Items in the latest Standing Council of Attorneys-General (SCAG) Communique ...
NATIONAL APPROACH TO REGULATING THE USE OF BIOMETRICS AND RELATED TECHNOLOGIES, INCLUDING FACIAL RECOGNITION TECHNOLOGY
Participants discussed the risks and benefits associated with the development and use of facial recognition technology and biometrics. They agreed the risks associated with increased use of these technologies warrant a coordinated national response and that the adequacy of regulation should be considered to ensure the risks are appropriately addressed. As the regulation of facial recognition technology and biometrics is currently being considered in the context of broader privacy policy reform, the Australian Government Digital ID system, and the National Strategy for Identity Resilience, participants agreed that the Australian Government would return to the Standing Council of Attorneys-General by the end of 2023 to provide an update on the progress of these measures, and to discuss future regulatory approaches.
MODEL DEFAMATION REFORM
On 22 September 2023, the Standing Council of Attorneys-General approved by majority the final amendments for Part A and Part B of the Stage 2 Review of the Model Defamation Provisions (MDPs), subject to some jurisdictions’ Cabinet processes where necessary.
The final Part A reforms, led by New South Wales, are intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries. In addition to the Part A amendments to the MDPs being approved, the Australian Government will prepare an exemption to state and territory defamation laws from section 235(1) of the Online Safety Act 2021 (Cth).
The final Part B reforms, led by Victoria, extend absolute privilege to matter published to police. The guiding principles attached to this communique will be used by jurisdictions to determine whether to extend absolute privilege to matter published to a complaints-handling body for the purposes of the Part B reforms.
The Part A and Part B amendments to the MDPs will be published on the Australasian Parliamentary Counsel’s Committee website. Participants agreed that jurisdictions in the majority will use best endeavours to enact the Part A and the Part B amendments to the MDPs for commencement on 1 July 2024.
Participants also agreed that there should be a review of the Stage 1 and Stage 2 amendments to the MDPs that begins no later than 3 years after the commencement of the Stage 2 amendments in all implementing states and territories.
South Australia supports the Part B reforms and aspects of the Part A reforms and will give further consideration to the Part A reforms separately from the Standing Council of Attorneys-General and other jurisdictions, as to how they might best apply to South Australian legislation.
ACCESS TO DIGITAL RECORDS SCHEME AFTER DEATH OR INCAPACITY
Participants agreed to discontinue the project to develop a national access scheme for digital records after death or incapacity. In working towards a national approach it has become clear that complex issues arise from the interaction with other legal frameworks including in relation to information privacy and succession. The wide variety of digital record holders also makes it very challenging to develop a uniform scheme that is appropriate for all. It was agreed that instead, there is merit in allowing for digital record holders to respond to these issues in a way that is tailored to their services – without the need for uniform legislation. Participants acknowledged and extended their thanks to stakeholders for their important contributions to this work.
NATIONAL COORDINATED LEGISLATIVE PROHIBITIONS ON ‘SPIT HOODS’
Participants:
(a) noted that Non-Government Organisations (NGOs) continue to express concerns about the ongoing use of spit hoods in detention settings and to argue that there are adequate alternative forms of protection for detention workers against disease transmission or injury from detainee spitting or biting, which avoid the risks to detainees posed by spit hood use.
(b) noted that the Commonwealth and several states and territories have moved to prohibit remaining uses of spit hoods in their jurisdiction, including after reviews of the efficacy of spit hoods in protecting detention workers and sufficiency of alternative forms of worker protection, or recently commenced such reviews;
(c) agreed to commit to review any residual authorities to use spit hoods in their jurisdiction; and
(d) noted that the Standing Council of Attorneys-General has now concluded its exhaustive consideration of the proposals for ceasing all remaining uses of spit hoods in detention settings.
ENDURING POWERS OF ATTORNEY LAW REFORM
Noting the importance of elder abuse law reform, participants agreed to seek public feedback on options for achieving greater consistency in enduring powers of attorney (EPOA) laws. The consultation paper Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney was endorsed for release, and it was agreed that further advice on this work will be provided to Attorneys-General in 2024, based on consultation feedback.
Participants noted the feasibility of establishing a national register of EPOAs has been examined in detail, informed by public consultation on potential approaches and an independent cost-benefit analysis of several alternative register models.
It was agreed that the current significant differences in EPOA laws and practices between jurisdictions (including different EPOA forms, requirements for validity and registration and revocation arrangements) are not conducive to establishing an effective register which is suited to users’ needs, and that there are inherent limitations associated with a national register’s ability to reduce instances of financial elder abuse. It was further agreed that establishing a national register would risk introducing complexity, unnecessary costs and practical barriers to people making and using EPOAs.
Given these limitations, participants agreed that achieving greater consistency in State and Territory EPOA laws, and greater emphasis on education and awareness raising aimed at reducing elder abuse occurring through EPOAs, should be the focus of the Standing Council of Attorneys-General EPOA law reform work.
Participants noted work is continuing on the development of a successor National Plan to the National Plan to Respond to the Abuse of Older Australians 2019 – 2023.
