HCA on the Refugee Data Breach

In Minister for Immigration and Border Protection and Anor v SZSSJ and Anor; Minister for Immigration and Border Protection and Ors v SZTZI [2016] HCA 29 the High Court has today unanimously held that DIBP's processes in response to the 2014 refugee data breach did not deny procedural fairness to two former protection visa applicants.

 The breach involved inadvertent provision on the Department’s site of a document with embedded information disclosing the identities of 9,258 detailed applicants for protection visas, highlighted here. The detained people whose personal information was exposed through the breach included SZSSJ and SZTZI. KPMG investigated the breach on behalf of the Department, identifying 104 unique IP addresses (including some in jurisdictions noted for disregard of human rights) from which the document had been accessed. The Department then notified applicants affected by the breach and initiated International Treaties Obligations Assessments (ITOAs) through standardised procedures prescribed in its Procedures Advice Manual - a publicly available document - to assess the effect of the breach on Australia's non-refoulement obligations.

Officials undertaking ITOAs were instructed to assume that an affected applicant's personal information may have been accessed by authorities in the country in which he or she feared persecution or other relevant harm. SZSSJ and SZTZI were informed that ITOAs were being undertaken in accord with the Manual in relation to their protection. SZSSJ and SZTZI requested unabridged copies of the KPMG Report, following release of a substantially edited version of the Report. Those requests were refused. SZSSJ then commenced proceedings in the Federal Circuit Court of Australia, seeking relief in respect of the breach before the specific ITOA had been completed. SZTZI commenced proceedings in the Court after an ITOA concluded that her claims did not engage Australia's non-refoulement obligations. Both those proceedings were dismissed. (Other litigation is noted here.)

 The Full Court of the Federal Court of Australia however allowed their appeals, holding that they were denied procedural fairness by virtue of the Department's failures to adequately explain the ITOA processes and to provide the unabridged Report. The Full Court also rejected a submission that the Federal Circuit Court's jurisdiction to hear claims by SZTZI's and SZSSJ's were excluded by s 476(2)(d) of the Migration Act 1958 (Cth). The Minister successfully sought special leave for appeals to the High Court.

The Court today held that SZTZI and SZSSJ were owed a duty to be afforded procedural fairness in the ITOA process. However they were not denied procedural fairness. The applicants has been informed of the nature and purpose of the ITOAs and of the issues to be considered.

 The Court held that instruction given to officers conducting ITOAs to assume that SZSSJ's and SZTZI's personal information may have been accessed by authorities in the countries of concern to those applicants meant that not providing the unabridged Report did not constitute a denial of procedural fairness. The High Court also held that the Full Court correctly concluded that the Federal Circuit Court had jurisdiction to hear SZSSJ's and SZTZI's claims.

Homicide

'The Abolition of Defensive Homicide: A Step Towards Populist Punitivism at the Expense of Mentally Impaired Offenders' by Madeleine Ulbrick, Asher Flynn and Danielle Tyson in (2016) 40(1) Melbourne University Law Review comments

The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient attention given to the offence’s potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.

The authors argue

In the study of homicide, while mental illness (specifically psychotic illness) has been a common subject of investigation, this has ‘not produced a thorough understanding of mental incapacity’. Moreover, the perpetual focus on exculpation at law has ‘marginalized’ the discourse around other ways in which mental impairment can be dealt with before the law. In turn, offenders with cognitive impairments have received comparatively less academic attention. In our view, a key implication of this is that cognitive impairments are not well understood and consequently the law in this area remains unclear and uncertain.

Between 2005 and 2014, the offence of defensive homicide operated in Victoria under s 9AD of the Crimes Act 1958 (Vic), creating a safety net for an accused person who used lethal violence in circumstances of a mental illness or impairment that did not amount to the restrictive defence of mental impairment. The defensive homicide offence captured the circumstances of a fatality, where a person killed with a genuine belief that they were acting in self-defence, but where that belief was proven to be unreasonable. Accordingly, this offence sat between murder and manslaughter in terms of legal and moral culpability.

During its almost 10–year operation, 20 offenders who presented evidence of experiencing a history of mental health problems — ranging from formal diagnoses of schizophrenia, bipolar, paranoia and trauma-related mental illness, to cognitive impairments and intellectual disabilities — were convicted of defensive homicide. Fourteen of these offenders had a guilty plea accepted by the Crown; the remaining six offenders were found guilty of this alternative offence following trial.

This article presents findings from an empirical study of defensive homicide cases and sentencing judgments from the introduction of the offence in November 2005, up until 21 September 2015. Over the 10–year period, we identified 34 defensive homicide convictions. However, due to privacy restrictions on one case, we were only able to access detailed information on 33 cases. Of the 33 accessible cases, 23 (70 per cent) involved the Crown accepting an accused’s guilty plea to defensive homicide, while the remaining 10 convictions involved a guilty verdict following trial. Eighty two per cent (n=27) of the cases involved a male perpetrator and male victim; 15 per cent (n=5) involved a female perpetrator and a male victim; and one case involved a male perpetrator and female victim. In this article, we focus on the 15 cases that involved male perpetrators who presented evidence of a history of mental illness and impairment, which were: (a) acknowledged by the judge in sentencing; and (b) acknowledged by the Crown in accepting a guilty plea, or the jury in reaching a guilty verdict for this alternative offence to murder. While drawing from all 15 cases, our analysis focuses specifically on three cases in which the offenders presented evidence of either intellectual disability or cognitive impairment: R v Trezise; R v Martin; and Director of Public Prosecutions (Vic) v Chen. We selected these cases because the cognitive impairments experienced by the three accuseds do not (and would not at the time have) fit the defence of mental impairment outlined in the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (‘CMIA’). This means that these offenders would (likely) not have been able to access a mental impairment defence to claim a reduction in their moral culpability had defensive homicide not been operating. In other words, the accuseds may not have been able to plead or be found guilty of a charge less than murder, despite, as our analysis will demonstrate, the evident impact their cognitive impairments had on their levels of moral culpability.

The in-depth analysis of these three cases, coupled with a discussion of the 12 other cases involving an accused with a history of mental illness or cognitive impairment, allows us to test the vocal claims of the dominant abolitionist reformers, who argued that defensive homicide provided an avenue for morally culpable, violent men to ‘get away with murder’, and that the offence itself was not operating as intended. We have also selected the cases that involved these specific forms of mental impairment because these conditions have not been considered in the major studies examining defensive homicide in the context of male-on-male lethal violence to date. Our discussion thus provides new and critical insights into the operation of defensive homicide in the context of mental illness and impairment.

Drawing from the selected case studies, this article sheds light on the complexities surrounding mental impairment and seeks to generate discussion around the absence of mental impairment as a key focal point in the abolition debate. By arguing that these cases did in fact cohere with the intended scope of s 9AD of the Crimes Act 1958 (Vic) — which sought to take into account that people kill in a range of different circumstances and that their culpability may be affected by a range of factors — we challenge the dominant, populist voices that strongly informed the abolition of defensive homicide.

There are multiple complexities and nuances in cases involving a fatality. Our article provides a mere snapshot of some of these by drawing from the personal histories of men convicted of defensive homicide. We argue that these backgrounds are far more complex than the images and focal points used by the media and populist voices to advocate abolition. Additionally, we seek to demonstrate how defensive homicide did not absolve the legal responsibility of those found guilty (either by plea or trial), nor did it result in accused persons not being punished and facing periods of imprisonment for their actions. Instead, we argue that defensive homicide offered an opportunity for consideration to (rightly) be given to the accused’s level of mental illness and impairment, and its impact on their moral culpability, in a way that would not have been possible without the operation of this offence.

While we believe it is entirely reasonable that homicide is met with legal punishment and social denunciation, we argue that the abolition of defensive homicide was largely premature and insufficient attention was given to the fact that its abolition, combined with the restrictive operation of the CMIA, would result in situations where individuals with mental conditions insufficient to form the basis of the mental impairment defence would have no defence or appropriate alternative homicide offence available to them in Victorian law.

In light of recent research indicating that 38 per cent of Australian prison entrants have been told they have a mental health disorder and 42 per cent of Victoria’s prison population have been identified with a psychiatric risk indicating mental health concerns, we contend that there is a demonstrable need for Victoria to have an appropriate range of legal responses to deal with the nuances and complexities of lethal violence, particularly where the offender suffers from a mental illness or impairment.

Our article commences with a discussion of the link between mental illness and lethal violence and an overview of the current laws pertaining to mental impairment in Victoria. After considering the findings of recent reviews into mental impairment defences in Australia, we present a background to the abolition of defensive homicide, with a particular focus on the dominant, populist–abolitionist reformers’ voices that were prioritised in the debate and fuelled the offence’s rapid demise. We then present an in-depth analysis of our three selected case studies to highlight how the offence was working effectively in practice, capturing the very unique and complex circumstances inherent to homicide. The article concludes by showcasing some of the effects of the decision to abolish defensive homicide for accused persons suffering from a mental illness and impairment and summarising why we advocate for a greater range of legal responses to cover the nuance and complexities of lethal violence, including consideration of several of the recommendations arising from the Victorian Law Reform Commission’s (‘VLRC’) review of Victoria’s mental impairment laws.

Industry Assistance

The Productivity Commission has released its Trade and Assistance Review 2014-15, the latest of the annual quantitative estimates of Australian Government assistance to industry.

The Commission states that

This year's review also explores how the size and nature of the assistance estimates might be influenced by recent developments such as the Agricultural Competitiveness White Paper, the Defence Industry Statement and submarine procurement, programs to increase renewable energy and reduce carbon emissions, regional business investment programs and efforts targeted at business innovation.

The Commission's Key Points are

For 2014-15, estimated assistance to industry (provided by the Australian Government) was $15.1 billion in gross terms.

It comprised $7.8 billion in tariff assistance, $4.2 billion in budgetary outlays and $3.1 billion in tax concessions. While tariff assistance is inherently distortionary, not all budgetary outlays create distortions that result in a misallocation of resources.

After deducting the cost penalty of tariffs on imported inputs ($7.5 billion, two-thirds incurred by services industries), net assistance to industry was $7.6 billion. The incidence of assistance varies widely between sectors.

Manufacturing received an estimated $7.0 billion in net assistance (largely due to tariff protection), Primary production received an estimated $1.3 billion (mostly through budgetary assistance), and Mining recorded a small but positive assistance ($0.3 billion).

The measured industry assistance arrangements imposed a net cost of $1.6 billion on services industries (as the tariff cost penalty on inputs outweighed budgetary assistance).

Of the eight categories of measured budgetary industry assistance the two largest are:

• R and D support (generally available to all industries and specific to rural industry), which represented around 40 per cent ($3.1 billion), the majority of which relates to the R and D Tax Incentive (around $2.2 billion) 

• Industry specific assistance, which consists of a range of grants and concessions such as for the automotive, film, finance and ethanol industries, and represented 18 per cent ($1.3 billion) of measured assistance.

The measured estimates are conservative as they exclude significant assistance that is difficult to quantify. This includes: favourable finance (loans, debt, equity, guarantees); local purchasing preferences for defence equipment; and regulatory restrictions on competition. The estimates also exclude state and territory government support to industry.

A number of recent developments will likely add to the level of assistance in coming years. Measures providing assistance have been proposed in the Agricultural Competitiveness White Paper, the Defence Industry Statement, programs to increase renewable energy and reduce carbon emissions, and programs targeted at innovation, collaboration and commercialisation.

Regional industry investment grant programs continue to be introduced as a response to the closure of iconic local employers. These schemes deliver high subsidy rates to recipient businesses, but the outcomes of these programs are uncertain. A review is needed to determine what design best assists displaced workers and regions to adjust.

Australia continues to negotiate on a wide array of trade agreements and in a multitude of membership forums. Apart from the conclusion of negotiations on the Trans-Pacific Partnership Agreement, and the China Australia Free Trade Agreement coming into force in December 2015, developments include:

• final arbitration in Australia's favour of the investor-state dispute in relation to tobacco plain packaging 

• a tightening of screening thresholds for foreign investment proposals in Australian agribusiness and pastoral land purchase 

• an increase in anti-dumping protection.

In discussing Australia's plain packaging regime, the report comments

Australia’s tobacco plain packaging legislation came into full effect on 1 December 2012. The legislation prohibits logos, brand imagery, colours and promotional text other than brand and product names in a standard colour, position, font style and size appearing on tobacco packaging. Tobacco plain packaging forms part of a range of tobacco control measures to reduce the rate of smoking in Australia.

Dispute against the Australian legislation by the tobacco companies or countries acting in their interests has been three pronged:

• under the WTO Dispute Resolution rules

• by Investor State Dispute arbitration conducted under the United Nations Commission on International Trade Law Arbitration Rules

• via Constitutional challenge.

The Constitutional challenges were unsuccessful in 2012. The ISDS arbitration dismissed the case in 2015 (after a substantial cost to taxpayers, some of which may be recouped). [One estimate of the legal costs for the first procedural hearing stage (as at June 2015) was $50 million (Martin 2015). Further costs have not been made public. In the 2016 17 Budget Paper No.1 international litigation related to plain packaging is listed.] The WTO disputes remain open.

Challenges to Australia’s tobacco plain packaging legislation

WTO Disputes

The WTO Dispute Settlement Body (DSB) has established dispute settlement panels at the requests of Ukraine (28 September 2012), Honduras (25 September 2013), Indonesia (26 March 2014), the Dominican Republic (25 April 2014), and Cuba (25 April 2014). In addition to the complainant countries, 41 other countries have requested (and been granted permission) to join the disputes as third parties. All five complainants claim that Australia’s tobacco plain packaging laws appear to be inconsistent with certain provisions of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the Technical Barriers to Trade (TBT) Agreement, and the General Agreement on Tariffs and Trade (GATT 1994).

On 5 May 2014, the WTO Director General composed the panels in each of the five tobacco disputes. The same panellists have been appointed to hear the five disputes.

Investor State arbitration Dispute

Pursuant to the Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments, which entered into force in 1993, Philip Morris Asia Limited served Australia with a Notice of Claim (followed by a Notice of Arbitration) in 2011 over tobacco plain packaging requirements. This was the first investor state dispute brought against Australia.

The arbitration was conducted under the United Nations Commission on International Trade Law Arbitration Rules 2010. On 18 December 2015 the tribunal issued a unanimous decision agreeing with Australia's position that the tribunal has no jurisdiction to hear Philip Morris Asia's claim. On 17 May 2016 the tribunal published the decision with the parties' confidential information redacted. The tribunal found that Philip Morris Asia's claim was an abuse of process (abuse of rights), because Philip Morris Asia acquired an Australian subsidiary, Philip Morris (Australia) Limited, for the purpose of initiating the dispute under the Hong Kong Agreement. This concluded the arbitration in Australia's favour, subject to finalisation of the costs claim.

Constitutional challenges

Two challenges to the tobacco plain packaging legislation were heard by the High Court of Australia 17–19 April 2012: British American Tobacco Australasia Limited and Ors v. Commonwealth of Australia and J T International SA v. Commonwealth of Australia.

On 15 August 2012, the High Court handed down orders for these matters, and found that the Tobacco Plain Packaging Act 2011 is not contrary to s 51(xxxi) of the Constitution. On 5 October 2012 the Court handed down its reasons for the decision. By a 6:1 majority (Heydon J in dissent) the Court held that there had been no acquisition of property that would have required provision of 'just terms' under s51(xxxi) of the Constitution.

Violence and Disclosure

The South Australian government has released a discussion paper on domestic violence, including a proposal - based on the UK Clare's Law - that would allow people to use an application to the police to gain access to the criminal record of a potential partner, with applicants having to establish their the bona fides.

Eight topics in the paper are

• Domestic Violence Disclosure Scheme - Who should be able to find out about someone’s history of domestic violence offending? How should this scheme work? 
• Expiry Dates on Intervention Orders - Should intervention orders (previously restraining orders) be able to expire? 
• Comprehensive Collection of Data -  What is the best way to ensure that accurate data relating to domestic violence is collected? 
• Allowing Video Evidence -  Should police video recordings from incidents be admissible as evidence at trial? 
• Confidentiality - Should changes be made to improve the confidentiality in court of medical and counselling records? 
• Drug and Alcohol Treatment -  Should the courts send domestic violence offenders to be assessed for drug and alcohol problems? 
• Housing and Homelessness Service Priorities - How can we best assist victims of domestic violence who are facing homelessness? 
• Fostering Supportive Environments - How can we assist domestic violence victims to seek support in the workplace and other environments?

In relation to the disclosure scheme the paper indicates

There is no system in South Australia that allows you to find out about a person’s history of domestic violence offending. The South Australian Government has committed to considering the development and implementation of a domestic violence disclosure scheme (DVDS) to make this possible. A DVDS would aim to reduce the incidents of domestic violence and strengthen the ability of police and agencies to provide protection and support to victims of abuse.

Under a DVDS, you can ask for information about a partner’s history as a domestic violence offender. A series of checks are then performed and a decision made about whether you are at risk and should be told about the person’s history.

Who Should be Allowed to Apply?

This is an important question open for community discussion. For example, should the scheme only be available to people in a current relationship, or should you be able to find out about a previous partner? We are also asking you to consider whether disclosure applications should be extended to include third parties, such as family, friends and colleagues.

The Application Process

A DVDS in South Australia must have a simple and accessible application process. In similar schemes in the UK and NSW, applications are made through the police. The police then determine whether a disclosure should be made based on whether it may prevent a future crime.

Disclosure of Information

The question of what information should be disclosed requires careful consideration. For example, should information be limited to prior convictions for relevant criminal offences, or should the threshold be wider to include intervention orders or allegations?

Once a decision is made to disclose information, a clear process should be put in place for how the disclosure should occur. Under the NSW scheme, a disclosure is made in person at a police station or other agreed place to the primary person (i.e. the person in the relationship). Support services are also present when a disclosure is made.

To ensure the person’s safety, the ‘subject’ of the disclosure is not advised that an application or disclosure has been made about them.

Community and expert views are sought on a number of key issues. We are asking you to consider the parameters and processes that should apply to a DVDS in South Australia. This includes who should be able to apply for a disclosure, how someone should apply for a disclosure, whether age limits should be enforced and the factors that should be considered when determining whether a disclosure should be made.

The paper notes

The impact of the UK DVDS on the prevalence of domestic violence is still unknown as neither of the two assessments completed by the Home Office have considered the impact the scheme may have had on domestic abuse victims.

The NSW Scheme

On 6 March 2015, the NSW Government announced it would pilot a DVDS similar to the scheme introduced in the UK and released a discussion paper seeking comments on the proposed scheme. After wide public consultation, which included a roundtable and targeted workshops with government and non-government organisations, the Government announced, on 14 October 2015, that the DVDS would be piloted in four NSW Police Force Local Area Commands (Sutherland, St George, Oxley and Shoalhaven). The NSW DVDS was rolled out on 13 April 2016 and will be evaluated over two years. NSW Police will receive and review all applications made by a person who is concerned about their partner, or a concerned third party, to find out if their partner has a history of domestic violence.

Under the NSW DVDS, a third party includes someone who has some form of contact with the primary person, e.g. family, friends or legal guardians. It also includes professionals working with a member of the family. On receipt of an application, NSW Police will check whether a relevant conviction exists that leads to a disclosure being made to the primary person. A conviction will be disclosed where the person who is the subject of the application has a relevant offence in their criminal history. Relevant offences include personal violence offences committed in a domestic relationship and certain specific personal violence offences committed outside of a domestic relationship. Breaches of apprehended violence orders will also be disclosed as they constitute a criminal offence.

Offences and orders that will not be disclosed under the NSW scheme include spent convictions and apprehended domestic violence orders.

A disclosure will be made in person at a police station or other agreed safe place, and the person receiving the information will be required to sign an undertaking that they will not misuse any information disclosed. Also present at the time of disclosure will be an expert from a domestic and family violence support service to provide support and help plan for the person’s safety. Support services will be present regardless of whether a disclosure is made or where a primary person is advised that no relevant conviction exists. This ensures that the primary person will have immediate access to the necessary support that is required when making a decision about their safety. The NSW Government also announced that it was investing $2.3 million to assist non-government organisations provide specialist services in the four local command areas ...

Disclosure of Information

In the UK, police have a common law power to disclose information where it is necessary to prevent a crime. However, any disclosures must be made in accordance with existing statutory obligations, such as the Data Protection Act 1998 and the Human Rights Act 1998. The UK Home Office DVDS Guidance 60 states that information sharing must: • be lawful, for example, the prevention, detection, investigation and punishment of a serious crime and the prevention of abuse or serious harm will usually be sufficiently strong public interests to override the duty of confidence; • comply with the eight Data Protection Principles set out in the Data Protection Act 1998; • be necessary; and • be proportionate.

The question of what information should be disclosed requires careful consideration. In the UK, Annex A of the DVDS Guidance sets out a non-exhaustive list of offences that may be disclosed. The only limitation is in relation to spent convictions which cannot be disclosed.

Disclosure under the NSW DVDS is limited to relevant offences which include personal violence offences committed in a domestic relationship, stalking, intimidation, breaches of Apprehended Domestic Violence Orders and specific personal violence offences, such as sexual offences, child abuse offences or murder, where they were committed outside of a domestic relationship. Offences that cannot be disclosed under the NSW scheme include offences from jurisdictions outside NSW, offences where no conviction has been recorded, spent convictions, juvenile convictions, Apprehended Domestic Violence Orders and any other offence not listed in the relevant offences list.

SAPOL is of the view that any initiative which increases awareness and safety for victims, particularly in a preventative capacity, is worthy of favourable consideration. However, SAPOL has some reservations relative to the NSW pilot model and its restricted criteria for information release. The NSW DVDS will not disclose convictions for offences which have occurred outside of NSW, offences where no conviction is recorded, spent convictions, juvenile convictions, or the presence of an order (unless there are breaches).

In the view of SAPOL, this approach leaves significant gaps in information sharing as offences which have not resulted in a conviction are not identified in this process. Similarly, other contextual factors which may place a victim at higher risk (for example, misuse of alcohol or other drugs and mental health issues) would not be revealed.

SAPOL has noted that if the disclosure parameters were broadened, it would increase victim safety but would come at a resourcing cost (noting that the model is resource intensive for police). SAPOL also noted that it is unknown, at this early stage of the NSW pilot, how many applications may be received. In addition to the work generated by the application process which includes a risk assessment process, it is highly likely that disclosures will be made to in a face-to-face meeting. This in turn would generate further work in both supporting victims and investigating offences.

The disclosure of information by Government agencies in South Australia is governed by the Information Privacy Principles and the Information Sharing Guidelines. An agency may disclose personal information about a person to a third party in a number of circumstances including where the disclosure is required or authorised by, or under, law and if the person disclosing the information believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious threat to the life, health or safety of a person.

The question of what information should be able to be disclosed requires careful consideration. Disclosure of all offences may not be necessary or proportionate and could undermine an individual’s basic right to privacy. A similar issue arises in relation to the disclosure of intervention orders. An intervention order is a civil order that does not require a finding of guilt by a court that the alleged perpetrator has committed a criminal offence. Indeed, an intervention order can be made by mutual consent without any admissions by the defendant as to the matters in issue. A breach of an intervention order, on the other hand, is a criminal offence.

Careful attention should therefore be given to the question of whether the disclosure of information should be limited to prior convictions for relevant criminal offences (for example, domestic violence offences, sexual offences and some offences against the person that involve violence) or whether the threshold should be wider? Should it include intervention orders and/or charges or allegations relating to relevant offences?

In the UK, a two-stage process is adopted in the DVDS. The first step is to determine whether there is a need for the disclosure in order to prevent abuse or serious harm. The second step requires consideration of the legal principles discussed above.

In discussing confidentiality the paper indicates

In South Australia, counselling and medical records can be called upon as evidence during legal proceedings. This applies to domestic violence counselling.

There are two circumstances in which communications are protected under the law from being disclosed in legal proceedings:

• communications that occur between a lawyer and their client 

• communications that occur during counselling relating to sexual assault. This protection cannot be waived, even if both the victim and the counsellor agree to it being disclosed.

Should changes be made to improve the confidentiality in court of medical and counselling records?

It comments

[T]he SDC recommended the Attorney-General amend the Evidence Act 1929 (SA) to improve confidentiality of client records for victims of domestic and family violence.

The issue of confidentiality of client case records concerning victims of domestic violence was also raised in evidence before the SDC. The example given was a defamation action taken in the small claims court, by an alleged perpetrator, against a domestic violence service who held sensitive and confidential case notes containing information provided by the victim. The agency settled the action at significant cost on the understanding that, if the action was defended, information contained in the case notes would be required to be released to the plaintiff (the perpetrator) in the discovery process. Under the common law, the only relationship in which communications are protected from disclosure in court is that between a lawyer and a client. There is no general client privilege that protects counselling records from disclosure. The confidentiality of counselling records is therefore limited, as access to these records can be requested in relation to legal proceedings under subpoena. Agencies could argue that disclosure of the notes would be prejudicial to the client if revealed in court or that it would otherwise be contrary to the interests of justice to admit the document in evidence. It would then be up to the court to determine whether or not the records should be admitted into evidence.

What we have currently in South Australia is a protection for sexual assault counselling communications. Part 7, Division 9 of the Evidence Act 1929 (SA) provides that “a communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity”. This protection cannot be waived, even if the counsellor or the victim agree to its disclosure. Section 67F further provides that evidence of a protected communication is entirely inadmissible in committal proceedings, is not liable to discovery or any other form of pre-trial disclosure and cannot be admitted in other legal proceedings unless the court gives permission and the admission of the evidence is consistent with any limitations or restrictions fixed by the court.

There is no general privilege currently in South Australia for medical records or other records produced where there is a duty of confidentiality, or an expectation of confidentiality by the victim. Whether or not some form of client privilege should apply, either generally, or limited to domestic violence counselling records, therefore requires careful consideration.

Community and expert views are sought on whether amendments to the Evidence Act 1929 (SA) are warranted to improve confidentiality for client records for domestic violence victims.

Australian Universities Funding

The LH Martin Institute has released a report [PDF] by Frank Larkins and Ian Marshman on Domestic Student Load and Financing Trends at Individual Australian Universities: A Comparative Analysis of the Period 2004 to 2009 with 2009 to 2014.  The report raises questions about winners, losers and the quality of tertiary education as a result of uncapped places.

The authors comment

A review of the responses of individual universities to the uncapping of domestic government supported undergraduate places has highlighted a wide diversity of responses with some unexpected outcomes. The study follows a previous one that examined trends on a system-wide basis highlighting major domestic student growth between 2009 and 2014, coupled with an increased dependency on government funding. The key findings pertaining to individual universities are discussed in section 4. 

Some findings highlighting very different responses by universities are:

• The standout universities in terms of domestic student growth in the five years to 2014 are, Deakin, ACU, RMIT, Curtin, Swinburne, Western Sydney and Macquarie each with growth of more than 6,000 EFTSL. No university had this level of growth in the previous five years from 2004. 

• Marginal growth of less than 1,000 EFTSL was recorded by Southern Cross, Murdoch, and Victoria U, while Federation, Charles Darwin and ANU reported growth of less than 1,500 EFTSL. 

• The seven universities that have made the largest gains in domestic student revenues since 2009 are Deakin ($166.5m), ACU ($162.6m), RMIT ($141.3m), Curtin ($134.5m), Queensland ($133.4m), Swinburne ($128.1m) and Western Sydney ($120.7m). All of these universities, except Queensland, experienced a reduction in the rate of growth in overseas student revenue during the same period compared with the previous five years 2004 to 2009. 

• Surprisingly, eleven universities increased their domestic T&L funding by more than $100m between 2009 and 2014 compared with only two between 2004 and 2009. 

• While all universities increased their government teaching and learning funding from 2009 to 2014, only one-third of the universities increased their domestic fee-paying income in this five year period. This contrasts with the previous five years when two-thirds of the universities increased their domestic fee-paying revenues. 

• The universities that have maintained their focus on overseas student revenue growth have been mainly four of the Go8 universities. As a result, in the five years to 2014 the universities with the highest combined domestic and overseas teaching and learning revenue growth were Melbourne at $242m, Queensland at $226m, Sydney at $211m and UNSW at $195m. The changes in domestic T&L revenue growth and the changes in overseas student fee revenue growth for the two five year periods under consideration are given in Tables B2 and B5 respectively for all 38 universities examined.

The authors comment

.... it seems that as a result of introduction of the demand-driven system, Australian universities have generally opted for growth in domestic places supported either by Commonwealth loans and/or grants. A small number of universities has continued to pursue growth in international students. The universities which seem to have taken most advantage from the change in funding for domestic places are generally a select number of relatively diverse teaching-intensive universities which have shown a readiness to respond to the change in policy. Queensland is the only G8 university in this group. 

Our findings have led to the identification in section 5 of five key policy areas that warrant consideration in any review of national higher education policy. The issues identified are presented here in the form of questions. 

• Given the rate of change that has occurred within some institutions, are universities adequately accountable for demonstrating that their quest for growth is in the national interest and has not been at the expense of quality? 

• Is it in the public interest that teaching and learning funding continue to be allocated exclusively on the basis of student load rather than at least partially on the basis of completions or other output measures, whether at award or unit level? 

• What policy measures might government contemplate to strengthen strategic capability across the sector given the variability of university outcomes identified in the present work? 

• In an uncapped domestic enrolment system there appears to be a very limited market for domestic fee-paying courses. What alternative options might enable the higher education system to become more fiscally sustainable over the longer term? 

• Is the current escalating level of government funding for teaching and learning, coupled with a declining government investment in research training and research, the right approach to contribute long term economic and social benefits for Australia?

Hosking v Runting

In a view from 2014 'Balancing the Right to Privacy and Freedom of Expression: Re-evaluating Hosking v Runting in the Light of Recent Developments in English Privacy Law' by Abby Ward examines

the potential impact of recent English privacy jurisprudence on the New Zealand tort of privacy. The paper contrasts the New Zealand Court of Appeal’s aversion towards an over-expansive privacy right expressed in Hosking v Runting with an increasing readiness to override freedom of expression in favour of privacy interests in the United Kingdom. Three central conflicts in the courts’ reasoning are addressed in detail, namely privacy’s relationship with public places, individuals with public profiles and mediums of publication. While developments in English privacy law highlight reasoning flaws and theoretical shortcomings in Hosking, the increasing influence European jurisprudence on English law may nevertheless justify some divergence in the two jurisdictions’ balancing of privacy and freedom of expression. 

Crimping Political Communication in the ACT administration?

The ACT Legislative Assembly Standing Committee on Justice and Community Safety (Legislative Scrutiny) has offered cogent criticisms [PDF] of the Public Sector Management Amendment Bill 2016 (ACT).

The Bill serves to crimp criticism by public servants of the Territory administration and is of interest to privacy, constitutional and employment law scholars (for example those noting Banerji v Bowles).

The Committee highlights executive overreach, commenting

This is a Bill to amend the Public Sector Management Act 1994 so that it will cover all ACT Public Sector entities except Territory owned corporations; formally establish the Senior executive Service; contain heads of power for the employment of ACT public servants; vest all employment powers at the Head of Service level; and apply the ACTPS values to the whole of the public sector.

Do any provisions of the Bill amount to an undue trespass on personal rights and liberties?— paragraph (3)(a) of the terms of reference

Report under section 38 of the Human Rights Act 2004

THE RIGHT TO FREEDOM OF EXPRESSION (HRA SECTION 16) AND THE COMMONWEALTH CONSTITUTION’S FREEDOM OF POLITICAL COMMUNICATION AND THE PROPOSED PROVISION THAT A PUBLIC SERVANT MUST NOT ENGAGE IN CONDUCT THAT CAUSES DAMAGE TO THE REPUTATION OF THE SERVICE OR THE EXECUTIVE 

Clause 6 of the Bill provides for a substituted division 2.1 of the Act, and is entitled “Public sector standards”. Proposed section 9, which is headed “Public sector conduct”, gives rise to a number of human rights issues. This is acknowledged and dealt with in a cursory way in the Explanatory Statement (at page 7), and the matter requires deeper analysis.

Proposed paragraph 9(2)(a) of the Public Sector Management Act 1994 provides that a public servant must not engage in conduct that causes damage to the reputation of the service or the Executive. What follows is the entirety of the Explanatory Statement comment on this proposal:

Section 9(2)(a) deliberately includes actions by a public servant that are undertaken outside of official duties. Emergent case law on the impact of out of hours conduct on the employment relationship demonstrates increasing societal and institutional acceptance of this connection. This is particularly true of employee participation in social media fora where there is significant potential for reputational damage to the employer. The need to retain public confidence in the public service outweighs any impingement on an individual’s right to privacy, freedom of expression or participation in democratic processes.

The conduct proscribed by paragraph 9(2)(a) will embrace speech, and paragraph 9(2)(a) thereby engages and derogates from HRA subsection 16(2) (the right to freedom of expression), and section 17 (“the right, and ... the opportunity, to (a) take part in the conduct of public affairs, directly or through freely chosen representatives”). This is acknowledged by the Explanatory Statement. There is no reference to HRA section 28 as a basis for these derogations, nor any attempt in substance to make out a justification according to the framework stated in section 28. 

There is also a question whether paragraph 9(2)(a) would be invalid as a derogation of the right to freedom of political communication found by the High Court to arise by implication from the provisions in the Commonwealth Constitution. For the purposes of this report, the High Court’s doctrine may be taken as a framework for also addressing the question whether paragraph 9(2)(a) is a justifiable derogation of HRA sections 16 and 17.

The central question posed by section 28 is whether the limit to speech is “reasonable” “in a free and democratic society”. The High Court test is not substantially (or perhaps at all) different. 

The significance of free speech

The judgment of Heydon J on Monis v The Queen is a common way of stating judicial attitude on the value of free speech. His Honour said:

[151] The common law right of free speech is a fundamental right or freedom falling within the principle of legality. That must be so if there is any shadow of truth in Cardozo J's claim that freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom." It must be so if Lord Steyn's account of the importance of freedom of expression is convincing. He said: "Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market'. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country". ... 

[152] Of course, Cardozo J was dealing with the First and Fourteenth Amendments to the United States Constitution. ... 

Constitutional rights of those kinds are different from a common law right capable of modification by statute. But the considerations underlying a constitutional right of free speech, where it exists, are equally strong indications that the right of free speech at common law is sufficiently important to attract the principle of legality.  

 The Commonwealth Constitution’s freedom of political communication  

In Monis v The Queen Hayne J said that “where a law has the legal or practical effect of burdening political communication, the boundaries of the freedom are marked by two conditions”. The first is “the object of the impugned law ‘is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ... which the Constitution prescribes’”. This object is often spoken of as the “legitimate end”. The second is that the law is reasonably appropriate and adapted to serving the legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. 

The character of this freedom was described by McHugh J in Levy v Victoria: "The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution”.  

The width of the language on paragraph 9(2)(a)  

Whether or not paragraph 9(2)(a) derogates from this freedom will turn on its language and, in particular on the breadth of the conduct it proscribes. Conduct proscribed by paragraph 9(2)(a) will embrace statements made by a public servant in any context and at any time or place that cause damage to the reputation of the service or the Executive. The “service” is the ACT Public Service, and the “Executive” is the Australian Capital Territory Executive, being the Chief Minister and such other Ministers as are appointed by the Chief Minister. See the Australian Capital Territory (Self-Government) Act 1989 sections 36 and 39. 

The only limitation on the communication that is caught by the law is that it has the effect of causing damage to the reputation of the service or the Executive. There is no limitation in terms of whether the information in question was or was not otherwise publicly available, or whether it ought to be or could be made so. Nor is it concerned with whether, in a given instance, any public interest consideration could reasonably justify a prohibition on disclosure. Nor is it necessary to consider (i) whether the information upon which the communication was derived by the official in confidence; or (ii) whether the communication was based on anything learnt by reason of the person being a public servant. 

The potential effect on free speech by a public servant of the rule in paragraph 9(2)(a) should also be understood by reference to other provisions in proposed section 9 concerning misconduct. Clause 104 of the Bill would amend the Dictionary to the Act by prescribing that “misconduct, by a public servant, means failure to comply with section 9”, and this is also reflected in subsection 9(3), which provides that “[f]or a misconduct procedure, failing to act in a way that is consistent with subsection (1) or (2) may be misconduct”. The effect is that a communication by a public servant that is proscribed by paragraph 9(2)(a) may be a basis for a misconduct procedure set out in an industrial instrument or prescribed by regulation. The provision of subsection 9(4) makes it more likely that this will happen. It provides that a public servant (a discloser) must tell the head of service about any misconduct by a public servant or a public sector member of which the discloser becomes aware. 

The result of these provisions may be that public servants will be very wary of making any communication that could be plausibly construed as one that causes damage to the service or to the Executive. This result would directly affect their participation in discussion of matters that relate to the operation of responsible government, and thereby affect the effectiveness of the participation of others. 

(The matters just discussed also bear directly on the question of whether paragraph 9(2)(a) is a justifiable derogation of the right of a public servant to exercise their right under HRA paragraph 17(a) to take part in the conduct of public affairs, directly or through freely chosen representatives.)  

Will a prohibition on a communication effectively burden political communication? 

In Monis v The Queen Hayne J said that “[t]he expression ‘effectively burden’ means nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications”. 

It is possible to conceive of conduct by a public servant that would damage reputation in the relevant sense without that conduct being in the nature of a criticism or reflection on the performance of the public service or the Executive. However, in very many cases this will be so and, in particular, in those cases where the communication will be a basis for a misconduct charge. The words of Finn J (in a similar context) in Bennett are appropriate: “[i]ts heartland is concerned with information about political and governmental matters and about the executive organs of the Territory for which ministers are in some measure responsible in our system of government”. 

It is important to take note of the significance of criticism or reflection by a public servant on the performance of the public service or the Executive. Public servants are better placed than others to appreciate that there is room for criticism, and there is a public interest in their views being known to the citizenry. As Finn J said in Bennett v President, Human Rights and Equal Opportunities Commission, “[w]ere it otherwise one could institutionalise a form of public debate about matters of government and public administration that has been described as a ‘dialogue of the deaf’ between those who do not know and those who will not or cannot tell: cf Kernaghan and Langford, The Responsible Public Servant, 89 (1990)”. 

 The point is that in this context the position of public servants cannot be equated with that of other employees. This point may be underlined by reference to observations of McHugh J in Stephens v West Australian Newspapers Ltd:  

In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally.

It is arguable that paragraph 9(2)(a) effectively burdens political communication in an extensive way. The words of Finn J in Bennett are again appropriate: “It is an impediment to the community being informed as to whether "the democratic machinery is in good working order’: Zines, The High Court and the Constitution, 380 (4th ed, 1997)”. This conclusion affects the question of validity, for the High Court accepts that “[i]t is trite to say that the more extensive the burden on political communication the more difficult it will be to justify the impugned law”.  

Is the object of the impugned law compatible with the maintenance of the system of representative and responsible government?  

The Explanatory Statement (at page 7) specifies the object of paragraph 9(2)(a) to be “[t]he need to retain public confidence in the public service”. It is assumed that this condition for compatibility of paragraph 9(2)(a) with the constitutional freedom is satisfied.  

Are the means chosen to achieve that end reasonably appropriate and adapted to achieving it in a manner compatible with the system of representative and responsible government?  

It might be argued that the reach of paragraph 9(2)(a) goes much further than is necessary to achieve the end of retaining public confidence in the public service and of the Executive. 

The question is whether the end sought to be achieved by paragraph 9(2)(a) is achievable only by a prohibition of every communication by a public servant that causes damage to reputation in the relevant ways. It might be argued that public confidence is better maintained by the exposure by public servants (in contexts apart from acting as such) of matters that would in the short-term cause damage. Such exposure might ensure that the matters that cause damage are rectified, thereby enhancing public confidence. Moreover, if the law prescribes that the operations of the public service and of the Executive cannot be criticised by those who are well-placed to make that criticism, public confidence in these institutions might be eroded. 

Using the language of subsection 28(2)(e), there may be less restrictive means to achieve the object desired. The prohibition in paragraph 9(2)(a) ends might be formulated less restrictively. Particular ends, such as the protection of privacy, or of Cabinet secrecy, or security concerns, would be easier to justify. Rather then simply damage to ‘reputation’, the question is whether the damage might be framed more specifically, such as in terms of the efficiency or functioning of the service and the Executive. 

There is an argument that the relevant communication must be shown to be contrary to the public interest. In Commonwealth v John Fairfax and Sons Ltd, Mason CJ said, with reference to the common law doctrine that affords a remedy for a breach of confidence:  

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. 

Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.

This comment by Finn J in Bennett v President, Human Rights and Equal Opportunities Commission might be taken to sum up the argument that paragraph 9(2)(a) is invalid as derogating from the Commonwealth Constitution’s freedom of political communication: “The dimensions of the control it imposes impedes quite unreasonably the possible flow of information to the community - information which, without possibly prejudicing the interests of the Commonwealth, could only serve to enlarge the public's knowledge and understanding of the operation, practices and policies of executive government.”