Vetting

The Canberra Times reports "A former Soviet soldier has pleaded guilty to using restricted federal police databases to stalk an ex-girlfriend who left him over his marriage to a Russian woman". Privacy aspects aside, the reporting is interesting for indications of vetting failures at the Australian Federal Police.

In June the CT reported that "A former Australian Federal Police counter-terrorism member managed to hide two foreign passports, a Russian bride with a seemingly forged ID, his chequered past with NSW police, and Bulgarian property interests from his employer, a court has heard." Roman Eiginson reportedly entered Australia in 1991 using a Soviet Union passport, having worked as a soldier and police officer. "He became an Australian Protective Service officer in 2001, and was absorbed into the AFP, where he worked in the counter-terrorism area and, most recently, the treasury section."

 Eiginson attracted attention earlier this year when his now ex-girlfriend accused him of stalking. 

Investigations later revealed that Eiginson had allegedly accessed protected AFP information from a police database to help track down his ex-lover's new partner in an apparent attempt to split them up. He was arrested and charged ... 

The court heard police, upon raiding his house, had found a passport that pictured Eiginson's wife but under a different name. The AFP, who require employees to tell them of relationships with foreign nationals, say they had no knowledge of Eiginson's Russian wife or her potentially fake passport. A federal agent said there were fears that Eiginson himself may be able to get access to fake passports. Police say they have also found a Kazakh passport, a Ukrainian passport, and know of an Australian passport, all in Eiginson's name. 

The AFP said they had no idea about the existence of the Ukrainian passport or the Kazakh passport, which has expired, while Eiginson was employed with them. 

The raid also uncovered NSW police uniforms, and the AFP later found out that Eiginson had been a recruit with NSW police. 

But it emerged he was not offered a spot in the force due to allegations he plagiarised from another student. The AFP, again, was not aware of that information during Eiginson's employment.

Oops

His bail hearing noted

when he was arrested, Mr Eiginson had in his possession a police warrant card and a badge, neither of which items had been issued to him.

The CT goes on to comment

Eiginson, police say, had also neglected to tell the AFP that he was in a de-facto relationship with the ex-partner who has now accused him of stalking. 

He is facing six charges, including stalking, divulging prescribed information, and unauthorised access of prescribed information. 

The court heard a number of "sensitive" investigations are ongoing, and that the Department of Immigration and Border Protection were also looking into the matter.

Students

'Who’s Distressed? Not Only Law Students: Psychological Distress Levels in University Students Across Diverse Fields of Study' by Wendy Larcombe, Sue Finch and Rachel Sore in (2015) 37(2) Sydney Law Review 243 comments

Empirical studies consistently find that law students report high levels of psychological distress. But are law students at heightened risk among their university peers? The few available comparative studies suggest that law students may experience higher levels of psychological distress than their counterparts in medical degrees. However, data are scarce that compare the distress levels of students in law with students in non-medical programs. The study reported here addressed that gap by comparing the prevalence of psychological distress among law students and non-law students undertaking diverse academic programs at both undergraduate and graduate levels. The findings show that a significant proportion of students in diverse fields and at all levels of study reported high levels of psychological distress. Moreover, the law students’ odds of reporting severe symptoms of psychological distress were not the highest on any of the measures used. Overall, the findings suggest that law students are not alone among university students in experiencing high levels of psychological distress. We discuss the implications of this finding for current efforts to address student wellbeing in legal education.

The authors state

Empirical studies in the United States and Australia have consistently found that law students experience high levels of psychological distress. While results from the various studies are generally not directly comparable, the consistency in findings seems to indicate that there are common factors in legal education that contribute to student distress, notwithstanding wide variations in teaching practices, learning environments and regulatory frameworks across institutions and countries. Factors ‘typical’ of legal education posited to undermine students’ mental wellbeing include: the competitive academic environment in law schools, exacerbated by normative grading and heavily weighted exams; high-stakes prizes for achievement (narrowly defined) and the shrinking legal job market; an emphasis on analytical, adversarial argumentation at the expense of experiential and value-driven thinking; high student–teacher ratios and traditional or Socratic teaching methods that further preclude students’ formation of meaningful interpersonal relationships with teachers and classmates; a highly constrained curriculum (driven by admission to practice requirements) that limits students’ exploration of established or emerging interests; high workloads, especially reading requirements, coupled with the conceptual challenges involved in learning to ‘think like a lawyer’; and the self-selection into law of certain ‘personality’ types who may tend to be driven, perfectionistic or achievement-oriented.  

In an effort to redress and minimise such stressors, law schools in Australia have introduced a range of initiatives and reforms in recent years. Many of these have been informed by a branch of psychology called ‘Self-Determination Theory’ (SDT), especially as it has been applied to legal education by Kennon Sheldon and Lawrence Krieger in the US. SDT posits that there are ‘basic’, universal psychological needs that must be consistently met — across the different domains of life — to sustain intrinsic motivation and psychological wellbeing. Applied to legal education, SDT-informed research and practice concentrates on students’ needs for relatedness, or meaningful connections with others, competence and autonomy and the ways in which these needs may be supported (or undermined) by conditions and practices in specific learning and institutional environments. Assessment practices, curriculum design, cohort interactions, law school culture, and strategies to build competence in ‘threshold’ discipline skills are often the focus of SDT-informed work in legal education. Insights from Positive Psychology have also been drawn on in more student-centred wellbeing initiatives. These typically aim to build students’ psychological literacy and resilience, self-management and relationship skills, and develop cognitive strategies to manage uncertainty, change and adversity. Such initiatives are likely to have multiple benefits for law students, during and beyond law school. However, their impacts on students’ levels of psychological distress have not been empirically assessed to date. Moreover, the impact of law schools’ efforts to improve student wellbeing will be limited or even undermined if external or environmental causes of law student distress are not also addressed.  

An important, but as yet unanswered, research question is whether it is legal education that is particularly stressful for students. There is some evidence to suggest that university students in general experience high levels of psychological distress. These findings are supported by data from university health and counselling services who report increased demand from students, and also increasing numbers of students experiencing severe mental health difficulties. Some United Kingdom (UK) commentators suggest that the pressures on university students have increased in recent years as a result of reductions in government allowances, widening participation agendas and more limited job prospects for graduates — factors common to other national contexts. Australian research highlights changes in the university ‘student experience’ as students spend less time on university campuses and more time in paid employment. Moreover, when on campus, increases in student intakes and class sizes make it more difficult for contemporary students to feel they are known by university staff members and to make friends in classes. The extent to which such factors may be prompting psychological distress among university students is not yet known.  

It is also unknown whether law students are presently at heightened risk of experiencing psychological distress among their university peers. Most of the research with general university student populations has not collected data on students’ field of study or academic discipline. However, for legal educators, the question of whether law students experience higher rates of psychological distress than students in other academic disciplines is of considerable importance, particularly in guiding work to support student mental wellbeing. In short, knowing whether law students are at increased risk relative to other cohorts of university students can tell us where and how to direct attention and resources. In particular, such knowledge would afford legal educators some insight into the extent to which law-specific curricula or ‘personality’ factors may be contributing to the high levels of distress reported by law students. Similarly, knowledge of relative risk would afford insight into the extent to which study in other disciplines contributes to student distress. Given that many law students in Australia undertake ‘combined’ degrees — combining study in law with another Bachelor program — it is particularly important to know whether efforts to support law student mental wellbeing may be more effective if designed in collaboration across disciplines. In this way, studies of student psychological wellbeing that investigate academic discipline (or field of study) can contribute to evidence-based, good practice in supporting university student mental health.  

Data are scarce that compare the mental wellbeing of students in law with students in other fields of academic study. Moreover, almost all the limited existing research has compared the mental health of medical and law students, on the basis that both programs are academically challenging, entry-to-profession degrees with demanding workloads. Medical educators, like legal educators, have been concerned for decades about the impacts on future practitioners of forms of professional training that appear to produce or trigger very high levels of psychological distress. And, while medical training has long been considered ‘high pressure’, studies comparing medical and law students’ distress levels have often found that the law students report even higher levels of psychological distress (on a range of measures) than their counterparts in medical degrees. While this suggests that law students are exposed to particularly high levels of psychological stress, the assumption that law and medicine are inherently more stressful than other academic courses — professional or general — should not remain untested. Particularly when medical graduates have almost unparalleled job security, they may not be the closest comparator for contemporary law students. Research is needed that investigates whether law students are at heightened risk of experiencing psychological distress when compared with university students studying in different types of academic programs — professional and general. The study reported here addressed that need by investigating the prevalence and severity of symptoms of psychological distress among law students and nonlaw students enrolled in diverse fields of study at both undergraduate (Bachelors) and postgraduate (Masters) levels. The analysis draws on data collected in a study of student wellbeing conducted in 2013 at The University of Melbourne, a large metropolitan university in Victoria, Australia.  As detailed below, more than 4,700 students from six faculties/schools participated in the study by completing an anonymous, online questionnaire that included the DASS-21 — a short version of the Depression, Anxiety and Stress Scales. This article reports the DASS results for the law student sample and places those results in the context of published DASS results for other law students and general population samples. The law and non-law students’ results from the study are then compared in terms of the mean DASS scores for each scale and the odds of reporting severe or extremely severe DASS scores.  

Our law students’ DASS scores support earlier research that suggests a substantial proportion of law students experience high levels of psychological distress. However, our comparative analyses indicate that, when law students’ levels of psychological distress are taken as the baseline, there are few statistically significant differences in the results of non-law student cohorts. These findings suggest that law students are not alone among university students in experiencing high levels of psychological distress. Indeed, law students may not be at highest risk among their university peers.  

The article is organised as follows. Part II reviews published research that compares the psychological distress levels of law students with those of other cohorts of university students. Part III outlines the methodology used and the participant sample in the 2013 study. Part IV reports the law students’ DASS results in relation to other law student samples, as well as normative community samples. Part V compares the DASS results of the law students and the non-law students in the 2013 study. Finally, in Part VI we discuss the implications of the reported findings for work currently being undertaken in law schools to better support student mental wellbeing. Suggestions for further research are also offered.

Helicoptergate

The Prime Minister has announced an inquiry into 'an independent parliamentary entitlements system' as a response to ongoing revelations about problematical claims by former Speaker Bronwyn Bishop.

The media release indicates that  David Tune AO PSM and  John Conde AO will co-chair a committee to "develop and propose models to deliver an independent parliamentary entitlements system", with a report in the first half of next year.

The Government believes an independent framework should be created to set and monitor parliamentary entitlements so that the system is more transparent and accountable.

The Government acknowledges that the ad hoc and piecemeal reforms adopted by successive governments mean the system is complex, ambiguous and out of step with community expectations. Rather than another series of changes that merely tinker at the edges of the system, it is time for fundamental reform aimed at inserting independence into the system that sets and monitors the use of parliamentary entitlements.

The objective will be to establish a workable system for authorising potentially contentious expenditure before it has occurred.

The committee will provide options for the creation of an independent parliamentary entitlements system. In developing options for independent oversight, the committee will consider:

• Reducing ambiguity in what constitutes official business; 

• Providing clarity to members of Parliament and their staff about their entitlements and how to use them appropriately; 

• Improving transparency of the rules and entitlement usage; 

• Acknowledging the role of party business in parliamentary business; 

• How to deal more effectively with alleged misuse of entitlements; and 

• How best to support and enable Members of Parliament to conduct their varied duties within clearly defined rules.

In considering this framework, the committee should also examine whether other senior officials, subject to Remuneration Tribunal determinations on salary and entitlements should also fall under a new independent system.

The committee will consider and present options to implement an independent parliamentary entitlements system.

In so doing, it will consider the operation and interaction of the current Remuneration Tribunal determinations and relevant Acts, Regulations, Ministerial determinations and Department of Finance rules and guidelines. It will give due consideration to the diverse nature of Australia’s federal constituencies and the different activities of Members and Senators.

The committee will look at international best practice across comparable parliamentary systems and will call for submissions from interested parties. This committee will be supported by a Secretariat in the Department of the Prime Minister and Cabinet.

PNR

The European Parliament’s Civil Liberties Committee has approved the EU Passenger Name Record (PNR) Directive, which provides for mandatory provision and retention on a central searchable database of information about passengers booked on flights originating outside the EU or leaving the EU.

The information will only be accessed "if a serious crime is suspected, such as human and drug trafficking, child sexual exploitation or money laundering as well as terrorism". Data will be stored on a central database for 30 days, before deidentification. Data will be retained for up to five years and can be “unmasked” after a request by authorities.

The data collected will be drawn from airline bookings, potentially could include the passenger’s contact information, travel routes, computer IP address, hotel bookings, credit card details and dietary preferences.

The Cameron Government is reported as being keen to extend the Directive to all airline flights within Europe (i.e. domestic travel).

In 2011 the Article 29 Working Party commented [PDF] -

The Working Party considers that the fight against terrorism and organised crime is necessary and legitimate and personal data, and in particular some passenger data, might be valuable in assessing risks and preventing and combating terrorism and organised crime. However, in the case of a European PNR system the limitation of fundamental rights and freedoms has to be well justified and its necessity clearly demonstrated so as to be able to strike the right balance between demands for the protection of public security and the restriction of privacy rights. 

The Working Party has consistently questioned the necessity and proportionality of PNR systems and continues to do so with the 2011 proposal. While we appreciate the extra detail provided in the impact assessment, we consider that it does not provide a proper evaluation of the use of PNR and does not demonstrate the necessity of what is being proposed. The proposal should be clear about whether the aim is to fight serious (transnational) crime, which includes terrorism; or whether the aim is to fight terrorism and terrorism-related crimes only. 

Chapter 3.2 of the impact assessment “Respect of fundamental rights” merely states that the Fundamental Rights Check List has been used, but there is no further information about this assessment to justify its conclusions. In addition, this chapter provides circular reasoning for the interference with privacy rights under Article 8 of the European Convention of Human Rights, and Articles 7 and 8 of the Charter on Fundamental Rights of the European Union. The legal precondition for interfering with these rights is that it is “necessary in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” as well as being "necessary in a democratic society” and “subject to the principle of proportionality”. The fact that the purpose of the proposal is the prevention of terrorism and serious crime does not mean it clearly complies with these requirements; the necessity and proportionality have still to be proven. 

The Working Party goes on to comment

Under the proposal, a huge amount of personal in formation on all passengers flying into and out of the EU will be collected, regardless of whether or not they are suspects. Collecting and processing PNR data for the fight against terrorism and serious crime should not enable mass tracking and surveillance of all travellers. The Working Party considers it disproportionate and therefore not in line with Article 8 of the Charter of Fundamental Rights to collect and retain all data on all travellers on all flights. As previously mentioned above, the impact assessment does not include convincing evidence in this respect. EU-level proposals should be specific and targeted to address a particular issue and in this context the focus of any proposal should be on the risks posed by terrorism and serious crime. 

The Working Party has serious doubts about the proportionality of the systematic matching of all passengers against some pre-determined criteria and unspecified “relevant databases”. It is not clear how these pre-determined criteria and relevant databases are to be defined, whether PNR data will be used to create or update the criteria, and to what extent all matches will automatically become subject to additional investigations. The Working Party would also like to recall that in some Member States similar methods of policing are only constitutional and therefore available to the police on judicial approval and under specific circumstances, such as a specific threat. The proposed PNR system would render this exceptional method an ordinary instrument for police work. Measures put in place that cannot provide for the protection of the rights and freedoms of travellers are only proportionate when introduced as a temporary measure for a specific threat, which is not the case for this proposal. The invasion of privacy of travellers must be proportionate to the benefits as regards fighting terrorism and serious crime. The Working Party has yet to see any statistics showing the ratio between the number of innocent travellers whose PNR data was collected to the number of law enforcement outcomes resulting from that PNR data.

Influence

'McCloy v New South Wales: Developer Donations and Banning the Buying of Influence' by Anne Twomey in  (2015) 37 Sydney Law Review 275  states

McCloy v New South Wales involves a challenge to the capping of political donations and the imposition of a ban on both indirect donations and donations from property developers in relation to New South Wales elections. If the challenge is successful, it would seriously damage the ability of state governments to take measures to prevent the risk and perception of corruption and undue influence arising from the unfettered making of political donations. While it is likely that the provisions capping donations and banning indirect donations will survive scrutiny by the High Court, the provisions most vulnerable to attack are those that single out property developers, banning them from making any donation at all.

Twomey comments

In McCloy v New South Wales (High Court of Australia, Case No S211/2014’), the High Court of Australia will face the question of whether to bring down the whole edifice of election campaign finance law in New South Wales (NSW) on the ground that it unduly burdens the implied freedom of political communication by limiting the funds available to pay for that communication. ... 

The challenge was brought by Mr Jeff McCloy, a property developer and then Lord Mayor of Newcastle, after hearings by the Independent Commission Against Corruption (‘ICAC’) revealed that he had made donations in excess of $31 500 to, and for the benefit of, candidates in connection with the NSW election of March 2011. In addition, one of his companies paid $9975 in remuneration to a person who was working on the campaign staff of an election candidate, amounting to an indirect campaign donation. These donations occurred at a time when political donations in relation to the NSW election were capped at $5000, indirect donations were banned and political donations by property developers were also banned. On 28 July 2014, McCloy commenced proceedings in the High Court of Australia challenging the validity of s 96GA of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (‘EFED Act’), contending that it breached the implied freedom of political communication. This provision prohibits certain persons and corporations, including property developers, from making political donations. No challenge was initially made to other provisions of the Act. The scope of the challenge was later expanded, as it appeared from the facts that McCloy may also have breached provisions that imposed a cap on donations and prohibited the making of indirect donations. Accordingly, the proceedings now also challenge:

• the validity of the scheme for imposing caps on donations (EFED Act pt 6 div 2A); 

• the banning of indirect donations (EFED Act s 96E); and

• the banning of donations from all categories of prohibited donors (EFED Act pt 6 div 4A).

No challenge has been brought to the cap on electoral communications expenditure or the disclosure regime in the EFED Act. However, if the cap on political donations is held invalid, the cap on expenditure would inevitably fall in the future, as it imposes a more direct limitation upon political communication. Hence, all that would be likely to survive, if McCloy were fully successful in his challenge, would be the disclosure regime.

Biopolitics

'Childhood, Biosocial Power, and the “Anthropological Machine”: Life as a Governable Process?' by Kevin Ryan in (2014) 15 (3) Critical Horizons 266-283 examines

 how childhood has become a strategy that answers to questions concerning the (un)governability of life. The analysis is organised around the concept of “biosocial power”, which is shown to be a particular zone of intensity within the wider field of bio-politics. To grasp this intensity it is necessary to attend to the place of imagination in staging biosocial strategies, i.e. the specific ways in which childhood is both an imaginary projection and a technical project, and to this end Agamben’s concept of the “anthropological machine” is used to examine how biosocial power has been assembled and deployed. The paper begins with the question of childhood as it was posed toward the end of the nineteenth century, focusing on how this positioned the figure of the child at the intersection of zoē and bios, animal and human, past and future. It ends with a discussion on how the current global obesity “epidemic” has transformed this one-time vision of mastery into a strategy of survival.

When Giorgio Agamben wrote his Homo Sacer: Sovereign Power and Bare Life, he undertook the ambitious, even audacious, task of “completing” Michel Foucault’s work on power. The literature that has since grown around this book is perhaps testimony to the fact that the study of power is unlikely to reach a terminus, i.e. to be completed in the literal sense of tidying up any and all loose ends. More intriguing, there is shadowy supplement to Homo Sacer: an other figure that seems to co-habit the “thresholds” and “zones of indistinction” that form the theoretical armature of Agamben’s exposition, and which offers a very particular way of examining the relation between zoē (“bare” or naked life) and bios (life which is “qualified”). The figure in question is that of the child.

While not the focus of Homo Sacer, elsewhere Agamben has examined childhood as an “unstable signifier”. Conceptualised in this way, childhood is a disruption between past and future, between death and life, nature and culture, animal and human – relations that appear dichotomous, but which are in fact “zones of indeterminacy”. It is through attempts to govern this indeterminacy that modern Western childhood has been constituted as a particular zone of intensity within the wider field of bio-politics, and to grasp this intensity – the way it is assembled and configured – it is necessary to attend to the centrality of the imagination in staging biopolitical strategies, that is, the ways in which childhood is deployed both as a technical project and as an imaginary projection. This article examines how childhood is one important – and largely overlooked – way in which zoē entered into the realm of politics which, for both Agamben and Foucault, “constitutes the decisive event of modernity”. The analysis begins with a specific apparatus – a technology of life – that was assembled at the turn of the twentieth century, and which takes the form of biosocial power.

By biosocial power is suggested a mode of power that shares much with Foucault’s concept of biopower but which, with the help of Agamben, is shown to be specific to childhood. The inquiry begins with the question of childhood as it was posed during the 19th century, examining how this positioned the figure of the child at the intersection of zoē and bios, animal and human, past and future. It ends with a discussion on how the current global obesity “epidemic” has transformed this one-time vision of mastery into a strategy of survival

Subpoenaed Personal Health Information

The ACT Justice & Community Safety Directorate has released a position paper on Protecting the Privacy of Victims in Court and Tribunal Proceedings of Subpoenaed Personal Health Information [PDF].

The paper states -

Victims of crime often find themselves powerless to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena. Case examples in the ACT suggest this is an area in need of legislative reform to ensure victims are protected in our legal system and are not re-traumatised through this process. This is an area of concern for the ACT Health Services Commissioner who will be providing a report to Government on this issue in coming months.

A subpoena is an order from a court or tribunal, issued at the request of a party to a proceeding, which compels the person who has been subpoenaed to give oral evidence, to produce documents, or both. Subpoenas can only be issued if legal proceedings have commenced – this applies in both criminal and civil proceedings. Failure to comply with a subpoena can be deemed to be in contempt of court, and can attract penalties of imprisonment and fines. This paper will focus on subpoenas issued to produce documents, in particular health records of health consumers who are often victims of crime.

The key issues this paper will identify is that a person’s personal health records may be subpoenaed, produced, inspected, copied and divulged to third parties, entirely without the knowledge of the person to whom the health record relates. This occurs when the person is not a party to the proceedings before a court or tribunal, and is not notified their health records have been subpoenaed and produced. A victim of crime in criminal proceedings is not a party to the proceedings.

In the ACT, there is no legal obligation that requires either the record holder, or party issuing the subpoena, to inform the health consumer that their records have been subpoenaed or produced. It is possible for a person with a ‘sufficient interest’ (for example the person to which the health record relates) to raise an objection to the production of documents, or apply to the court for an order to set aside the subpoena in certain circumstances. The grounds of objection can be abuse of process on the basis of relevance of the subpoena, the subpoena is too wide and oppressive, is a “fishing” expedition, or privilege can be claimed in certain circumstances, such as sexual assault counselling communications privilege. However, the ability to object relies on awareness that the subpoena exists, and a person who has not been informed their health records have been produced, obviously cannot raise an objection. The record holder, such as a medical practice or hospital, may raise these objections but often do not have the time or resources to do so, and also may not be able to ascertain whether information is particularly sensitive for an individual.

In our community, people expect to be able to freely and frankly disclose their personal information to health practitioners, including psychologists, medical practitioners and counsellors, and this is certainly crucial for accurate diagnosis and treatment. Consumers reveal highly sensitive information on the assumption that the communicated information will be treated confidentially.

During the 2012-2013 financial year, a single health service provider in the ACT received over 450 subpoenas to produce personal health information. This indicates that defendants (or their legal representatives) in criminal proceedings may be invading victims’ privacy by seeking personal health records on a regular basis. The impact on victims of crime who have their personal health records subpoenaed can be devastating and, in some cases, it can re-traumatise them. Victims feel their right to privacy has been violated.

There is currently a practice in the ACT of defence counsel in criminal proceedings issuing subpoenas of a broad scope to obtain highly confidential medical records. Examples of subpoenas being issued for personal health information, which raise privacy issues, include:

• A criminal defence team issued a subpoena for the entire health records of a victim from a medical practitioner. While a copy of the subpoena was served on the Office of the Director of Public Prosecutions, the victim was unaware their personal records had been subpoenaed. There is no general obligation on the prosecution to advise the victim of the existence of the subpoena. 

• In criminal proceedings, a self-represented accused person subpoenaed a copy of the entire personal health records of a victim of crime, and the contents of the records were disclosed to third parties including relatives of the accused person.This is a clear example when subpoenas have been misused. 

• A subpoena issued in proceedings in the Coroners Court that was determining the cause of death of a person. The subpoena was for the health records of all consumers admitted to a health service provider facility (hospital) with assault related injuries within a certain time period. 

• In domestic violence order proceedings in the ACT Magistrates Court, a subpoena was issued by the respondent’s solicitor, and was served on the applicant without explanation. The subpoena came completely unexpectedly and the person served was unaware what was expected of them in relation to the subpoena. 

• A criminal defence team issued a subpoena for the entirety of the victim’s psychiatric records. The victim later discovered that their entire medical file, which detailed childhood sexual abuse, suicidal thoughts and major depression, had been provided to and read by all parties to proceedings and the judicial officer earlier in the court proceedings, without the victim’s knowledge. 

• In family law proceedings, subpoenas are often issued for psychiatric records of the estranged spouse, as a ‘fishing expedition.’ Information can then be used to disadvantage the party by stigmatising them as they have consulted psychiatrists. In some situations, subpoenas may be issued as a mechanism to gain advantage using intimidation and humiliation of the opposing spouse.

There are also situations in which health records of a person who is not a party to proceedings in the ACT Civil and Administrative Tribunal are obtained, by means other than a subpoena. This may arise in health practitioner disciplinary cases involving a complaint of inadequate record keeping of a medical practitioner, and health records of numerous health consumers may be tendered in tribunal proceedings.

These examples highlight a number of issues with the current processes involving subpoenas in the ACT, and more generally, issues in relation to the release of a person’s health records. It is clear the existing legal provisions are failing to protect medical-patient confidentiality. Unfettered access to a person’s personal health records undermines a victim’s right to privacy and violates the confidential nature of health practitioner-patient relationship. Failing to safeguard confidentiality of health records poses a risk that members of our community are deterred from seeking medical attention, or not providing accurate disclosures about their symptoms, experiences and/or history, due to fear their privacy might be breached in legal proceedings.

The Directorate indicates that

Legislation should be amended to strengthen protections of privacy for personal health records. This could be achieved by amendments to the Court Procedures Rules 2006 (ACT).

Suggested amendments include:

1. A right that a person with sufficient interest be notified of the subpoena as soon as practicable after it is issued. Such a provision would require the issuing party to serve the subpoena on any interested parties, including the person to whom the health record is sought. The health consumer will then have the opportunity to challenge or object to the documents being produced.

2. A right for the health consumer to be notified if their health records are used in court or tribunal proceedings and have been obtained by means other than a subpoena. For example, documents obtained during the investigative stage of a complaint of inadequate record keeping by a medical practitioner.

3. An express prohibition on ulterior use, or disclosure to third parties, of subpoenaed personal health information. The current obligation requires that a person must only use documents obtained by subpoena for the purposes of the case before the court or tribunal, and must not disclose the contents or give a copy of any documents subpoenaed to any other person (except a lawyer representing them), without permission of the court. Self-represented litigants may not adhere to this obligation due to lack of awareness.

4. A person to which the subpoenaed health records relate, whether they are a party (or not) to the proceedings before the court or tribunal, to have the first right of access to inspect the documents that are produced to determine whether they will lodge an objection.

The court should also consider developing an information sheet to highlight rights and obligations in relation to subpoenas for personal health information and enclose that information sheet with every subpoena issued. This would assist victims of crime whose personal health records have been subpoenaed by a defendant or their legal representative to understand their rights and obligations, and how they could object to the records being released if they thought it appropriate. The law must strike a balance between a victim’s right to privacy and an accused person’s right to a fair trial. Current legislation does not adequately protect victims’ right to privacy when seeking health services and additional safeguards are required.

The quasi-privilege set out in section 126B of the Evidence Act 1995 can be used to abolish subpoenas which are unjustified and preserve a victim’s right to privacy to some extent. However, knowledge of how that section operates needs to be more widely understood. Information on how section 126B operates should be included in the information sheet, previously suggested, as a means of educating people on their rights and entitlements. The introduction of reforms aimed at protecting the rights and privacy of individuals who are the subject of subpoenas will assist victims of crime to prevent details from their past health records being aired in court or to third parties, often without their knowledge, by documents produced in compliance with a subpoena.