National Medical Stockpile

The ANAO Planning and Governance of COVID-19 Procurements to Increase the National Medical Stockpile report comments 

1. Since its emergence in late 2019, coronavirus disease 2019 (COVID-19) has become a global pandemic that is impacting on human health and national economies. From February 2020 the Australian Government commenced the introduction of a range of policies and measures in response to the emergence of COVID-19 that included: travel restrictions and international border control and quarantine arrangements; delivery of substantial economic stimulus, including financial support for affected individuals, businesses and communities; and support for essential services and procurement of critical medical supplies. 

2. The National Medical Stockpile (NMS) is a reserve of pharmaceuticals, vaccines, antidotes and personal protective equipment (PPE) for use during the national response to a public health emergency that could arise from natural causes or terrorist activities. It is meant to supplement state and territory supplies in a health emergency. Between 3 March and 1 May 2020 $3.23 billion in funding was provided to the Australian Government Department of Health (Health) to procure medical supplies, namely PPE and medical equipment, for the NMS. Procurement activity peaked in April 2020, with the last contract for NMS supplies prior to 31 August 2020 entered into on 14 August 2020. 

3. The Department of Industry, Science, Energy and Resources (DISER) began assisting Health with the COVID-19 NMS procurements on 2 March 2020. On 18 March 2020 the Acting Secretary of Health decided, under paragraph 2.6 of the Commonwealth Procurement Rules (CPRs), that the CPRs would not apply to the COVID-19 NMS procurements. Paragraph 2.6 allows the accountable authority to decide this in a range of circumstances, including to protect human health. 

Rationale for undertaking the audit 

4. The COVID-19 pandemic and the pace and scale of the Australian Government’s response impacts on the risk environment faced by the Australian public sector. This audit is one of five performance audits conducted under phase one of the ANAO’s multi-year strategy that will focus on the effective, efficient, economical and ethical delivery of the Australian Government’s response to the COVID-19 pandemic. 

5. A challenging procurement environment, as well as the decision to not apply the CPRs, created additional risks to the proper use of public resources and achievement of procurement outcomes for the COVID-19 NMS procurements. The Australian Parliament and public require assurance that the procurement requirement has been met through the planning and governance arrangements that Health and DISER established in conducting the procurements. 

Audit objective and criteria 

6. The audit examined whether the COVID-19 NMS procurement requirement was met through effective planning and governance arrangements. 

7. To form a conclusion against the audit objective, the following high level criteria were adopted: Was pre-pandemic procurement planning for the NMS effective? As part of the Australian Government’s COVID-19 response, was the planning and governance of the NMS procurements effective? Was the COVID-19 NMS procurement requirement for PPE and medical equipment met?  

Conclusion 

8. The COVID-19 NMS procurement requirement for PPE and medical equipment was met or exceeded. Elements of Health’s procurement planning for the NMS could be improved. 

9. Health’s pre-pandemic procurement planning for the NMS was partially effective. Procurement planning was partially risk-based. Agreement with states and territories about stockpiling responsibilities was not documented and stockpile information was not adequately shared. There were no protocols for emergency procurements. 

10. Health’s and DISER’s NMS procurement planning and governance arrangements in response to the COVID-19 pandemic were effective. Both entities had elements of a plan for meeting the requirement, established fit for purpose governance arrangements and considered risks. 

11. The COVID-19 NMS procurement requirement was not clearly specified for PPE, swabs and COVID-19 tests. Procured quantities for the NMS were approximately aligned with overall national health system demand estimates for all items where demand modelling was undertaken, suggesting the procurement requirement was met or exceeded. 

Supporting findings 

Pre-pandemic procurement planning for the National Medical Stockpile 

12. Health’s procurement planning for the NMS was partially risk-based. A strategic plan for the NMS did not consider procurement in detail, but did establish an overarching framework for key risks to be considered in management decisions, including procurement decisions. A Replenishment Plan set out procurement priorities that were focused on chemical, biological, radiological or nuclear (CBRN) threats and an influenza pandemic and did not address other potential health threats. Procurement planning documents did not provide a risk-based rationale for the quantity of PPE to be procured and held within the NMS and Health did not consider potential risks to PPE supply chain security during an emergency. 

13. NMS procurement planning was not adequately coordinated with the states and territories in light of the objective to ‘supplement’ and work ‘in concert’ with state and territory stockpiles. Health does not have a documented agreement with the states and territories about stockpiling and there was a lack of regular and systematic information sharing about stockpiles with the states and territories. 

14. Strategic planning for the NMS did not adequately prepare for emergency procurements. High level plans for responding to a disease occurrence do not provide specific guidance on conducting emergency NMS procurements and, despite the NMS’s core function as an emergency mechanism, Health had not developed specific protocols for conducting these procurements or for coordinating the multi-jurisdictional procurement response. 

Planning and governance of COVID-19 National Medical Stockpile procurements 

15. Health’s planning for the COVID-19 NMS procurements was fit for purpose. It did not develop a strategic or operational procurement plan but elements of a plan — such as definition of objectives, timeframes and procurement method — were incorporated in documentation. DISER’s operational planning for the procurement activities was also fit for purpose. It did not develop an overarching operational plan for its involvement but taskforces developed, used and shared process maps, templates and checklists to guide procurement activities. 

16. Health’s and DISER’s internal and cross-departmental governance arrangements for the COVID-19 NMS procurements were fit for purpose. Respective roles between Health and DISER were not documented but were broadly understood. Both departments used a flexible taskforce approach to manage the procurements, involved procurement advisory services and actively engaged executive management in decision-making. There was a process for managing conflicts of interest in both departments, however, a requirement for specific conflict of interest declarations for the NMS procurements was introduced late and incompletely adhered to. 

17. Health and DISER assessed and treated risks to the proper use and management of public resources in the COVID-19 NMS procurements and to procurement outcomes. Health did not conduct an overarching assessment of risk in relation to COVID-19 NMS procurement activity and risk treatments for individual procurements were not well documented. Both departments considered procurement risks in a number of their implementation activities. 

18. When conducting the COVID-19 NMS procurements, Health applied the CPRs appropriately. Health officials informed the delegate of the use of paragraph 10.3(b) of the CPRs when seeking approval to commit funds through limited tender and sought the approval of the Acting Secretary of Health to invoke paragraph 2.6 to not apply the CPRs to the procurements. No alternative procurement framework for the COVID-19 NMS procurements was specified by the Acting Secretary. The Acting Secretary revoked the application of paragraph 2.6 when it was no longer necessary. 

Meeting the COVID-19 National Medical Stockpile procurement requirement 

19. In formulating the NMS procurement requirement, demand estimates and supply chain issues were considered by Health and DISER. However, due to the dynamic situation and late and partial information about existing national stocks of PPE, only the ventilator procurement requirement was specified clearly. In the absence of a specified procurement requirement, Health and DISER officials understood the requirement was to procure as much PPE as possible, as quickly as possible. 

20. The NMS procurement requirement for invasive ventilators was exceeded. In the absence of a specific procurement target for PPE and swabs, the ANAO compared procurements of PPE and swabs to national health system demand estimates and found that the NMS procurement requirement for PPE and swabs was met, or exceeded once procurements by other actors including the states and territories are taken into account. The ANAO was unable to determine if the procurement requirement for COVID-19 tests was met due to no specified requirement or comparable demand estimates.

Designs

The Explanatory Memo for the Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Cth) states 

 The objective of the intellectual property (IP) rights system is to support innovation by encouraging investment in research and technology in Australia, and by helping Australian businesses benefit from good ideas. The Australian Government proposes improvements to Australia’s designs legislation to better meet these objectives. 

The current designs system has been in operation since the commencement of the Designs Act 2003 (Designs Act) on 17 June 2004. Concerns have been raised about the effectiveness of the designs system and whether it is meeting its original policy objectives. 

In May 2012, the former Advisory Council on Intellectual Property (ACIP) was asked to investigate the effectiveness of the designs system in stimulating innovation by Australian users and the impact the designs system has on economic growth. As part of its investigations, ACIP released an issues paper in September 2013 to seek views from stakeholders, including users of the designs system. ACIP released an options paper for public consultation in December 2014 and a final report in March 2015 (‘the ACIP report’). 

On 6 May 2016, the Australian Government responded to the ACIP report and agreed to the majority of the recommendations. This Bill gives effect to several ACIP recommendations that were accepted by the Government, as well as making other improvements to the designs system. 

Outline 

The purpose of the Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (the Bill) is to provide more flexibility for designers during the early stages of getting registered design protection, and to make several technical amendments that will simplify and clarify aspects of the designs system. 

The Bill’s proposed amendments to the Designs Act are divided into seven categories, corresponding to the following seven schedules:

• Schedule 1 – Grace period 

• Schedule 2 – Infringement exemption for prior use 

• Schedule 3 – Registration of designs – removal of publication option 

• Schedule 4 – Relief from infringement before registration 

• Schedule 5 – Right of exclusive licensee to bring infringement proceedings 

• Schedule 6 – Formal requirements 

• Schedule 7 – Other amendments 

Schedule 1: Grace period 

Recommendation 12 of the ACIP report was: “ACIP recommends introducing a grace period of six months before the filing date, together with a prior user defence. Applicants who rely on the grace period to protect the validity of their design rights should be required to file a declaration to that effect.” The Government accepted this recommendation, noting that the length of the grace period and the requirement to declare any disclosures would be determined following further stakeholder consultation. 

This Schedule amends the Designs Act to give effect to that recommendation by providing designers a 12-month grace period to apply for design protection after publishing or using their design, helping protect them from losing their rights through inadvertent disclosure. 

Schedule 2: Infringement exemption for prior use 

Recommendation 12 of the ACIP report also included a recommendation to introduce a prior use defence for third parties who start using a published design during the grace period. In accepting Recommendation 12 the Government agreed to introduce a prior use defence along with the grace period. 

This Schedule amends the Designs Act to give effect to the recommendation by introducing an infringement exemption for prior use, which will protect third parties against infringement proceedings if they start using a design before the priority date of the design registration. This aims to balance the rights of designers and those of third parties that start use of a design that has been disclosed during the grace period but not yet registered, or that is created independently. The amendments in this Schedule are modelled on analogous prior user exemption provisions in the Patents Act 1990 (the Patents Act). 

Schedule 3: Registration of designs – removal of publication option 

Recommendation 5 of the ACIP report was: “ACIP recommends removing the option of the publication regime (i.e. without registration) from the designs process.” The Government accepted this recommendation, stating that the amendment to implement this recommendation would be one of a number of changes to streamline IP processes and support small business. Recommendation 9 of the ACIP report was: “ACIP recommends automatic publication at six months after the filing date, with the possibility to request publication earlier if desired, and with an amendment to the innocent infringer defence in subsection 75(2) of the Designs Act.” The Government noted this recommendation, stating that further consultation with stakeholders is required to consider any unintended consequences. This Schedule amends the Designs Act to give effect to these recommendations by streamlining the initial steps for registering a design. The changes allow applicants to effectively delay publication of their design for a prescribed period (to be six months) from the priority date. The seldom used “publication only” option is eliminated. Registration of designs is automatically requested after the expiry of a prescribed period from filing a designs application – currently, an application lapses after the expiry of this period. 

The overall impact will be to reduce the number of deadlines requiring action by applicants while making it simpler for them to delay publication of a new design until they are ready to launch in the market. 

Schedule 4: Relief from infringement before registration 

Recommendation 9 of the ACIP report also included a recommendation to amend the innocent infringer defence in subsection 75(2) of the Designs Act. The Government noted the recommendation, stating that further stakeholder consultation by IP Australia was required to consider any unintended consequences. 

Following further consultation this Schedule amends the Designs Act to give effect to that recommendation. The amendments will correct an anomaly that means relief for “innocent” infringers has not been available when infringement occurs between filing and registration. The amendments will allow courts to provide discretionary relief to innocent infringers in this period. This will reduce the risk to competitors from infringing a design they could not have found on the Register of Designs, because it was not yet published. 

Schedule 5: Right of exclusive licensee to bring infringement proceedings 

Recommendation 18(h) of the ACIP report was: “The Designs Act and/or the Designs Regulations 2004 should be amended to ensure exclusive licensees have the right to bring proceedings for infringement.” The Government accepted the recommendation. 

This Schedule amends the Designs Act to provide exclusive licensees with the legal standing to take infringement action through the courts without needing to rely on the registered design owner. Currently, only a registered owner of a design has standing to commence infringement action. When an exclusive licence is granted, it is often because the registered design owner is foreign based. A foreign based owner may not be strongly motivated to assist the exclusive licensee in pursuing a local alleged infringer due to associated costs or administrative burden. This proposal would ensure exclusive licensees of registered designs are able to enforce the rights that they have paid for, as is the case for patents, trade marks and plant breeder’s rights. (Patents Act 1990 s 120(1); Trade Marks Act 1995 s 26(1); Plant Breeders Right Act 1994 s 54(1)) 

Schedule 6: Formal requirements 

This Schedule amends the Designs Act to streamline the process for updating formal requirements for a design application in line with the current environment of fast-paced technological change. Currently, the formal requirements are set out in the Designs Regulations 2004 (Designs Regulations) and are based on a paper filing system. At present 99% of design applications are filed electronically, meaning the formal requirements in the Designs Regulations are no longer fit for purpose. 

The amendments will extend the existing power (Designs Act 2003, s 144B.) of the Registrar of Designs (Registrar) to make directions about the form of documents to apply to “approved forms” for designs so that applicants need only to refer to a single source of rules. The amendments will also allow the Registrar to specify formalities requirements for design applications by written determination, which will allow the rules to be easily adapted to keep pace with changing technology.  

Schedule 7: Other amendments 

Schedule 7 to the Bill will make several minor technical corrections and improvements to the Designs Act in relation to the following accepted ACIP recommendations:

• Part 1: Standard of the informed user (ACIP Recommendation 10) 

• Part 2: Revocation of registration of design (ACIP Recommendations 18c and 18f) 

• Part 3: Renewal of registration of design (ACIP Recommendation 18i)

Collectively, the measures in this schedule are proposed to address a small number of inconsistencies in the Design Act. The changes will simplify the designs system for users and clarify parts of the system that may be confusing.

Capital

The 52 page 'Corporate Governance and the Feminization of Capital' by Sarah C. Haan comments 

Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control. 

Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.

G20 Protests and Surveillance

'How to Govern Visibility?: Legitimizations and Contestations of Visual Data Practices after the 2017 G20 Summit in Hamburg' by Rebecca Venema in (2020) 18(4) Surveillance & Society 522-539 comments 

Technological changes shift how visibility can be established, governed, and used. Ubiquitous visual technologies, the possibility to distribute and use images from heterogeneous sources across different social contexts and publics, and increasingly powerful facial recognition tools afford new avenues for law enforcement. Concurrently, these changes also trigger fundamental concerns about privacy violations and all-encompassing surveillance. Using the example of police investigations after the 2017 G20 summit in Hamburg, the present article provides insights into how different actors in the political and public realm in Germany deal with these potentials and tensions in handling visual data. Based on a qualitative content analysis of newspaper articles (n=42), tweets (n=267), experts’ reports (n=3), and minutes of parliamentary debates and committee hearings (n=8), this study examines how visual data were collected, analyzed, and published and how different actors legitimated and contested these practices. The findings show that combined state, corporate, and privately produced visual data and the use of facial recognition tools allowed the police to cover and track public life in large parts of the inner city of Hamburg during the summit days. Police authorities characterized visual data and algorithmic tools as objective, trustworthy, and indispensable evidence-providing tools but black-boxed the heterogeneity of sources, the analytical steps, and their potential implications. Critics, in turn, expressed concerns about infringements of civic rights, the trustworthiness of police authorities, and the extensive police surveillance capacities. Based on these findings, this article discusses three topics that remained blind spots in the debates but merit further attention in discussions on norms for visual data management and for governing visibility: (1) collective responsibilities in visibility management, (2) trust in visual data and facial recognition technologies, and (3) social consequences of encompassing visual data collection and registered faceprints. 

 Venema argues

 “It is an amount of visual data never seen before in the criminal history in Germany” (Monroy 2017), “a new standard of proof” (Monroy 2018); “we enter uncharted technological territory” (Bürgerschaft der Freien und Hansestadt Hamburg 2018: 8). With these words, the chief inspector of Hamburg’s criminal investigation department praised the wealth of images and the pivotal role of facial recognition tools that were used for police investigations after the 2017 G20 summit in Hamburg. Protests had culminated in various violent confrontations between protesters and the police as well as in severe riots (for a detailed chronology and an in-depth analysis of the dynamics, see Malthaner, Teune, and Ullrich 2018). In the subsequent prosecutions against individuals accused of, for example, disturbing the peace, assault, civil disorder, damage to property, or looting, the police collected more than 100 TB of photographs and videos and analyzed them with the help of a third-party facial recognition tool. Moreover, the police published more than two hundred pictures of suspects online in several waves of national, and later European, public searches. 

These practices reflect important shifts in how visibility can be established, governed, and used in highly visualized and datafied societies: Both protests and public life in general are increasingly videotaped or captured by photographs—be it by the police, video surveillance cameras, people who attend an event, or those who simply pass by a given public place. Vast numbers of digital images taken and shared in private and public contexts can be widely distributed, combined with images from other sources, and (re)used across different social contexts and publics. Visual data, that is the combination of a given photograph or video sequence with specific metadata, such as GPS coordinates or the date or time at which a picture or video was taken, can detail fundamental personal information such as a person’s whereabouts at a given time, individuals’ physical and facial traits, or how people interact with each other. Moreover, increasingly powerful tools for algorithmic analyses, such as facial recognition tools, now promise significant advancements for scanning large data sets, mapping facial features from a photograph or video, and identifying individuals or tracking their movements. 

These changes and characteristics have implications for how the police and public, private, and voluntary sector partners interact in policing strategies (see Spiller and L’Hoiry 2019; Trottier 2015). Furthermore, they entail both myriad potentials as well as possible risks. On one hand, extensive and heterogeneous visual data and facial recognition tools might be beneficial in situations such as searching for terrorists or a missing child. In fact, they can open up significant opportunities for safeguarding public security and for supporting policing operations, as the case of the Boston marathon bombing has shown (Mortensen 2015). On the other hand, ubiquitous visual technologies, the potentially broad reach of images or videos, and biometric analyses may also be considered fundamental threats to civil liberties and an intrusive shift in control capacities (Crawford 2019). In fact, encompassing visual data can also contribute to exclusion, repression, and targeted control when pictures or videos published online are used to monitor and collect information about individuals or groups of people, their activities, interactions, and associations (see, e.g., Pearce, Vitak, and Barta 2018; Lane, Ramirez, and Pearce 2018; Uldam 2018; Dencik, Hintz, and Carey 2018). 

How images were handled in the G20 investigations triggered controversial public and political debates. In these debates, the crucial steps of (visual) data management and governing visibility—that is, how to collect, how to analyze, and how to use and distribute data—moved to the center of public attention. The ways in which facial recognition was used even led to a precedent lawsuit in Germany (Caspar 2019). This makes the 2017 G20 investigations a timely case study to investigate discourses on visual data practices and to examine how ethical and legal norms for handling visual data and for governing visibility are currently discussed. Visual data practices are thereby understood as practices of collecting, analyzing, and publishing visual data. Tracing these practices and debates on visibility management and law enforcement is vital as they provide insights into an urgent social concern (Flyverbom 2019) and are a key site for understanding the politics of datafied societies in general (Hintz, Dencik, and Wahl-Jorgensen 2018). 

So far, insights into how different authorities and stakeholders in the political and public realm deal with potentials, risks, and normative questions related to visibility and visual data are scarce. Based on a qualitative content analysis of newspaper articles, tweets, experts’ reports, and minutes of parliamentary debates and committee hearings, I seek to address this gap in a twofold way. First, I compile publicly available information about visual data practices. Second, I examine how different actors in mediated public and political debates legitimated and contested visual data practices. 

I start by outlining the theoretical concepts of visibility and visibility management. I then conceptually discuss how changing visual practices shift visibility and surveillance constellations. The subsequent review of previous research and the empirical study focus on how different actors such as political decision-makers, journalists, or citizens make sense of these shifts and their implications. Based on the empirical findings, I discuss three topics that remained blind spots in the debates but merit further attention in discussions on norms for visual data management and for governing visibility: (1) collective responsibilities in visibility management, (2) trust in visual data and facial recognition technologies, and (3) social consequences of encompassing visual data collection and registered faceprints.

Judgments

'How to write a legal judgment' by Robin Jacob comments 

About 10 years ago I was in Toronto and met a well-known, very clever member of the Canadian Supreme Court. His judgments were normally very long, with many case citations — not infrequently over 100. He (in parallel with a judge of the Australian High Court) was writing the longest judgments in a Supreme Court anywhere in the common law world. I asked, “why so long?” His answer surprised me a bit. He said: “Because I have to write for several audiences, the parties, the legal profession and the academics.” I did not agree then and I do not agree now. 

Of course if you think of a judgment as a quasi-PhD thesis it will need to be long. The judge must show that he or she has reviewed all the authorities and will be tempted to try to lay down the law widely and definitively. But a judgment is not meant to be a thesis. It is to explain what the case is about and why the judge is deciding it the way he or she does. That is all. The primary audience is the parties, particularly the “guy who loses,” as one American judge put it. Judgments ought not to be written for academics at all—they consider and write about the law having regard to judgments, and have no need of judges to do their work for them. The legal profession is of course interested in judgments — but that has always been so without judges writing their judgments with the profession as a target. 

The fact is that modern judgments have become far too long. Whether at first instance (where fact-finding will inevitably increase length somewhat) or on appeal I hazard that they are on average nearly twice as long as they were 50 years ago. (That is not to say prolixity was unknown — Lord Evershed, the Master of the Rolls who preceded Lord Denning, seemed to think that there was no detail too unimportant not to recite!) This is regrettable. Long judgments themselves increase legal costs — obviously a lawyer doing legal research will take longer to read a tome than 10 pithy pages. The researching lawyer will try to find the bit that matters in the morass of words — but it would so much easier and quicker (and so much cheaper) if that bit was easier to find. Life is too short to read modern judgments.

Facial Recognition in NZ

Facial Recognition Technology in New Zealand: Towards a Legal and Ethical Framework by Nessa Lynch, Liz Campbell, Joe Purshouse and Marcin Betkier comments 

‘The algorithms of the law must keep pace with new and emerging technologies' R (On Application of Bridges) v The Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) .

This technology allows remote, contactless, data processing, even without a person’s knowledge. In the current digital environment, where people’s faces are available across multiple databases and captured by numerous cameras, facial recognition has the potential to become a particularly ubiquitous and intrusive tool. The increased surveillance enabled by this technology may ultimately reduce the level of anonymity afforded to citizens in the public space. 

1 FRT AND ITS USE 

The use of automated facial recognition technology (FRT) is becoming commonplace globally and in New Zealand. FRT involves the use of an algorithm to match a facial image to one already stored in a system, is used in automated passport control and other border control measures, as a biometric identifier in the banking, security and access contexts, and on social media platforms and various other consent-based applications. 

2 VALUE AND RISKS OF FRT 

FRT offers accuracy, speed and convenience in identity management in the commerce, travel, immigration, border control and security contexts. 

The ability to identify and intercept an individual through automated crosschecking of images could be of immense value in the investigation of crime, counter- terrorism, and immigration. However, there are critical implications for the right to privacy and the right to be free from discrimination, and its use can compound existing biases. It is unlike other biometrics such as DNA and fingerprints in that facial images can be collected at a distance and their collection, use and storage is not specifically covered by legislation in New Zealand. 

3 CONTRIBUTION OF THIS REPORT 

This report contributes to the understanding of how and when this rapidly emerging technology should be used and how it should be regulated. It is centred in what has been described as the ‘second wave’ of algorithmic accountability –

While the first wave of algorithmic accountability focuses on improving existing systems, a second wave of research has asked whether they should be used at all—and, if so, who gets to govern them.

This project seeks to address the regulation gap through ascertaining how FRT can and should be regulated in New Zealand. While the benefits that might be offered by FRT surveillance are increasingly observable, its effect on civil liberties is subtler, but certainly pernicious. Given the potential for FRT to be used as a key identity and access management tool in the future, there are pertinent questions around how images are being collected and stored now by the private sector. Where are these images being stored? Who has access to this data? What else might the images be used for? 

Without a detailed appraisal of the benefits of state FRT surveillance, and an understanding of the ethical issues raised by its use, any framework for the regulation of this activity cannot hope to engender public confidence that its use is fair and lawful. 

4 METHODOLOGY AND APPROACH 

We are a project team with extensive expertise in the theory and practice of biometrics, data privacy and state surveillance, with established collaborative relationships and a track record of impactful co-authored publications. Our experience extends to bridging the gap between academic scholarship and policy and practice, including comparative insight into ethical issues, governance and regulation in this space. 

The methodology for this project used a combination of literature review, legal reasoning, analysis of theoretical frameworks and stakeholder consultation and interviews to produce an accessible but insightful analysis of the use of FRT in New Zealand, the risks and benefits of the technology, and the options for regulation, governance and oversight. The principal phases of the project were:

Phase 1 – Literature review and scoping: This phase involved surveying the literature and stocktaking uses of FRT nationally and internationally. 

Phase 2 – Issues paper: This phase involved the writing of an issues paper which outlined the key questions and scoped some preliminary recommendations. 

Phase 3 – Workshop and panel discussion: A workshop was held in Wellington in October 2019. Attendees were drawn from New Zealand Police, MBIE, the Privacy Commissioner, the Office of the Prime Minister’s Chief Science Advisor, the Law Commission, Artificial Intelligence Forum of NZ, Department of Internal Affairs, Department of Prime Minister and Cabinet, the private sector and academic colleagues. Two international experts – Clare Garvie of the Centre for Privacy and Technology at Georgetown University in Washington DC and Rachel Dixon, the Privacy and Data Protection Deputy Commissioner for the State of Victoria, attended and participated in the workshop, as well as all members of the research team. A public panel discussion was held at Victoria University of Wellington on 17 October 2019. 

Phase 4 – Report Writing: 2020 was an exceptional year in many ways, and Covid-19 impacted our work in many ways. Like academic colleagues around the world, our research was impacted by lockdowns, increased teaching duties and cancellation of conferences, seminars and research trips. Government operations in New Zealand was also significantly impacted as civil servants were deployed on the Covid-19 response. Our thanks to our funders for permitting an extension to the time available for drawing down the funding. 

Phase 5 – Peer review and publication: Several colleagues from the academic and public sectors generously gave their time to peer review our recommendations and other sections. Any errors are of course our own.

5 OUTLINE OF THE REPORT 

Section 1 – stocktakes the use of FRT across New Zealand and comparable jurisdictions, Section 2 – discusses the content and application of the human rights framework, Section 3 – discusses ethical standards for the use of technologies such as FRT, public attitudes and social licence, Section 4 – considers the threats that FRT may pose to human rights, Section 5 – analyses the application of existing laws and regulation in New Zealand, Section 6 – considers models of regulation from comparable jurisdictions, Section 7 – draws together general and specific recommendations.

Disadvantage

The Chair’s foreword to the report by the House of Representatives Standing Committee on Indigenous Affairs on food pricing and food security in remote Indigenous communities states

 In early 2020, while many Australians were watching toilet paper supplies disappear from supermarket shelves, stories were emerging of people in remote Aboriginal and Torres Strait Islander communities facing extremely high prices for particular food and grocery items. News outlets reported an iceberg lettuce costing $7.89 and a jar of coffee selling for $55. 

This inquiry was initiated in response to those reports and to other long-standing concerns regarding the availability and affordably of nutritious food in remote communities. 

While there was an answer to each of the reported prices, it also became clear that these stories reflected a persisting disquiet regarding the supply of affordable, nutritious, quality food in many remote Aboriginal and Torres Strait Islander communities. That supply is tenuous and needs to be improved. 

Food security issues for remote Aboriginal and Torres Strait Island communities are not new. For many people living remotely, food security is an annual concern. The supply of quality and affordable food is often unstable due to poor infrastructure, seasonal changes and the high costs of living and operating stores remotely. 

Community stores are not a lucrative business. Stores are operating in situations that are very difficult and where costs are much higher than in urban centres. A broken fridge can’t be quickly and cheaply fixed when the closest fridge repair person is located 200 kilometres up a 4-wheel-drive track. Goods can travel halfway across the country before they arrive at the stores and there is a substantial cost and fragility involved in food supply to remote places. 

However, despite these challenges, the committee also learned that there is a very good story to be told about what happened in remote communities this year during the COVID-19 pandemic. 

In March this year, bio-security zones were created to keep very vulnerable remote communities safe from the coronavirus pandemic. Those bio-security zones meant more people returning to live in remote communities without the capacity to travel into regional centres for supplies. Population influx, coupled with state border closures, heightened demand on stockpiles and social distancing affecting manufacturing, put additional pressure on the already fragile supply chain. 

With a potential new crisis emerging, industry, NGOs, communities and governments of all stripes collaborated with stores to ensure food supply was maintained despite these myriad pressures. 

The advent of the Supermarket Taskforce and the Food Security Working Group allowed for essential collaboration and solution-driven planning to occur. The committee heard stories of food being donated, new initiatives like food baskets being developed at pace and competitors helping one another remove blockages to ensure the problems were resolved. 

We have an opportunity to harness some of the lessons of the Supermarket Taskforce and the Food Security Working Group and can build on the networks and goodwill generated through that process. There is an opportunity to make some important changes that could make a positive difference to the food security and health outcomes experienced by people in remote Aboriginal and Torres Strait Islander communities. This report recommends several measures to build on the cooperative momentum of 2020. 

We also recommend measures to support local food supply, to improve governance and oversight and to ensure competition between management groups continues. 

Finally, it is important to acknowledge that this is the third time this matter has been examined in recent years and none of those inquiries has resolved the concerns about food prices and security that have been expressed. 

Consequently, complaints concerning food pricing need to be examined by a body that is equipped to do the thorough, forensic examination that will satisfy the public. That is why the Committee is recommending these matters be investigated by the ACCC undertaking an enhanced market study which they have never done in remote communities. In addition, real time price monitoring and much better governance training at the local level should help bolster public confidence.

The terms of reference for the Committee's inquiry were  

[to] identify and report upon factors contributing to higher prices and situations where prices are considered unreasonable and in particular investigate whether there is price gouging in any remote community stores. This investigation should pay particular attention to the availability and pricing of fresh and healthy foods in remote community stores. The Inquiry will also consider licensing and regulation as well as the governance arrangements for remote community stores across Australia, and what action, if any, that the Australian Government and State and Territory governments could take to address price gouging in Remote communities. 

The Inquiry should consider, report and where appropriate make recommendations on:

1. The licensing and regulation requirements and administration of Remote Community stores; 

2. The governance arrangements for Remote Community stores; 

3. Comparative pricing in other non-Indigenous remote communities and regional centres; 

4. Barriers facing residents in Remote Communities from having reliable access to affordable fresh and healthy food, groceries and other essential supplies; 

5. The availability and demand for locally produced food in Remote Communities; 

6. The role of Australia's food and grocery manufacturers and suppliers in ensuring adequate supply to Remote Communities, including: a. the volume of production needed for Remote Communities; b. challenges presented by the wet season in Northern Australia as well as any locational disadvantages and transport infrastructure issues that might be relevant; c. geographic distance from major centres;

7. identifying pathways towards greater cooperation in the sector to improve supply;  

8. The effectiveness of federal, state and territory consumer protection laws and regulators in: a. supporting affordable food prices in Remote Communities particularly for essential fresh and healthy foods; b. addressing instances of price gouging in Remote Communities; and c. providing oversight and avenues for redress; 

9. Any other relevant factors.

The recommendations in the report are 

R 1 

The Committee recommends that the Treasurer direct the Australian Competition and Consumer Commission to undertake an enhanced market study into food and grocery prices in remote community stores. This study should make recommendations about how to increase competition in remote areas and put downward pressure on food prices. The study should also identify better complaints handling mechanisms for people in remote communities, any changes to the consumer protection laws that might need to be made to address price gouging in these communities, which the current laws do not address, and a consideration of the impact, if any, of rebates. The study should also recommend ways in which remote community members can be better informed of their rights as consumers, especially the right to make complaints. 

R 2 

The Committee recommends that the Australian Government establish a real-time price monitoring and disclosure mechanism through a point of sale data system across all remote community stores. Such a system should allow for real time information about changes in price and patterns of consumption and supply. The price monitoring system should be reported and made publicly available by the NIAA. 

R 3 

The Committee recommends that the Australian Government investigate the need for upgrading the infrastructure and shipping lanes in the Torres Strait and coastal areas of the Northern Territory, and road infrastructure into remote communities, to improve the supply of food to remote First Nations communities. 

R 4 

The Committee recommends that the Australian Government encourage the establishment of more local distribution centres by wholesalers in major regional centres closer to remote communities. 

R 5 

The Committee recommends that an independent review of the outcomes and quality of governance training conducted by ORIC be undertaken so that in future training be available in language, and that evidence be collected that those who have completed the training actually understand their duties and obligations as directors. Completion of initial governance training and some level of continuing professional development for directors and staff should also become part of the national licensing scheme. 

R 6 

The Committee recommends that the Australian Government institute a national scheme of licensing and inspection of remote community stores. 

R 7 

The Committee recommends that the Stronger Futures in the Northern Territory Act 2012 be amended to remove the requirement that stores be given notice before inspections. 

R 8 

The Committee recommends that remote stores provide material to inform communities on their use of rebates. 

R 9 

The Committee recommends as a means of applying competitive pressure that at the expiration of store managment contracts, new contracts should ideally be open to competitive tender. 

R 10 

The Committee recommends that the Australian Government, in partnership with the States and Territories and First Nations people, develop a strategy for food security and nutrition for remote First Nations communities. 

R 11 

The Committee recommends that the Food Security Working Group that was established during the COVID-19 pandemic be maintained and tasked with:  identifying improvements to the logistics of food and grocery supply into remote communities  assessing the viability of warehousing greater volumes of food and groceries in more remote parts of the supply chain  identifying ways to improve the replenishment cycle of food and groceries in remote community stores  ensuring food supply during pandemics, natural disasters and seasonal changes  identifying ways which the major supermarket chains can help play a role in driving down food prices and guaranteeing supply for remote communities  identifying ways in which Outback Stores might assist independent community stores with the supply of food and grocery stock. 

R 12 

The Committee recommends that the Australian Government support local food production in remote communities to meet food safety standards and other regulations in order to encourage the greater use of locally sourced food. 

R 13 

The Committee recommends that the Australian Government introduce a remote community competitive grants program, with a focus on:  access and continuity of power  improving cold and dry storage in communities  promoting and supporting local food production schemes such as mobile abattoirs, fishing enterprises and community gardens. 

R 14 

The Committee recommends that community stores be eligible to access and apply for any grants that might be available to other essential services in remote communities. 

R 15 

The Committee recommends that the Australian Government consult with the relevant State and Territory Government agencies to develop solutions to deliver reliable electricity to remote communities. 

R 16 

The Committee recommends that the NIAA consult with the relevant stakeholders to ensure that Aboriginal and Torres Strait Islander residents of town camps can receive food deliveries from supermarkets in their vicinity.

Protectionism

'Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy' by Svetlana Yakovleva in (2020) 74(2) University of Miami Law Review comments 

Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves non-economic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.

Repair Right discussion paper

The Productivity Commission has released a 39 page 'Right to Repair Issues Paper' as part of the inquiry noted here. 

The 'Information Requests' in that paper are as follows  

IR 1 

What would a ‘right to repair’ entail in an Australian context? How should it be defined? 

IR 2 

a) What types of products and repair markets should the Commission focus on? 

b) Are there common characteristics that these products share (such as embedded technology and software or a high/low degree of product durability), and which characteristics would allow policy issues to be considered more broadly? 

c) If there are particular products that the Commission should focus on, what are the unique issues in those product repair markets that support such a focus? 

IR 3 

a) Do the consumer guarantees under the ACL provide adequate access to repair remedies for defective goods? If not, what changes could be made to improve access to repair remedies? Are there barriers to repairing products purchased using new forms of payment technologies, such as ‘buy now pay later’? 

b) Is the guarantee of available repair facilities and spare parts effective in providing access to repair services and parts? Or is the opt out clause being widely used, making the guarantee ineffective? 

c) Should consumer guarantees seek to balance the broader societal costs of remedy choices (such as the environmental impacts of replacements) with consumer rights, and if so how? For example, should repairs be favoured as a remedy? 

d) Are consumers sufficiently aware of the remedies that are available to them, including the option to repair faulty products, under the ACL’s consumer guarantees?

• If not, would more information and education be a cost effective measure to assist consumers understand and enforce guarantees? What would be the best way to deliver this information? What other measures would be more effective? 

IR 4 

a) The Commission is seeking information on the nature of repair markets in Australia, including detailed data on the repair markets for specific products, covering:

• market size — by employment, revenue, number of businesses, profit margins 

• market composition — such as market share between authorised, independent and DIY repairers.

b) Is there any evidence of a difference in quality, safety or data security between authorised repair networks and independent repairers? Are there ways to address concerns around quality, safety or data security while promoting a vibrant independent repair market? 

c) Are there available examples of the contracts between OEMs and authorised repairers? Do these contracts limit effective competition in repair markets (such as by limiting the number and reach of authorised repairers or requiring authorised repairers to not be authorised by a competing brand)?

• What is the process to become authorised? Is it open and competitive? 

d) Are there specific examples or other evidence of practices by OEMs or their authorised repairers that create barriers to competition in repair markets?

• Do other factors also create barriers to competition in repair markets, such as short sighted consumer behaviours, switching costs, poor information availability or consumer lock in? 

e) What is the relationship between the intensity of competition in the primary product market and the risk of consumer harm from a lack of competition in repair markets? Can competitive primary markets compensate for non competitive repair markets?

• Is an absence of effective competition in the primary market a necessary condition for consumer harm from non competitive repair markets? 

• To what extent would measures that enhance competition in the primary market address concerns about a lack of competition in repair markets? 

f) Are the restrictive trade practices provisions of the CCA (such as the provisions on misuse of market power, exclusive dealing or anti-competitive contracts) sufficient to deal with any anti competitive behaviours in repair markets? 

g) What policy changes could be introduced if there is a need to increase competition in repair markets and improve consumer access to, and affordability of, repairs?

• What are the costs and benefits of any such proposal to the community as a whole? How does it balance the rights of manufacturers and suppliers, with those of consumers and repairers? 

IR 5 

a) To what extent do current IP laws already facilitate repairs by consumers or independent third parties (e.g. the spare parts defence under the Design Act)? 

b) Are there any aspects of IP laws where consumers’ rights with respect to repairs are uncertain? 

c) Do current IP protections (e.g. intellectual property rights, technological protection measures, end user licencing agreements) pose a significant barrier to repair in Australia? If yes, please comment on any or all of the following:

• the specific IP protections that prevent consumers from sourcing competitive repairs and/or inhibit competition in repair markets 

• the types of products or repair markets these barriers mainly affect 

• the prevalence of these barriers 

• the impacts of these barriers on third party repairers and consumers (e.g. financial cost, poorer quality repairs) (continued next page) 

• options for reducing these barriers and their associated benefits, costs and risks (including potential impact on market offerings). 

d) In what ways might government facilitate legal access to embedded software in consumer and other goods for the purpose of repairs? What are the pros and cons of these approaches? 

IR 6 

a) What evidence is there of planned obsolescence in Australian product markets? Do concerns about planned obsolescence principally relate to premature failure of devices or in them being discarded still working when more attractive products enter the market? 

b) How can the Commission distinguish between planned product obsolescence and the natural evolution of products due to technological change and consumer demand? 

c) How does planned obsolescence affect repairers, consumers and the broader community in Australia? 

d) What measures do governments currently use to prevent planned obsolescence or mitigate its effects (in Australia and overseas)? How effective are these measures? 

e) What are the benefits, costs and risks of Australia adopting measures similar to those currently used overseas, such as product design standards and reparability ratings? 

f) Do consumers have access to good information about durability and reparability when making purchases? If not, how could access to information be improved? 

IR 7 

a) What data are available on the amount of e waste generated in Australia?

• What data is there on the composition of e waste in terms of particular materials (such as hazardous materials) by product type? 

• How does hazardous e waste compare to hazardous general waste in its prevalence and risks? Is there merit in distinguishing between hazardous e waste and non hazardous e waste? And if so, how could this be done in practice? 

b) What estimates are available on the costs of e waste disposal on the environment, human health and social amenity, in Australia and internationally?

• How do the impacts differ by disposal type, or by the type of product or hazardous material? 

c) How much of Australia’s e waste is shipped overseas for recycling? Is there evidence of circumstances where this creates problems for recipient countries?

• Are there barriers to the expansion of domestic recycling facilities or the adoption of new recycling technologies in Australia (such as plasma arc incinerators)? 

d) What are Australia’s current policy settings for managing the potential environmental and health effects of e waste (such as landfill bans, the National Television and Computer Recycling Scheme or Mobile Muster)? Are these policy settings broadly right — that is, are they proportional to the impacts of e waste on the community? 

e) How can a right to repair policy further reduce the net costs of e waste in Australia, and would such an approach be an effective and efficient means of addressing the costs of e waste to the community? 

IR 8 

a) What policy reforms or suite of policies (if any) are necessary to facilitate a ‘right to repair’ in Australia? 

b) Are there any other barriers to repair and/or policy responses that the Commission should consider? 

c) What are the costs and the benefits of the various policy responses that have been proposed to facilitate repair (such as those outlined in table 1)? 

d) Are there other international policy measures or proposals that the Commission should consider as part of this inquiry?

Insurance

'Regulating the Use of Genetic Information in the Life Insurance Industry' by Sara Golru in [2020] 7 UNSW Law Journal comments 

The Australian life insurance industry has been the subject of extensive media and academic criticism due to their treatment of genetic information in the underwriting process. As the field of genetics advances, the potential for genetic discrimination also increases. The nature of this discrimination can be crudely summarised in the statement of a member of the Australian insurance industry, who informed a carrier of the BRCA1 gene mutation that ‘if you were a horse, we wouldn’t bet on you because we know you wouldn’t finish the race’. The insurer dismissed the relevance of the carrier’s significant efforts to reduce her risk by undergoing preventative surgery, in the form of a double mastectomy as well as the removal of her fallopian tubes and one of her ovaries. 

Similarly, a life insurance applicant who tested positive for Lynch syndrome was consistently denied coverage, despite undergoing regular colonoscopies and preventative surgery. Federal Labor MP Matt Keogh noted that an oncologist informed him that he spent more time discussing the insurance ramifications of genetic tests with his patients than the health ramifications. These cases have prompted politicians, medical and legal professionals as well as academics to call for greater claims process transparency and government oversight of the life insurance industry. 

Genetic test results cannot affect private health insurance in Australia, as it is community risk rated under the Private Health Insurance Act 2007 (Cth). Consequently, private health insurers are required to offer the same premiums to all applicants for equivalent policies and are prohibited from discriminating on the basis of health or other information. However, life insurance is mutually rated so insurers classify individuals according to their personal risk. This regime inevitably creates great potential for genetic discrimination, as genetic results can be used for underwriting life insurance in Australia, with little consumer transparency or government oversight. It is true that the use of genetic information has been relatively rare in Australian life insurance. However, it must also be acknowledged that genetic advancements are occurring at a rapid rate and genetic testing is becoming increasingly common.  In order to harness the true potential of genomics in healthcare, we need to avoid impediments to the uptake of genetic testing and participation in genetic research. 

From 2016 to 2018, the Australian Parliamentary Joint Committee on Corporations and Financial Services conducted an inquiry into the life insurance industry.  Following 77 submissions and seven hearings, the Committee made a number of recommendations including: strengthening consumer protections and regulatory oversight of the industry; greater transparency of remuneration, commissions, payments and fees; appropriate access to personal medical and genetic information and; fairer claims handling practices.  In particular, Recommendation 9.1 suggested that the Financial Services Council, in consultation with the Australian Genetic Non-Discrimination Working Group, assess the consumer impact of imposing a moratorium on life insurers using predictive genetic information, unless the consumer provides genetic information to a life insurer to demonstrate that they are not at risk of developing a disease. 

As a result of this recommendation, the Financial Services Council (‘FSC’) imposed a moratorium on genetic tests in life insurance from 1 July 2019.13 Parts II and III of this article will review the current Australian and international legal frameworks governing the use of genetic information in life insurance. Part IV will highlight policy concerns and Part V will provide recommendations for reform. 

Intoxication

The Seeing the Clear Light of Day: Expert Reference Group on Decriminalising Public Drunkenness report in Victoria states 

 There is a clear, compelling and urgent imperative to overhaul Victoria’s current approach to people who are intoxicated in public. The current punitive, criminal justice led response to intoxicated people is unsafe, unnecessary and inconsistent with current community standards. A safer, sensible health- based approach is required that ensures the health and safety of all Victorians, particularly our most vulnerable. 

Ever since the Royal Commission into Aboriginal Deaths in Custody, calls for the decriminalisation of public drunkenness in Victoria have been strong, sustained and spirited. Numerous reports during the past 30 years have added to the Royal Commission’s clear call for decriminalisation, including the Drugs and Crime Prevention Committee’s Inquiry into Public Drunkenness in 2001 and the Victorian Parliament’s Implementation Review of the Recommendations from the Royal Commission into Aboriginal Deaths in Custody in 2005. 

While the numerous recommendations have been gathering dust, the devastating human impacts of the criminalisation of public drunkenness have continued. The death in police custody of Tanya Day – a much-loved mother, grandmother and a proud Yorta Yorta woman – has been a clarion call for change. Ms Day’s story embodies the tragic human consequences of the continuing criminalisation of public drunkenness in Victoria – a punitive scheme that has widespread unjust, discriminatory and intergenerational impacts on vulnerable Victorians. 

Very regrettably, Ms Day’s story reflects a much larger, systemic issue across Victoria. The human impacts of the criminalisation of public drunkenness are borne out clearly in the data. What the data tells us is that the criminalisation of public drunkenness discriminates against vulnerable people, and in particular Aboriginal and/or Torres Strait Islander people, Sudanese and South Sudanese communities, people experiencing homelessness, substance abuse and people experiencing mental health. 

What the data also tells us is that this reform is eminently achievable. It paints a clear picture that: • the total numbers of incidences of public intoxication are very low, at 159 per week • there is a significant ’low intensity’ cohort of people, with the vast majority of people (84 percent) entering custody in these circumstances only once. However, there is also a small ’high intensity’ cohort (6.5 percent) who are responsible for over a quarter of all public intoxication offences; and • there are a small number of ’high demand’ Local Government Areas (LGAs) where a higher number of public intoxication offences occur. 

While the imperative for change is overwhelming, we are convinced that the changes required to give effect to a health-based response are not. Our work over the last year tells us that there is a clear path away from criminalisation and towards an effective health-based response to public intoxication. 

Based on data, consultations with the community and experts and drawing on the salient lessons of decriminalisation in other jurisdictions, this report outlines our Proposed Health Model for the decriminalisation of public drunkenness in Victoria. 

The design of a new health-based model to respond to public intoxication must begin with the fundamental premise that no one should be placed into a police cell simply because they are intoxicated in public. 

In order to eliminate the use of police cells for public intoxication, there must be safe places available that are accessible and appropriate to meet the health and safety needs of people who are intoxicated. We adopt a ‘supply and demand’ framework to identify the service system response that is required, based on current data on public drunkenness offences being the most appropriate indicator of expected demand for placements. 

This report outlines the public health approach that is required to achieve this transition. Our Proposed Health Model comprises five key stages: • First response • Transportation to a place of safety • Meeting the immediate health needs of an intoxicated person • Providing health and social care pathways for high needs individuals • Broader prevention strategies. 

First response 

An effective health-based approach demands a cultural shift in the characterisation of intoxication as a health rather than a law enforcement issue. The primary First Responders should be personnel from health or community services organisations, such as outreach services (including existing outreach programs associated with homelessness services), alcohol and other drugs (ADO) services and Aboriginal Community Controlled Organisations (ACCOs). While emergency services such as Victoria Police and Ambulance Victoria will play an important role, a range of health-based services must be supported to meet the levels of expected demand across the state. 

Transport 

The preferred and default position is that an intoxicated person organises his/her own transport or does so with the assistance of family or friends. In situations where this is not possible due to health or safety risks, a range of new transport options will be required. Victoria Police will only have a role to play in the transportation of an intoxicated person when there are no other options available. The new range of transport options, in combination, will need to be capable of responding to the expected demand based on geography, time distribution and particular individual circumstances, including health needs and cultural safety. 

Places of safety 

Places of safety are essential to ensuring the health and wellbeing needs of intoxicated people are addressed. Depending on the circumstances, intoxicated people who pose a safety risk to themselves and/or others should, in general, be transported to a private residence, an emergency department or urgent care centre if they require urgent medical care, or a sobering service if they require a short recovery period and cannot be cared for elsewhere. 

New sobering services are integral to our Proposed Health Model. Based on the data, seven new sobering services in high demand areas will provide the capacity to meet the variances in demand across the state. In regional and rural locations where there is much lower demand, the best health response solutions should be locally devised involving engagement of health services and the communities they serve. The expansion of the sobering services network should be combined with modular ’pop-up’ services to expand capacity in a rapid and flexible manner to respond to demand associated with specific sporting or cultural events. 

Health and social care pathways and broader prevention strategies 

A significant minority of people who present intoxicated in public more frequently are likely to be experiencing complex health and welfare challenges that are contributing to their drinking patterns. Increased access to follow-up or ongoing support is a key element of an effective public health approach to public intoxication. This requires improved service pathways and targeted approaches, such as filling the gaps in AOD services for Aboriginal and/or Torres Strait Islander people. 

Under a public health approach, broader prevention strategies also play a valuable and effective role in reducing the impacts of high-risk drinking by addressing underlying causes. 

The path forward 

The major thrust of our recommendations is clear – an effective health-based service system response to public intoxication is absolutely essential for the proposed reforms to be effective. Cultural safety considerations must be at the core of both design and implementation. This requires ongoing consultation and co-design with health services and their staff and with particularly affected communities, such as Aboriginal and CALD communities, to ensure that localised responses are developed that are tailored and effective. 

In light of the complexity involved in the development of the Proposed Health Model, we recommend that a phased implementation take place over a two-year transition period. This will enable the model to be trialled and statewide service infrastructure put in place before full decriminalisation takes effect. 

With detailed attention given to implementation of our Proposed Health Model, we are confident that a shift from a criminal justice approach to a health-based model is both realistic and attainable. 

While the journey to decriminalisation in our state has been long and painful, Victoria now has the opportunity to leapfrog other Australian states and territories and be at the forefront with the development of an innovative and transformative health-based approach to public intoxication. 

Once the shackles of a criminal justice approach to public intoxication have been shed, there can be no going back. The path ahead lies in a comprehensive health-led response that recognises public intoxication for what it is – a public health issue and not one that can be addressed by a blunt and reactive criminal justice approach. 

There is strong community support. The Victorian Government’s commitment is clear. Now is the right time for this long overdue reform to begin. Now is the time to see the clear light of Day.

The recommendations are 

The ERG’s recommendations for a public health response to public intoxication cover the following: • a public health response to public intoxication • various phases required to adopt the ERG’s Proposed Health Model; and • key implementation considerations relating to the successful transition away from the current criminal justice response. 

The journey to decriminalisation 

1. The Expert Reference Group acknowledges the Victorian Government’s acceptance of the coronial findings made by the Deputy State Coroner in the Inquest into the Death of Tanya Day and strongly encourages their full implementation by the Attorney-General, Chief Commissioner of Victoria Police, CEO of V/Line and Secretary of the Department of Justice and Community Safety (DJCS). 

Implementing a public health approach to public intoxication 

2. The Victorian Government repeals the offence of public drunkenness in sections 13, 14 and 16 of the Summary Offences Act 1966 to achieve the decriminalisation of public drunkenness. 3. The Victorian Government ensures no person is detained in a police cell solely for being intoxicated in public. 

4. The Victorian Government should adopt a ‘supply and demand’ approach that identifies the current number of public drunkenness offences as the most likely indicator of the number of placements that that will be required in sobering and other health services under the Proposed Health Model. 

5. The Victorian Government ensures the implementation of the Proposed Health Model takes into account the need for holistic health-based responses that are also capable of responding to drug use and experiences of mental health, including dual diagnosis, where possible. 

6. The Victorian Government undertakes further consultation to ensure that the management of intoxicated people, who have committed criminal offences, and are incarcerated in police cells can be more effectively supported and comply with the mandatory terms of Victoria Police’s governing policy and procedures, including proper medical supervision and access to health treatment where required. 

Stage 1: First responders Roles and functions of first responders 

7. All first responders under the public health model (whether justice-based or health-based first responders) perform their respective roles and functions in such a way as to ensure the health and safety of individuals who are intoxicated in public, consistent with the principles underpinning the public health model. 

First response services and agencies 

8. The Victorian Government considers how the Emergency Services Telecommunications Authority (ESTA) process can change regarding determining what tasks can be referred to certain response agencies in order to promote a health-based response to incidents of public intoxication. This should include how such alternate agencies can be facilitated through such a process – having regard to the contractual arrangements ESTA has with emergency services agencies. 

Consent and powers of Victoria Police Threshold for police powers 

9. The Victorian Government establishes a legislative basis for Victoria Police to detain an intoxicated individual in strictly limited circumstances, including that: a) the Victorian Government defines intoxication within the legislation as ‘affected or apparently affected by alcohol or a drug or other substance to such an extent that there is a significant impairment of judgement or behaviour’ b) the Victorian Government limits the threshold for police with regards to someone who is intoxicated to ’serious and imminent risk of significant harm to the intoxicated individual or other individuals’ c) the Victorian Government explores the appropriate assessment of this threshold which should have an objective element, such as a reasonable person test. 

Strict limits to police powers 

10. The Victorian Government establishes a legislative basis for Protective Services Officers (PSOs) within Victoria Police be given the power to detain an intoxicated individual in an existing designated place and is at serious and imminent risk of significant harm to themselves or others, recognising the safeguards contained in other recommendations. 

11. The Victorian Government does not extend the power to detain an intoxicated individual who is at serious and imminent risk of significant harm to themselves or others to any other cohort. 

12. The Victorian Government legislates to ensure detention ceases at the moment that the threshold of serious and imminent risk is no longer met, whether this is due to a change in the environment or the person’s personal circumstances (e.g. their degree of intoxication has sufficiently decreased). 

13. The Victorian Government limits the power to detain an intoxicated individual who is at serious and imminent risk of significant harm to themselves or others for no longer than 60 minutes. Any exception to this time limit required to arrange a safe placement should require the authority of a Divisional Patrol Supervisor or Inspector. 

14. The Victorian Government does not establish a specific offence as a result of the establishment of police powers to detain for the purpose of making inquiries to identify a place of safety for an intoxicated person. 

15. The Victorian Government implements a review process for any charges laid in relation to assault police arising from attempts to escape by a superior officer, such as an Inspector. 

Conditions of detention and use of force 

16. The Victorian Government takes steps to ensure that in accordance with the Victorian Charter of Human Rights and Responsibilities Act 2006, Victoria Police exercise their powers to give effect to the least restrictive means of achieving their objective, in terms of both the decision to detain and the nature of restraint employed. 

17. The Victorian Government ensures Victoria Police takes steps to ensure the full protection of the health of persons in their custody and in particular, shall take immediate action to secure medical attention whenever required. 

18. The Victorian Government explores and consults with relevant stakeholders on how to ensure treatment during and conditions of detention of intoxicated people are consistent with relevant state and international human rights obligations and principles. This includes ensuring effective independent oversight of the detention of intoxicated people that is consistent with the Optional Protocol to the UN Convention against Torture (OPCAT). 

19. Victoria Police takes steps to ensure officers use force only when strictly necessary, and the force used must be proportionate to the circumstances. The degree and nature of the force used must account for the fact that the purpose of the power to detain is to keep the person safe from harm. Thus, any use of force must be used by exception and the force used itself minimal. 

Limits on police discretion 

20. The Victorian Government creates comprehensive regulations, guidelines, policies and procedures on the operationalisation of the legislation, to ensure police discretion is applied appropriately and reasonably to all members of the community. 

21. The Victorian Government establishes legislation to ensure police discretion in assessing whether a location is a safe place is limited, including but not limited to risk of family violence and instances where the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling them. 

Training 

22. Victoria Police provides police officers and PSO with training on the legislative amendments, regulations, guidelines, policies and procedures and be provided ongoing refresher training. 

23. Victoria Police provides police officers and PSO with training on systemic racism, unconscious bias, culturally appropriate service delivery, effective communication, de-escalation and conflict resolution, and be provided ongoing refresher training. 

24. Victoria Police provides police officers and PSO with training on mental health and disability and be provided with ongoing refresher training. 

Record keeping obligations of police 

25. Victoria Police keeps detailed records of the enquiries they make in relation to locating a safe place for the person, including any reasons for concluding that the location is not a safe place, such as risk of family violence. 

Publicly available information 

26. Victoria Police ensures guidelines, policies, procedures and training and other similar materials are publicly available. 

27. The Victorian Government considers making disaggregated data relating to police assistance provided with consent, and police intervention without consent, publicly available. This information should include, but not be limited to, information with regards to whether people are Aboriginal and/or Torres Strait Islander, CALD status, homelessness, gender, disability and age. 

28. The Victorian Government implements public reporting on the exercise of new police powers and other relevant powers that may be used more frequently subsequent to the reform (e.g. move on powers), as well as arrests for other minor offences. 

Internal police oversight 

29. Victoria Police ensures authorisation of any charges that arise from an incident of public intoxication should be authorised by an Inspector. 

Independent oversight 

30. Victorian Government, in consultation with the Victorian Aboriginal Legal Service and Victoria Police, considers the introduction of a mandatory requirement that where an intoxicated Aboriginal and/or Torres Strait Islander person is detained and/or transported for their safety by Victoria Police they be subject to sections 464AAB and 464FA of the Justice Legislation Miscellaneous Amendment Act 2018. 

31. The Victorian Government empowers an oversight body, such as the Victorian Ombudsman, to adjudicate complaints and conduct investigations in relation to the implementation and operation of these reforms by police. This should include oversight of up-charging practices by police, and the treatment of people detained and conditions of detention during transport. 

Accountability for police negligence and abuse of power 

32. The Victorian Government ensures any abuse of power by police to circumvent the limitations on powers to detain an intoxicated person must be treated seriously and they should be held accountable. 

33. The Victorian Government undertakes further research and consultations to establish an offence in relation to negligent conduct when detaining an individual who is intoxicated. 

Stage 2: Transport to a place of safety 

Guaranteeing transport coverage and availability 

34. The Victorian Government supports outreach teams and sobering services to have a transport capability attached to their service or work together with separate transport teams to achieve the most effective and efficient management of demand. 

35. The Victorian Government ensures that the proposed implementation phase gives local areas an opportunity to test a range of low-demand transport models, including the identification and development of local partnerships. 

36. The Victorian Government ensures that the implementation phase monitors the impact on police and ambulance emergency services, including impact on response time performance measures. 

Consent and powers 

37. The Victorian Government establishes a legislative basis for Victoria Police to transport an intoxicated individual to a place of safety in strictly limited circumstances, including that: a) there be a legislative obligation that police exhaust all other avenues by which an intoxicated person could be transported to a safe place, and that police transport be a last resort b) the Victorian Government does not establish a specific offence as a result of the establishment of police powers to transport intoxicated individuals to a place of safety c) the Victorian Government ensures that all limits, thresholds and accountability measures in relation to the power to apprehend and detain, as outlined in Part 7 of this report, apply to the exercise of the limited power to transport intoxicated individuals to a place of safety. 

Transport safety 

38. The Victorian Government establishes a transport safety standard to ensure the safe transport of intoxicated people. 

Stage 3: Places of safety 

39. The Victorian Government ensures intoxicated people who pose a safety risk to themselves and/or others should, in general, be transported to one of three safe place locations to sober up, including to: a) their home or other private residence where it is determined that the individual is at low- risk and can be adequately and safely cared for by family or friends b) an emergency department or rural trauma and urgent care centre where it is determined the individual requires urgent medical assessment and/or care; or c) a health or sobering service where it is determined the individual does not require emergency care but still requires a short period of recovery and detoxification and/or cannot be cared for safely elsewhere. 

40. The Victorian Government ensures that a home or other safe private residence remain the preferred and default safe place option to assist people with sobering needs. Wherever possible and appropriate, an intoxicated person should be safely cared for by family or friends in order to minimise the impost on health services. Additionally, people who reside alone should not by default be taken to a sobering service simply because they do not have someone to care for them. 

41. The Victorian Government ensures the key elements of intake, assessment, monitoring, further assessment and intervention form the model of care for sobering services in Victoria that comprises: a) outreach and transport services as a key element of a model of care for sobering services in Victoria b) the workforce for sobering services should be multidisciplinary and at a minimum including a health practitioner, such as a registered nurse, and reflect the profile and the needs of the population and region it serves c) a staff to client ratio between 1:6 and 1:8, which would be a reasonable starting point subject to detailed implementation planning for each location and any variations to a core model. 

42. The Victorian Government considers modular health spaces as an infrastructure approach to trialling heath responses as part of the proposed implementation phase, given they are an increasingly accepted part of the health infrastructure mix, offering expanded capacity that can be deployed rapidly and flexibly to meet need. 

43. The Victorian Government expands the Mental Health and Alcohol and Other Drug (ADO) Hubs model of care to enable them to provide sobering services as part of their model of care. This may require additional government investment above that initially allocated. 44. The Victorian Government supports the re-location and substantial expansion of Ngwala Willumbong Sobering Service to service Melbourne’s northern region which will require additional government investment. 

45. The Victorian Government considers whether the rural trauma and urgent care centres could be an effective option for provision of sobering services, and if so, infrastructure may need to be boosted to provide dedicated sobering up placements, where required. 

46. The Victorian Government enhances the capability of the existing health system in areas of low demand in regional and rural Victoria to enable medically supervised sobering up placements. 

47. The Victorian Government establishes both permanent and ’pop-up’ sobering services in LGAs with high demand. The permanent services should operate 24-hours a day seven days a week, with capacity to scale up services at peak times. 

Consent to medical treatment 

48. The Victorian Government establishes a legislative basis for medical practitioners to apprehend or detain an intoxicated individual, where they do not consent to treatment, in strictly limited circumstances, including that: a) the Victorian Government defines intoxication within the legislation as ‘affected or apparently affected by alcohol or a drug or other substance to such an extent that there is a significant impairment of judgement or behaviour’ b) the Victorian Government ensures that limits for the threshold for medical intervention with regard to someone who is intoxicated is serious and imminent risk of significant harm to the intoxicated individual or other individuals c) the Victorian Government explores the appropriate assessment of this threshold which should have an objective element, such as a reasonable person test. 

Safeguards 

49. The Victorian Government legislates to ensure detention ceases at the moment that the threshold of serious and imminent risk is no longer met, whether this is due to a change in the environment or the person’s personal circumstances (e.g. their degree of intoxication has sufficiently decreased). 

50. The Victorian Government ensures health practitioners are required to regularly assess the ongoing need for detention, including upon admission if detained during transport and through regular assessments of whether informed consent can be secured. 

51. The Victorian Government ensures detention for the purposes of the sobering up of an intoxicated person should be a last resort and is limited by appropriate safeguards. 

52. The Victorian Government considers the matters highlighted in the Restrictive Interventions in Victorian Emergency Departments: A Review of Current Clinical Practice commissioned by the Department of Health and Human Service must be addressed by the Victorian Government. 

53. The Victorian Government ensures medical practitioners exercise their powers to give effect to the least restrictive means of achieving their objective, in terms of both the decision to detain and the nature of the restraint, in accordance with the Victorian Charter of Human Rights and Responsibilities Act 2006. 

54. The Victorian Government implements robust safeguards, including comprehensive legislation, regulations, and guidelines, policies and procedures on the operationalisation of the legislation. This is to ensure, for example, that medical practitioners use sedation and other chemical and mechanical restraints on intoxicated people appropriately. 

55. The Victorian Government ensures that medical practitioners: a) maintain appropriate written records, including the reasons for the order, the period for which the person is ordered to be detained, the monitoring regime, treatment provided, restraints used and reasons, and discharge b) to the extent reasonably possible inform the person of the reasons for the detention and their applicable rights c) take reasonable steps to notify the person’s nominated person, guardian or carer of their admission or detention; and d) provide the reasons for detainment and/or the use of restraint in writing to the person upon their discharge/release. 

Independent oversight 

56. The Victorian Government empowers an oversight body, such as the Victorian Ombudsman, to adjudicate complaints and conduct investigations in relation to the implementation and operation of these reforms in health service. This should include oversight of detention conditions and treatment of detained people, as well as use of mechanical and chemical restraints. 

57. The Victorian Government, in accordance with OPCAT obligations, enables the National Preventive Mechanism to have oversight when intoxicated people are deprived of their liberty, including when they are detained and/or restrained in hospitals. 

Stage 4: Health and social care pathways 

58. The Victorian Government ensures that a comprehensive service system is capable of supporting the broader health and wellbeing needs of the high intensity cohort of people, who very often experience quite complex health and welfare challenges that contribute to their drinking patterns. 

Investment in Aboriginal alcohol and other drug services 

59. The Victorian Government establishes a specific adult AOD program for Aboriginal and/or Torres Strait Islander Victorians prior to the end of the implementation phase, with Wotha Daborra considered for further development as part of this process. 

60. The Victorian Government ensures that all Social and Emotional Wellbeing teams include AOD expertise (a position outlined by the Royal Commission into Victoria’s Mental Health System) and that the role of the teams be expanded to support the government’s public intoxication reforms for Aboriginal and/or Torres Strait Islander Victorians where appropriate. 

Stage 5: Broader prevention strategies 

61. The Victorian Government continues to support and expand where necessary public awareness campaigns focused on primary prevention health initiatives that relate to the prevention of public intoxication, including the work of VicHealth. 

Implementation considerations 

Phased transition 

62. The Victorian Government ensures the Proposed Health Model is phased in over a 24-month period to enable an adequate transition from the current justice-based response to public intoxication. 

Trial sites 

63. The Victorian Government establishes at least three trial sites during the 24-month transition period to inform the development of the statewide implementation of the ERG’s Proposed Health Model. 

Governance 

64. The Victorian Government establishes a dedicated implementation office to operationalise the public intoxication reform agenda. 

65. The Victorian Government establishes a dedicated oversight committee to oversee the overall implementation of the public health approach to public intoxication and to ensure that implementation is consistent with, and gives effect to, the intention of the proposed reforms. 

Ongoing monitoring, evaluation and adaptability 

66. The Victorian Government works with affected communities, including Aboriginal and/or Torres Strait Islander, Sudanese and South Sudanese communities to develop an evaluation framework including outcomes, reporting by agencies and services, provision of data to affected communities and the involvement of affected communities in the governance model. 

67. The Victorian Government undertakes a statutory review of the reforms related to decriminalisation of public drunkenness. 

68. The Victorian Government develops a monitoring and evaluation framework in consultation with relevant stakeholders including representatives from Aboriginal and/or Torres Strait Islander and CALD communities. 

69. The Victorian Government ensures that Aboriginal Community Controlled Organisations evaluate the cultural appropriateness of the implementation and operation of the reforms. 

Cultural safety framework 

70. Consistent with its commitment to self-determination and co-design principles, particularly for Aboriginal and/or Torres Strait Islander people, the Victorian Government consults with affected communities and work wherever possible with community-controlled organisations in the design, delivery and evaluation of the public health response to public intoxication. 

71. The Victorian Government continues to support the implementation of a new funding and governance model across public health services to strengthen and improve approaches to delivery of culturally safe and responsive services for Aboriginal and/or Torres Strait community. 

72. The Victorian Government continues to support further actions via health service statement of priority processes and funding and service agreements for funded organisations to progress Reconciliation Action Plans. 

73. The Victorian Government continues to support and elevate the cultural safety planning undertaken by hospitals and the delivery of culturally safe sobering services provided in hospital settings, including: a) sobering services in hospitals are established in line with the identified six themes impacting cultural safety b) expanding the Aboriginal and/or Torres Strait Islander health workforce, including Aboriginal Health and Liaison Officers, fully utilising Weighted Inlier Equivalent Separation (WIES) loadings and other resources to adequately resource this function c) Aboriginal Health and Liaison Officers – or an appropriate equivalent - are available to support Aboriginal and/or Torres Strait Islander clients utilising sobering services, including access after-hours and on weekends; and d) undertake an audit of cultural safety in relation to both Aboriginal and/or Torres Strait Islander people and CALD communities at relevant emergency department and rural trauma and urgent care centres, and appropriate actions undertaken to address identified areas of concern. 

74. The Victorian Government works in partnership with affected communities at a local level to develop culturally appropriate service responses as part of the public health response, including building on established partnerships with Aboriginal organisations and communities (e.g. Aboriginal Justice Caucus and Regional Aboriginal Justice Advisory Committees (RAJACs), and with Sudanese and South Sudanese communities under the African Community Action Plan, where appropriate. 

75. The Victorian Government support comprehensive cultural safety training to be developed for all first responder agencies (in the justice and health systems), with localised input from, and delivery by, ACCOs and other affected community-controlled organisations, including training on: a) Aboriginal cultural awareness b) unconscious bias c) trauma-informed care d) mental health and disability e) human rights under the Victorian Charter of Human Rights. 

76. The Victorian Government supports the development and delivery of cultural safety training by ACCOs and other affected communities for all staff in services in the public health model. 

77. The Victorian Government ensures that training is provided to all first responders and services on localised service pathways and access for affected communities, including for ACCOs. This will be particularly important during the implementation phase. 

78. The Victorian Government requires that all first responders and staff in services under the public health model undergo cultural safety training, including ongoing, localised and refresher training. 

79. The Victorian Government continues to build the capacity of ACCOs and other community- controlled organisations to deliver cultural safety training in mainstream organisations, including appropriate resourcing and funding of these as professional development activities. 

80. The Victorian Government ensures that culturally appropriate safeguards and service pathways are developed for Aboriginal and/or Torres Strait Islander people coming in to contact with police, including exploring options with the Aboriginal Community Justice Panels (ACJP). 

81. The Victorian Government extends the role of Aboriginal Hospital Liaison Officers (AHLOs) to after-hours and/or implement an on-call model so hospital based sobering services also have access to Aboriginal support persons for relevant clients (noting this could also benefit all Aboriginal and/or Torres Strait Islander clients) ensuring any non-hospital services operate consistent with the eight cultural safety domains now in place at hospitals. This could include consideration of block grants for cultural safety to other health services with a primary direct role in public intoxication (i.e. Ambulance Victoria). 

82. The Victorian Government ensures that interpreters are available across the range of service system responses identified by the ERG for the proposed reform. Further consultation & co-design 

83. The Victorian Government ensures that detailed consultation and co-design occurs as it is critical to the successful establishment and implementation of a public health model. 

Local government 

84. The Victorian Government undertakes a review of relevant local laws in partnership with local government. The scope of such a review might include consideration of amendments as well as operational protocols to support the reform principles underpinning decriminalisation of public drunkenness. 

85. The Victorian Government analyses data relating to enforcement of local laws be monitored to track any unintended consequences associated with the enforcement of local laws. 

Resourcing 

86. The Victorian Government adequately resources all components of the Proposed Health Model, reflecting the interdependency between all components identified in this report.