either intentional or inadvertent, ought to be cancelled out as soon as detected. Retraction is a mechanism expected to offset the negative consequences of scientific misconduct and mistakes. This gives rise to the question of how the mechanism has been successful in achieving its ultimate goals. According to research findings, withdrawn papers continue to receive citations [94,97]. However, no studies were found to compare the retracted papers with their non-retracted peers dealing with the same topics. To re-investigate the phenomenon, the present study used a matched-pairs research design to compare the obsolescence trends and citation counts of the retracted and non-retracted papers. The results of the regression analyses showed that the retracted and non-retracted groups of articles show similarities in their obsolescence trend, in that both reach their peak points in the same ages (third year of publication) and adhere to an exponential model in their annual trends after the peaks (Figure 1). The former group achieves its peak at a considerably lower point, although it shows a rather positive increasing trend in their Citation Geo-Mean before retraction. However, the group starts to get obsolete after retraction with an even more accelerated pace compared with that of its non-retracted rival group 

The results of the GEE analyses revealed that the traditional citation counts of the papers in the sample are affected by their retraction status, life cycle, life after retraction and average JIF, which is in line with the existing knowledge [2,14,98]. The positive effect of the citation age relative to the retraction date reveals that the later a paper is retracted, the higher its citation counts are. However, it is not a strong element. Instead, according to the B coefficients of the model, the ‘non-retracted’ and ‘after retraction’ categories are the strongest factors which positively predict the citation quantity. The pairwise comparison of the factors revealed that the non-retracted papers are higher in their citation counts compared with their retracted peers either before or after their retraction. Although both groups experience an increase in their citations in the second phase of their lives (i.e. after retraction), the retracted papers are lower in their citation quantity even in this phase. 

Overall, according to the obsolescence trend that continues at a faster pace after retraction for the retracted papers, one may conclude that the scientific community starts to reduce recognising the papers after the public announcement of the fallibility of the claims. In other words, the retraction mechanism relatively succeeds in preventing the spread of the fallible information. However, the fact that the citations to the retracted papers are higher in number after retraction compared with those received in before-retraction phase reveals that the retraction mechanism does not come to completely eradicate, but to attenuate the negative consequences of the erroneous and worthless outputs. The situation seems to be the same as reported in 1990 by Pfeifer and Snodgrass [60], who observed the citations to the retracted papers to be reduced, but not ‘effectively purged’. 

Low quality of papers could not be completely hidden from the sharp eyes of judicious scholars. The relatively fewer citation counts received by the retracted papers before retraction compared with their non-retracted peers – either in the same period or in the after-retraction phase – can witness the existence of some already withheld potential citations. Consequently, why the withdrawal of the papers fails to orient the scientific community towards the complete eradication may rely on somehow inevitable and shallow citations caused by such factors as coincidence and negligence. On the one hand, some of the citing papers may be accepted or published at the same time that their cited articles are announced to be retracted. Therefore, the citation would be inevitably released before or at the time of the authors’ awareness of the official announcement of the retraction. On the other hand, the ongoing citation to the retracted papers can be attributed to some kind of superficial impact. As scholars are not necessarily scrupulous and conscious in their citation habits, they may choose and cite easily accessible items, rely on the most visible and the shortest representation of an item (e.g. abstracts, second-hand citations and snippets) without digging deep into its details, tactically cite (e.g. perfunctory citation given out of politeness, policy or piety), and cite to provide background and introductory information. It is obvious that these types of citations cannot signify a profound impact. Moreover, the free (or low cost) online and widespread availability of a wide range of materials puts all contents with different degrees of validity and authority on the same level of accessibility and hence on the same level of credibility in the minds of Internet users [99]. This may arouse some kind of passive impact characterised by the user’s loss of his/her control (or needs of control) over his/her information seeking behaviour. This may be reflected in users’ lack of critical evaluation knowledge and skills [99], unwillingness to undertake extensive efforts to verify the credibility of online information and their rare and occasional use of information quality criteria [100,101]. 

According to the findings related to the social metrics, non-retraction positively predicts the social impact, as measured by Mendeley Readership, while negatively explains it when measured by Blog Mentions or Tweets, though the effect is not significant for the latter. This is in line with previous findings confirming the high correlation of papers’ quality with their Mendeley Readership [26,40,41] and its low correlation with Tweet counts [34]. The retracted papers are significantly lower in their Mendeley Readership compared with their non-retracted peers. The positive association of retraction with the Tweets and Blog Mentions and its negative association with Mendeley Readership may seem paradoxical at the first glance. However, the situation would be clarified when the differences of the social networks in terms of their nature and functions are taken into consideration. In fact, Mendeley is a reference manager. It is probably that Mendeley users added the retracted articles before retraction and then did not verify the records to delete the retracted ones. It is, thus, interesting to conduct further investigations to test how the retracted articles are added to Mendeley libraries before and after retraction. Moreover, as Mendeley is an online scholarly social network devoted to scientific research and reference management [102], it is more scientific in nature. It is, therefore, not far from expectations that its users show to be more prudent when confronting poor quality papers. However, Twitter and Blogs are relatively more public and popular in nature [103] with the potential to attract lay audiences [104]. Consequently, there could be a contamination risk of disseminating the retracted papers among the public by non-expert users with low information literacy and evaluation skills. On the other hand, the social users may use the microblogging and sharing the facilities of such social networks as Twitter or Blogs to broadcast, discuss and probably warn about a new retraction. The Retraction Watch blog [48] devoted to the discussion on the retracted papers is an obvious instance. As a result, a social post containing a link to a retracted paper announcing its retraction can gain momentum, go viral and lead to a high social impact for the retracted article. From this angle, the increase in tweeting retracted articles is not harmful, but constructive in the sense that it helps readers in distinguishing the valid and invalid papers. This gives rise to the question of how social networking functions regarding the fake and fallible scientific claims: does it leverage their diffusion or help to promote public watchfulness? Is it possible that the social users publicise the retraction and warn against the retracted articles in their Tweets or blogs while avoiding recording them in their Mendeley profiles? The various and mixed motivations of social mentioning require further studies to shed light on the real societal impact of the retracted papers. 

On this basis, the results of the present study urge for enhancing information and media literacy, especially training to assess credibility [99]. It also highlights the necessity for a more watchful and reliable reviewing system to detect and weed the poor quality manuscripts before their publications. It also highlights the need for a highly visible and transparent system of alerting and awareness raising about the retracted items as also proposed by Korpela [63]. 

The present research has some limitations. Given the relatively small size of the sample, the results of the present study are not generalizable and should be interpreted with caution. Moreover, retraction reasons which are not taken into consideration here are of different importance. For example, frauds more seriously jeopardise scientific authenticity and ethics than accidental mistakes or authorship conflicts. Accordingly, the citations to the retracted articles are not of the same importance. It is, therefore, necessary to repeat the research by taking the withdrawal reasons into account and comparing the impacts of the retracted papers categorised by the gravity of their retraction reasons. Furthermore, the retracted articles showed to be equal or higher in their societal impact regarding Tweets and Blog Mentions compared with their non-retracted counterparts, while they have a lower status in Mendeley Readership. This requires scrutinised opinion mining to elucidate the motivations of social users in mentioning them.

Ruby Princess Inquiry Report

The report of The Special Commission of Inquiry into the Ruby Princess is of interest for its comments on Commonwealth-State relations (some of which are quoted below) and what might best be described as the humanity of Special Commissioner Brett Walker in discussing his findings.

The report states

The experience of conducting this Inquiry confronts one with the unpleasant possibility of forming and expressing adverse judgement of one’s fellows. It is all the more unpleasant when they are genuine experts, truly public servants, and hard workers. The Commission’s Terms of Reference do oblige me to do so, if I reach relevant conclusions. I have done so, as noted in this Chapter and throughout the body of this Report. It is accordingly right that I acknowledge as Commissioner that these imperfections in the State’s public health work on 18-19 March 2020 in relation to the Ruby Princess should not be taken as damning condemnation of the individual public servants involved. The lapses identified are not in some way typical or characteristic of them or their colleagues. Some of these estimable individuals, as the evidence showed, remain in charge of weighty aspects of the State’s frontline response to the pandemic. I have to say that my confidence in their good faith and skilled diligence in these continuing efforts was not dented by the criticism I have expressed about the Ruby Princess episode. Everyone makes mistakes, and when we judge one another we should bear that in mind. As Commissioner in this Inquiry, I have been made sharply aware that, while we all make professional mistakes, the burden and stress created by life-and-death consequences in some but not all professions should engender sympathy and regard for those (like the Expert Panel in this case) whose duties are carried out under the weight of such consequences. 

 

Pace the Prime Minister, it is not an adequate answer to scrutiny of a public health official’s conduct in this Inquiry to assert that he or she was doing their best. The question this Commission’s Terms of Reference presents is whether, on this occasion, that was good enough – not in order to stigmatize or denounce, but in order to explain and learn. Inherent in the comments made in [1.40] above and in this [1.41] is the considered acceptance by this Commission of the genuine engagement by all the public health officials whose conduct has been examined in this Inquiry, in the difficult and multifarious tasks and challenges posed by COVID-19, of which the cruise ship program, and the Ruby Princess on 18-19 March, was but one integer of one part. 

 

Other systemic details of the decision-making on 18-19 March are described and assessed in the body of the Report. One theme common to some of them warrants noticing in these general reflections. When legal power is being exercised, including when a legal duty is being performed, a modicum of formality probably helps rather than hinders. This is not at all a plea from a lawyer for more red tape – perish the thought. Rather, it suggests that tasks such as considering whether to grant pratique (ie permission to disembark or unload a ship or aeroplane) lend themselves to deliberate, explicit mental consideration of all relevant matters. Understood as a servant and not as a master, it is a suggestion for an ordered approach akin to a checklist. If more than one officer participates, the redundancy enhances the prospect of avoiding critical errors. Part of such an ordered approach will usually be a near contemporaneous written (or digital) record, including of informative communications. All the crucial steps on 18-19 March 2020 in relation to the Ruby Princess would have been improved, most likely, and for the public benefit, had this traditional formality been more thoroughly observed. No decrement in speed of process, or appreciable increment in administrative burdens on busy officials, would have resulted. And, most likely, a slip like the out-of-date epidemiological criterion would not have gone undetected had members of the Health staff and of the Expert Panel expressly checked off an item eg of consistency with current CDNA requirements. 

 

As the body of the Report exhaustively sets out, the governmental powers and responsibilities brought to bear on the matter of responding to the threat of COVID-19 on board the Ruby Princess on 18-19 March 2020 are by no means straightforward to describe. The legislative drafting is, unfortunately, touched with the puzzle-making flair that is a part of our national legal genius. And, above all, the scheme (if it deserves that label) is explicitly an essay in co-operative federalism – Commonwealth and State officials all playing a part in an overall combined endeavour. At the outset, it is worth remembering that procedures for protecting us from health risks when passengers disembark from cruise ships are a very good example of useful and sensible co-operative federalism: because quarantine, overseas trade and immigration are Commonwealth powers and intrinsically national (quarantine, not only national), and because health regulation in the territory of a State is, naturally, among the most pressing of the so-called police powers (constitutional, not constabulary) of the State. In any event, this Commission sees no reason to deprecate the concurrent operation, in particular, of the Commonwealth’s Biosecurity Act 2015 and the State’s Public Health Act 2010.

Special Commission Walker comments

The one fly in the ointment so far as assistance to this Commission goes, is the stance of the Commonwealth. I hasten to exclude the lawyers for the Commonwealth, whose written assistance and production of materials are very much appreciated, in the circumstances. Those circumstances are dominated by the assertion on the Commonwealth’s part of an immunity from any compulsory process of a State’s Special Commission of Inquiry. A Summons to a Commonwealth officer to attend and give evidence about the grant of pratique for the Ruby Princess was met with steps towards proceedings in the High Court of Australia. Quite how this met the Prime Minister’s early assurance of full co-operation with the Commission escapes me. 

 

This waste of time and resources, when time, in particular, was always pressing, was most regrettable. As the quality and helpfulness of the voluntary submissions by the Commonwealth demonstrated, there was no problem of resources or governmental embarrassment conducing against the Commonwealth fully co-operating with this Commission, by providing one of its officers to give evidence. It may even be that, had this happened, the confusion about the ABF noted in [1.47] above could have been avoided. It seems that this practical approach was swamped by a determination never to concede, apparently on Constitutional grounds, the power of a State Parliament to compel evidence to be provided to a State executive inquiry (such as a Royal Commission or a Special Commission of Inquiry) by the Commonwealth or any of its officers, agencies or authorities. 

 

This is also not the place to set out arguments for and against this Commonwealth position. As a South Australian Royal Commissioner, I have previously expressed views contrary to the Commonwealth’s stated position. I maintain those views. Further, I continue to believe that this difference about something as fundamental as a State’s legislative power to bind the Commonwealth to assist in a State inquiry just as every other legal person in Australia would be obliged to do, disfigures the area of co-operative federalism. For example, in this case, it is of great governmental significance to New South Wales to study and inform the public health arrangements by which the risk of COVID-19 on the Ruby Princess was addressed. One hopes the Commonwealth also perceives that significance. But until this constitutional impasse is cleared, the State should re-consider its arrangements such as under the Biosecurity Act, so as to procure advance approval for mutual access to information by the co-operating polities. Meanwhile, perhaps the Special Commission of Inquiry Act 1983 should itself be reviewed and modernised (along Victorian lines, perhaps) so as to clear the decks for argument only about the alleged Commonwealth immunity.

The Key Findings are summarised as 

Chapter 9 

 

On 10 March 2020, the CDNA amended its Guidelines, such that all persons on board the Ruby Princess with an ARI or ILI became suspect cases for COVID-19: meaning they should all have been tested for the disease. The Expert Panel did not have this suspect case definition in mind when they conducted their risk assessment on 18 March. This was a serious and material error. 

 

The Expert Panel was not helped by the drafting of the risk assessment form, which was not updated with the new “suspect case” definition. This too was a serious error. 

 

The risk assessment form should have been drafted so as to clarify for the Expert Panel whether persons on this ship who had symptoms of respiratory illness were told in advance of assessment at the onboard medical centre that the consultation would be free of charge. 

 

The ARD Log should have been read by all members of the Expert Panel. They should have noticed the “significant spike” in ARI/ILI rates on the ship, particularly on 17 March. They should have requested an updated log either late on 18 March, or early on 19 March. These are all serious errors.

 

A graded risk assessment approach may at times provide a useful framework for public health risk assessments. It did not here, either before 10 March, or after. It was a distraction from the real questions: what are the consequences of the risk eventuating, and what are the appropriate precautions to take in light of such consequences? 

 

An ILI rate of 1% or more had some utility for the assessment of whether COVID-19 was circulating on the Ruby Princess during the 8 March voyage. That utility was limited. The more important question was: are there suspect cases of COVID-19 on board the ship? 

 

NSW Health should have ensured that cruise ships were aware of the change to the definition of a “suspect case” for COVID-19 made on 10 March. This would have resulted in the identification of such cases on the Ruby Princess. 101 persons fell within the suspect case definition by 18 March, and 120 by the time the ship docked. NSW Health should also have ensured that such persons were isolated in cabins. These were serious mistakes by NSW Health. 

 

The failure to ensure that swabs were collected by an onboard health assessment team in accordance with the requirements of the 9 March Enhanced Procedure was a serious failure by NSW Health. 

 

The delay in obtaining test results for the swabs taken from the Ruby Princess on the morning of 19 March is inexcusable. Those swabs should have been tested immediately. 

 

In light of all the information the Expert Panel had, the decision to assess the risk as “low risk” – meaning, in effect, “do nothing” – is as inexplicable as it is unjustifiable. It was a serious mistake. 

 

Chapter 12 

 

In relation to the insufficient supply of swabs available to the medical staff on the 8 March voyage of the Ruby Princess, no criticism is made of Dr von Waztdorf. 

 

Dr von Watzdorf gave a truthful answer to the question on the pre-arrival risk assessment form as to whether health assessments in relation to respiratory illness were provided free of charge. 

 

No criticism is made of Mr Little for not informing NSW Health of the “significant spike” in ARI/ILI numbers that he perceived on the Ruby Princess as at 17 March because that information was provided to NSW Health in the ARD Log on 18 March. 

 

Dr von Watzdorf ought to have notified NSW Health of the additional passengers and crew diagnosed with an ARI or an ILI on 18 and 19 March 2020. However, this was an oversight by her, which did not amount to a failure to comply with policies and procedures in place at the time. 

 

Carnival should have ensured that Dr von Watzdorf was made aware of the change to the CDNA “suspect case” definition on 10 March 2020. They should also have ensured that passengers and crew aboard the Ruby Princess were informed that there were suspect cases of COVID-19 on board. Those persons meeting the definition of a suspect case should have been required to isolate in their cabins. 

 

Chapter 13 

 

Passengers were incorrectly advised by the ABF during the cruise that their 14-day period of self-isolation would commence from the date of departure from the last overseas port visited by the Ruby Princess, being Napier on 15 March. This inaccuracy was later clarified during disembarkation at the OPT on 19 March, when passengers were provided with a fact sheet published by the Commonwealth Department of Health which relevantly instructed them to self-isolate for 14 days from their arrival in Sydney. 

 

The directive to allow passengers to onward travel interstate and internationally after disembarkation on 19 March did not appropriately contemplate or comply with the terms of the Public Health Order that came into effect on 17 March, which required all cruise ship passengers entering the State from any other country to isolate themselves in suitable accommodation for 14 days. Under the terms of the Public Health Order, the State Government should have arranged suitable accommodation for all passengers who were not residents of the State. 

 

The fact sheet linked to an email sent to passengers at 10:46am on 20 March incorrectly advised that they were permitted to continue with onward travel, despite being identified as “close contacts” of a confirmed COVID-19 case. Although this advice was corrected by NSW Health by the evening of 21 March, it was at that stage too late to prevent a considerable number of interstate and international passengers from onward travelling, including some passengers who were symptomatic during transit.

The Special Commission  Recommendations are

That the NSW HBO Guideline should be reconsidered in light of the criticism made at [11.13], namely that it regards a grant of pratique as the default position, and indicates that pratique should only ever be withheld where there is a compelling reason to deny it, for example, where a HBO has a “genuine belief” that other passengers “were exposed” to a LHD. The current HBO Guideline does not appear to satisfactorily reflect an appropriately precautionary public health approach. 

 

That Human Biosecurity Officers, DAWE, the Commonwealth Department of Health and NSW Health develop: a) better awareness of their own and each other’s roles and responsibilities for human biosecurity; and b) more formal protocols for their interaction and communication. This includes, but is not limited to, the grant of pratique. 

 

 That human health reporting within MARS be reviewed with a view to: a) improving its ability to be readily adapted to novel circumstances and suggested improvements (see, eg, [11.52]); b) improving its clarity of expression and the coherence and intelligence of the format of its design and presentation (see, eg, [11.54] to [11.60]); and c) improving access to other agencies (such as the Port Authority) with a legitimate interest in receiving the data for their own operations. 

 

That any future review of the Biosecurity Act consider the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups. 

 

That the Biosecurity Act make explicit a requirement to update superseded human health information.