Linkages

The 64 page 'Feasibility Study of Linking Migrant Settlement Records to Personal Income Tax Data' [PDF] by Laura Walsh and Anne Weckert of the Australian Bureau of Statistics indicates that

 In 2013, the Australian Bureau of Statistics was provided with access to the Australian Taxation Office’s Personal Income Tax unit record data to assess the feasibility of linking records from the Australian Government’s Settlement Database to the Personal Income Tax unit record data. The study concluded that linking was feasible, provided name and address information could be used as linking variables, and that the linked dataset could provide useful information that no other data source could provide. This paper provides background to the feasibility study, a brief description of the linking strategy and process, and an assessment of the quality of the linking. The potential benefits of future linking projects are also discussed.

The authors comment that -

The results of this study are based, in part, on tax data supplied by the ATO to the ABS under the Taxation Administration Act 1953, which requires that such data is only used for the purpose of administering the Census and Statistics Act 1905. Any discussion of data limitations or weaknesses is in the context of using the data for statistical integration purposes, and is not related to the ability of the data to support the ATO's core operational requirements.

The confidentiality of data is protected by legislation. The Census and Statistics Act 1905 and the Privacy Act 1988 require that all information collected by the ABS remain confidential. Both these Acts ensure that data submitted to, or collected by, the ABS are not provided to anyone where those data can be used to identify an individual. All ABS staff, including temporary employees, are legally bound never to release personal information to any individual or organisation outside the ABS. In addition, comprehensive security arrangements are implemented in ABS computer systems.

They report

In 2013, the Australian Bureau of Statistics (ABS) conducted a study to examine and assess the feasibility of linking unit record data from the Australian Taxation Office (ATO) Personal Income Tax records with the Australian Government’s Settlement Database (SDB).

This study was known as the Migrant Personal Income Tax (PIT) Data Integration (DI) project.

The Migrant PIT DI project was conducted with the aim of assessing the viability and quality of linking the SDB with the ATO PIT data.

The primary benefits of the project are:

1. Increasing the potential for use of administrative data sources such as the SDB and PIT data by the ABS for the purpose of statistical output;

2. Creating an enriched dataset for statistical and research purposes;

3. Possible new statistics on recent migrants able to be produced at a relatively low cost and without additional burden to providers (to inform policy debate, decision making and evaluation); and

4. Advancing the capability of the ABS as an Integrating Authority through demonstration of the feasibility and statistical value of linking of administrative data.

The first phase of the Migrant PIT DI project is the Migrant PIT Linkage Feasibility Study. The study linked the SDB to the PIT records using variables such as name, date of birth and address. Figures from the linked file were compared with other data sources with comparable data items published by the ABS to assess the quality of the links and the linkage rate. Relevant legislation and guidelines, including the Privacy Act 1988 and the High Level Principles for Data Integration Involving Commonwealth Data for Statistical and Research Purposes were adhered to, protecting the privacy of individuals on both datasets.

Around 70% (68.8% in 2009/10 and 69.0% in 2010/11) of records on the SDB considered to be ‘in-scope’ for the feasibility study linked to a record on the PIT file. Of the unlinked SDB records, it is likely that a high proportion of them are simply non-tax lodgers, and therefore a match to a PIT record is not expected. If it were possible to quantify this and exclude these records from the linkage process, hypothetically the linkage rate would have been much closer to 100%. The project demonstrated that linking the SDB to PIT is feasible and can provide useful information on the economic contribution of individuals who have migrated to Australia. The feasibility study also demonstrated that data linkage using a limited range of variables is possible.

The next step for this project is to conduct a statistical study and, following consultation with relevant stakeholders, it is hoped that this second phase of the project can be conducted in 2014.

This paper provides background to the Migrant PIT Linkage Feasibility Study, a brief description of the linking strategy and process, a discussion of the quality of the linking of the SDB records to the PIT records, provides recommendations for improvements to the linking, and explores potential for an analysis dataset.

Wearables

'Google Glass While Driving' (William & Mary Law School Research Paper No. 09-280) by Adam M. Gershowitz comments

 Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “Read up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. 

This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using” Glass are practically unenforceable because drivers could easily claim the devices were turned off or that they were being used for lawful functions – such as phone calls or GPS directions – that are allowed under texting while driving statutes. The lack of a clear prohibition on Google Glass while driving is troublesome. Social science evidence demonstrates that using hands-free devices while driving creates “cognitive tunnel vision” that drastically reduces drivers’ mental focus on the road. 

After analyzing the nation’s distracted driving laws and reviewing the social science evidence, this article proposes a statutory framework for effectively banning Google Glass while driving.

Proceeds of Crime

In following up the preceding item about 'the Corby Raid' I've noted the May 2014 Senate Legal and Constitutional Affairs References Committee report Current investigative processes and powers of the Australian Federal Police in relation to non-criminal matters [PDF].

The report comments that

Several submitters and witnesses commented on the AFP's processes and use of investigative powers in the recent case involving Seven West. Concerns were raised in relation to several issues, including: the AFP's decision to proceed with a search warrant; errors in the warrant and associated documents; and the conduct of officers during the execution of the warrant. 

Decision to proceed with a search warrant 

The decisions made on 17 February 2014 by the AFP to proceed with seeking and then executing search warrants against Seven West were questioned by submitters and witnesses. AFP representatives gave an explanation at the committee's public hearing as to why the decision was taken to proceed with executing the search warrant: 

[We] needed to ascertain as best we could whether or not we had the ability to obtain a literary proceeds order and we had to do that as soon as possible, because previous dealings in relation to literary proceeds matter with this family—nothing to do with Channel 7 whatsoever, though—had seen money go offshore and outside the jurisdiction. So we wanted to move quickly in case a deal had been done, and we tried to establish whether or not a deal had been done. I know Channel 7 has said that no deal has been done. I must take that on face value to say that no deal has been done, but at this particular point in time when we executed the warrants and had served production orders we were not aware that that was the case. 

Timing of obtaining the search warrant 

The timing of the AFP's decision to seek a search warrant was queried, given that the warrant was sought early in the afternoon of 17 February, several hours before the 5.00pm agreed deadline for Seven West to provide additional documents to the AFP. Representatives from the AFP acknowledged that it would have been  preferable to seek out a magistrate after the 5.00pm deadline had lapsed, rather than obtaining a warrant earlier in the day. However, the AFP defended obtaining the warrant on the basis that it was a pre-emptive measure to ensure that it was available, if necessary, for execution the following day:

[The warrant was obtained] with a view to executing it if necessary on the following day. It was purely a logistics exercise. It is not one that I would like to repeat. An instruction has been provided to our officers that in my view it is less than optimal that you apply for a warrant prior to the expiration of the time given to comply with the production order. But at the end of the day nothing changed. The circumstances had not changed. We still were not in receipt of the materials that we believe existed, and indeed we located during the search warrant. 

Acting AFP Commissioner Andrew Colvin APM OAM emphasised that obtaining a search warrant did not mean that the AFP was obliged to proceed with executing the warrant, and argued that the AFP would not have had to execute the warrant if Seven West had provided the material the AFP expected by the 5.00pm deadline on 17 February. 

The AFP noted that the timing of seeking the warrant was also influenced by the availability of a magistrate: It can be quite challenging, particularly in New South Wales, to locate magistrates after hours who can issue warrants. So, it has become practice on some occasions to try to identify magistrates who are available and fit within their schedule. On this occasion, inquiries were made and we were advised that the last possible time available that day for any magistrate was 3.30pm, and if we missed that time frame it would not be available to us until the following day, but they could not confirm a time. 

Further, the AFP informed the committee that the decision to go ahead with execution of the warrant (on 18 February) was made at 5.49pm on 17 February, after the 5.00pm deadline for the production of information. 

Content of the search warrant, affidavit and section 246 order 

The contents of the search warrant and associated orders obtained by the AFP on 17 February 2014 was canvassed thoroughly in submissions and at the committee's public hearing, with errors in those documents and the omission of other relevant information the primary concerns raised. 

Errors contained in the warrants and associated orders 

The AFP acknowledged as early as 21 February 2014 that the section 246 order obtained on 17 February contained an error, being the statement that Seven  West's legal representative was 'reasonably suspected of having committed the offence stated in the relevant warrant', when this was not the case. At that time the AFP stated that '[i]t is a regrettable error, but it is an innocent word-processing error'. The AFP also stated that it did not consider the error to invalidate the order or warrant its revocation. 

In addition to the section 246 order, the search warrant itself listed various parties as 'suspects, entities or other matters that are the subject of the investigation', when in fact those parties were not suspects. In the Federal Court judgment in relation to this matter, her honour Justice Jagot found that both the section 246 orders and search warrants issued were materially affected by legal error and ruled that the orders and warrants be quashed as invalid and of no effect. 

The AFP stated that the errors in the search warrant and associated orders occurred as a result of mistakes made using standard form documents during the drafting process. In relation to the section 246 assistance order, Deputy Commissioner Michael Phelan APM informed the committee:

[T]he people in our office in Sydney had not done a section 246 order before. It is a very similar order to that contained within the Crimes Act section 3LA...They asked Canberra for advice, and that advice was given, but the advice that was provided was wrong. It was off one that had been provided similar to section 3LA of the Crimes Act, which had those provisions in it...[T]he correct document in format is actually in the DPP search warrant manual, which with all those manuals is on our system. I stand to be corrected, but I think section 246 orders are in that manual in the correct format and were in the correct format prior to that day. Had the correct procedures been followed—in other words, officers downloading from the internal system, which they are guided to under all of our guidelines et cetera, doing that one and the supervisors checking it, then arguably the fatal flaw of those words would not have occurred. It would not have changed the substance of anything else; just those [incorrect] words would not have been in there.

Deputy Commissioner Phelan explained that a similar failure to follow established process led to the errors associated with the search warrant:

The other [mistake] is the words that were contained within the affidavit or the search warrant. I believe that it referred to 'entities' as being 'suspects'. That is also a pro forma that sits on our website—on our investigators' toolkit. The correct warrant and affidavit format is in there as well. It contains drafting instructions in terms of filling out bits and pieces: 'If they are suspects, write "the suspects". If they are entities, write "the entities".' And so on. The drafting instructions were not removed from this particular  search warrant. Therefore...that was also fatal in terms of the warrant and the affidavit. The correct documents and the correct pro-formas exist now and existed at the time, as well. They were just not used. When things were vetted they were not picked up [by] supervisors, et cetera. So in terms of practice and procedures, they are there. We have to do some work about making sure that they are followed.

The AFP confirmed that it was reviewing its internal processes to ensure such documents are used correctly in the future:

We have taken a fair bit of remedial action over the last six weeks, as you would probably imagine. We will still take some action, going forward, to ensure that supervisors make sure that these properly drafted documents are used properly. These documents have been drafted by the DPP, our own lawyers and everybody else and are correct; we continually update them as the law changes, whether the parliament alters the law or whether it is judge-made law. We are continually updating these and they are the one source of truth for our members when they go ahead and do it. If the documents are wrong that is a fatal mistake for all of us. But, essentially, those documents are correct—and were correct at the time.

Explaining the legislative framework for literary proceeds matters 

Her honour Justice Jagot held that the AFP did not make it clear to the issuing magistrates that neither the deriving of literary proceeds nor the payment or facilitation of a payment which might give rise to a literary proceeds order is, in itself, an offence. Justice Jagot stated that there 'was no cogent explanation' of the literary proceeds scheme in the material made available by the AFP to the issuing magistrates, and held that it was likely that the magistrates were led into error by the AFP and assumed that the POC Act created an offence relating to the derivation of literary proceeds.3 

Seven West argued in its submission to the inquiry that it is critical that magistrates are fully informed about the operation of Commonwealth legislation with which they may not be closely familiar when considering applications by the AFP: 

It cannot be assumed that a Magistrate would be aware of the way in which the [POC Act] operates and especially not the fact that there is no criminal offence involved or alleged when dealing with the payment of literary proceeds. It is especially necessary in those circumstances that any application for search warrants or section 246 orders involves the full and frank disclosure of all material information to the Magistrate, to the same standard required on any ex parte application for civil relief.

At the committee's public hearing, it was suggested that AFP officers could be directed to take a copy of relevant provisions in Commonwealth legislation when making an application to a magistrate, to ensure that magistrates are fully informed. Acting AFP Commissioner Andrew Colvin commented: 

As a matter of course, there is no guideline that I am aware of that says that our investigators should take the [relevant Act]. Having said that, I know from my own experience that it is commonplace that we would and it is often commonplace that the magistrate would have it as well. The affidavit does go to what needs to be in the magistrate's mind before the warrant, the order or whatever it might be is issued. What they must satisfy themselves of is contained in the affidavit, but of course, if the magistrate wants broader context, then that would come from the [A]ct itself.

The AFP stated further in a supplementary submission:

The suggestion has also been made through the inquiry that applications for warrants or production orders made under [the POC Act] should be accompanied by relevant extracts of the legislation, or that copies of the Act should be made available to the magistrate as necessary and appropriate (particularly where applications are made outside chambers). The AFP would be happy to consider integrating this suggestion into its practices and procedures for literary proceeds investigations.

Scope of the production order and search warrant 

Another point of contention related to the scope of the production order and the subsequent search warrants obtained by the AFP, which were drafted in different terms. During the execution of the warrant at Channel Seven's Pyrmont office, the AFP was provided with two documents that had not been obtained under the original production order:

There were two documents that were handed to police. One identified a number of draft agreements containing payments to a total of $550,000, including consideration of accommodation and security. There was an unsigned exclusive agreement by email dated 7 February 2014 to Mercedes Corby as an agent for Schapelle Corby for an interview in consideration for $550,000 with an attachment detailing accommodation, security and driver services paid by Channel 7. 

One of the key points of dispute between Seven West and the AFP was whether these 'draft agreement' documents produced under the terms of the search warrant also fell within the terms of the initial production order issued to Seven West, and hence should have been handed over to the AFP on 14 February as part of the initial order for production of documents. 

The production order required production of eight different categories of documents, including any electronic and written records relating to payment arrangements or contractual arrangements entered into in relation to Ms Corby, and electronic and hardcopy communications between Seven West and Ms Corby or any relevant third parties. The search warrant was drafted in different terms and called for originals or copies of evidential material including: contracts, agreements, payments, bonuses, financial records, emails, hand written notes, and communications, including electronic communications, in relation to the Corby matter. 

AFP representatives agreed that the search warrant was drafted in broader terms than the production order. It argued, however, that the production order was still drafted widely enough to capture the two 'draft agreement' documents produced under the search warrant: 

The AFP believes that the production order covered certain unsigned draft agreements or similar and that the two documents obtained from Seven West in under the search warrant fell within the scope of the original production order...It is our view that relevant drafts of contracts which were actually finally entered into, or drafts of contracts not ever entered into but communicated between Seven West and Ms Corby, would be captured by the terms of the production order, and that the terms of the production order were sufficiently clear to enable Seven West Media to understand the nature of the documents being sought. 

In particular, Deputy Commissioner Michael Phelan highlighted two conditions in the production order that the AFP believed would have captured these documents, namely:

• electronic and hard copy records of any other benefit from Seven West Media or other associated companies in relation to [Ms] Corby; and 

• electronic and hard copy instructions and/or arrangements relating to [Ms Corby] and/or any other person providing direction for any form of payment or benefit derived from the commercial exploitation of her criminal notoriety to a third party. 

Conversely, Seven West argued that the draft agreements did not fall within the scope of the initial production order:

It is clear that the draft documents which were later supplied to the AFP [during the execution of search warrants] on 18 February 2014, did not fall within the terms of the Production Order as those documents did not relate to or evidence any “payment arrangements”, “electronic and written transfers”, “contractual arrangements”, “trust account payments”, “records of any other benefit”, “electronic and hard copy communications”, or “electronic and hard copy instructions and/or arrangements relating to Corby” as specified in the Production Order. The draft documents were never signed or otherwise entered into and therefore did not constitute evidence of any payment or benefit or arrangement. At best, those draft documents comprised a proposal or theoretical deal which had not at the time of the raids, and has not since, been confirmed or agreed. 

Seven West continued:

The ongoing assertions by the AFP that Seven had not complied with the Production Order are of serious concern to Seven. They amount to an allegation that Seven has committed a criminal offence in failing to comply with the Production Order. This is a very serious matter that can have serious implications for Seven in relation to renewal of its broadcast licences and in other areas of its business dealings.

The Rule of Law Institute also commented on this issue in a response to questions taken on notice. RoLIA stated that 'the debate over this issue shows that whether a production order has been complied with by a respondent should be left to a neutral umpire'. It suggested that its proposed amendment in relation to the granting of search warrants (see paragraph 3.19 above) would require that a magistrate who receives an application for a search warrant must first determine whether or not a production order has been complied with. 

Other options for obtaining information that could have been pursued  

Seven West also suggested that the AFP could have sought undertakings from Seven West and its related entities to ensure that any payments made in relation to the Corby matter did not leave Australia: 

It is common practice prior to commencement of other civil litigation for one party to request undertakings from another not to engage in particular conduct. In this instance, as the Federal Police indicated that the specific matter of concern was that money may have been paid and moved out of the jurisdiction, the AFP could have requested a written undertaking from Seven not to make any payments to Schapelle Corby or any person acting on her behalf until such time as they had been able to ascertain whether any agreement existed between Seven and Ms Corby.

The AFP representatives emphasised that during the investigation the AFP utilised the powers currently available to it under the POC Act, and that the ability to obtain undertakings during literary proceeds investigations could be a useful addition to those powers. The AFP made clear in a supplementary submission that it would be supportive of an enforceable undertakings mechanism being introduced in the POC Act only if such a mechanism did not replace the existing investigative powers under the POC Act, but rather gave the AFP another potential course of action for pursuing investigations.  

The AFP noted that a range of factors would need to be considered in framing any enforceable undertakings provisions in relation to literary proceeds matters, including that undertakings: would have to be entered into voluntarily by both parties; would need to override any contractual obligation that the media / publishing organisation may have or intend to have with the individual concerned; and that there would need to be appropriate penalties or action that could be taken in response to breaches of undertakings.  

Conduct of officers during the execution of the search warrant  

Seven West argued that the AFP officers responsible for executing the search warrants on 18 February acted in a heavy-handed manner, including by having firearms visible during the execution of the warrants:

The warrants were carried out in an extremely aggressive manner, using over 30 armed police officers from the Serious and Organised Crime division. The raids caused distress to Seven West Media employees and appear in many aspects to have been carried out not in accordance with the AFP Code of Conduct.  

It was noted that Seven West had lodged a formal professional standards complaint with the AFP over the conduct of its officers relating to the application for and execution of the search warrants on Seven West and its solicitors. Acting AFP Commissioner Andrew Colvin told the committee:

[A]s soon as these matters came to light, [AFP Commissioner Tony Negus] referred it to our professional standards area, who are looking at that, including claims that firearms were visible and that people were overly aggressive. We will take that matter and we are taking that matter very seriously.

Cost of the investigation  

A further issue raised was whether the execution of the warrants on Seven West and associated entities was a proper use of AFP resources within the Serious and Organised Crime Division. Seven West argued that the actions of the AFP were 'completely disproportionate' to the stated objectives of the search warrants, and that the deployment of over 30 AFP officers on this matter amounted to a 'clear misuse of Commonwealth resources'. 

In relation to the number of officers involved in this investigation, Acting Commissioner Colvin stated:

[O]ur officers make judgements, about what manpower they require to execute [a] search warrant. Search warrants, by their nature, require us to search and require us to do certain things. We will use, and we should always use, the minimum force required to get the job done. Obviously, that is a point of conjecture in this matter. 

In response to a question on notice about the cost of the investigation, the AFP informed the committee that, as at 24 February 2014, 'the cost of the time of officers involved in the raid execution of search warrants and associated investigations, including work on [the] production order before the warrant' was estimated at $88,143.

The Committee's recommendations are -

R1 The committee recommends that the Australian Federal Police develops and provides mandatory education and training tools to its investigators in relation to the nature of investigations in support of civil action under the Proceeds of Crime Act 2002 (Cth).  

R2 The committee recommends that, when making applications for search warrants under section 225 of the Proceeds of Crime Act 2002 (Cth), the Australian Federal Police presents all relevant information to the issuing magistrate, including full details of any other information gathering activities undertaken by the Australian Federal Police in relation to the matter and whether such activities are ongoing. 

R3 The committee recommends that the Australian Federal Police implements protocols to ensure that applications made to a magistrate for the granting of search warrants or other associated orders must be accompanied by a copy of the legislative provisions to which the application relates. 

R4 The committee recommends that the Commonwealth government investigates options for distinguishing literary proceeds matters from other matters under the Proceeds of Crime Act 2002 (Cth) with particular consideration given to:

• retaining literary proceeds matters within the POC Act, and amending the Act to clearly distinguish between literary proceeds matters and other proceeds of crime matters; or 

• removing literary proceeds matters from the POC Act altogether and creating standalone legislation to deal with literary proceeds matters. 

R5 The committee recommends that the Commonwealth government develops and introduces amendments to the Proceeds of Crime Act 2002 (Cth) in order to ensure that, wherever possible during investigations under the Act, information is sought via a production order before a search warrant is granted. 

R6 The committee recommends that the Commonwealth government investigates options for introducing enforceable undertakings powers as an option available to law enforcement agencies during literary proceeds investigations. 

R7 The committee recommends that the Commonwealth government develops and introduces legally enforceable protocols governing the procurement of information or records from media organisations during investigations by the Australian Federal Police. 

In developing these protocols, the Commonwealth government should consult with relevant stakeholders and have regard to relevant examples from other jurisdictions, including the United States' Government's Policy regarding obtaining information from, or records of, members of the news media; and regarding questioning, arresting, or charging members of the news media. 

R8 The committee recommends that the Australian Federal Police and relevant media and publishing stakeholders develop guidelines to be observed during the execution of search warrants on the premises of media organisations in circumstances where a claim of journalists' privilege is made. 

R9 The committee recommends that the Proceeds of Crime Act 2002 (Cth) be amended to ensure that information subject to journalists' privilege cannot be obtained by the Australian Federal Police during proceeds of crime investigations unless the criteria contained in subsection 126H(2) of the Evidence Act 1995 (Cth) are met.

Corby

The Guardian reports that the Australian Federal Police, belatedly responding to one of their keystone cops moments, has apologised for the inept search of Seven West's premises.

The Australian federal police apologises unreservedly to Seven West Media Ltd, its related companies, and its officers and employees for the unnecessary reputational damage to Seven, its related companies, their employers and their officers, arising from the execution of search warrants in relation to the AFP’s investigation into alleged payments to Schapelle Corby. 

Those warrants were subsequently quashed by the federal court. 

For the record neither Seven, nor its employees, officers or lawyers, were ever suspected of a criminal offence, nor were they subject to any criminal investigation in relation to the Corby matter, which was solely a literary proceeds matter seeking to recover any payments made to a convicted person.

Earlier this year the AFP stated -

The Australian Federal Police (AFP) would like to respond to serious allegations made this evening (February 19) by Channel Seven regarding a number of search warrants executed yesterday in relation to an ongoing Proceeds of Crime matter.

All AFP search warrants are authorised by a magistrate or an appropriate member of the judiciary following sufficient supporting documentation or material being presented.

Claims that the appropriate authorisation was not obtained in relation to yesterday’s warrants are strongly refuted by the AFP. These warrants were legally authorised, and during their execution, AFP members behaved in full accordance with their responsibilities and legal obligations.

As per standard practice, however, Channel Seven’s allegations were immediately referred to the AFP Professional Standards Unit for investigation.

Additionally, the matter has been referred to the Australian Commission for Law Enforcement Integrity (ACLEI) to ensure complete independence and transparency.

The Proceeds of Crime investigation remains ongoing and as such, it would not be appropriate to comment further.

Assisted Reproduction and anonymity

Withdrawal of anonymity for gamete donors?

The 2nd Reading Speech for the Assisted Reproductive Treatment Further Amendment Bill 2013 (Vic) addresses questions regarding access to information regarding 'genetic heritage' (considered in NSW last year here and elsewhere here,  here and here).

The Legislative Council Hansard of 7 August (p 2449) reads -

Victoria was the first jurisdiction in Australia to recognise and address the needs of donor-conceived persons to access information regarding their genetic heritage. The Infertility (Medical Procedures) Act 1984 and the Infertility Treatment Act 1995 required information relating to treatment procedures using donor gametes to be recorded on a central register.

The current Assisted Reproductive Treatment Act 2008 maintains two registers from which information about persons participating in, or born from, donor treatment procedures can be obtained:

• a central register, which contains both identifying and non-identifying information about donor-conception stakeholders since 1988; and

• a voluntary register, which records personal information voluntarily lodged by the donor, donor-conceived person, or a recipient parent.

However, there are currently three separate regimes regulating access by donor-conceived people to information about their donors. The changes in the legislative regime over time reflect society's changing attitudes to donor conception and the rights of donor-conceived people to have information about their genetic origins.

Currently, people who were born from gametes donated after 1998 are entitled under the act to obtain identifying information about their donors when they reach adulthood. People conceived from gametes donated between 1988 and 1997 can access identifying information about their donors with the donor's consent. However, people conceived from gametes donated prior to 1988 have no legislated right to obtain identifying information. Prior to 1988 donors' anonymity was a requirement of the consent to donation process.

The 2012 parliamentary committee inquiry into access by donor-conceived people to information about donors was asked to consider the possible legal, practical and other issues that may arise if donor-conceived people who do not currently have access to information about their donors were provided with that information. In its final report the committee recommended the introduction of legislation to allow all donor-conceived people to obtain identifying information about their donors regardless of when the gametes they were conceived from were donated or whether the donor had consented.

The government considered the committee's report, carried out a comprehensive literature review and a detailed human rights analysis of the interests of all stakeholders, including donor-conceived individuals, recipient parents, donors and their families, and also considered the findings of VARTA's consultation with pre-1998 donors.

The government concluded that the committee recommendation to allow all donor-conceived people access to identifying information about their donors should be supported in principle, but would be more appropriately implemented with the consent of the donor. The government tabled its final response to the inquiry in August this year. The bill gives effect to the government's response, balancing the rights of all donor conception stakeholders whilst establishing a legal right of access to information for those conceived from gametes donated prior to 1988 where none existed before.

The mechanism for disclosure of identifying information provided in this bill is predicated on the consent of the donor in the same way as this occurs for persons conceived from gametes donated between 1 July 1988 and 31 December 1997.

This effectively extends the model that currently applies to persons born from gametes donated between 1988 and 1997 to donor-conceived people born from donations made prior to 1988, to enable them to access information about their donor where it is available. By providing disclosure of identifying information with consent, the model represents an effective implementation of the key committee recommendation to provide retrospective access, whilst balancing the rights of various donor conception stakeholders.

Access to information for persons born from donations made prior to 1988

The bill will allow for persons born from gametes donated prior to 1 July 1988 to be able to request and receive identifying information about their donor, where it is available and where their donor consents to its release, through the central register.

Upon receipt of an application, the registrar of BDM will be able to disclose identifying information if the applicant was conceived using gametes donated prior to 31 December 1997 and the donor has given consent to the disclosure. The disclosure of non-identifying information will apply upon receipt of an application by a person under section 56 of the act irrespective of whether consent is obtained.

The requirement of the act for an applicant to have received counselling prior to the disclosure of identifying information, or to be offered counselling in the case of non-identifying information, will also apply to persons seeking information relating to donor treatment procedures involving the use of gametes donated prior to 1 July 1988.

Access to information about siblings

Currently the voluntary register is the only formal avenue for a donor-conceived person and recipient parents to seek information about genetically related donor siblings. If a person conceived from the same donor's gametes (a half-sibling) is registered on the voluntary register, the donor-conceived person can obtain non-identifying and/or identifying information from the voluntary register, in accordance with the half-sibling's wishes. However, for this to be effective, the half-sibling must be aware that they are donor conceived, must be aware of the existence of the voluntary register and must be registered on it.

The committee heard that a significant issue for some donor-conceived people is the concern that they may unknowingly form a romantic relationship with a half-sibling.

The committee also heard that the provision of non-identifying information about siblings, such as birth month, year and sex, could provide donor-conceived people with a means to assure themselves that a potential partner is not a sibling.

This bill will allow for a donor-conceived person or a parent of a donor-conceived person to request information about that person's genetic siblings from the central register. In response to applications about genetically related siblings, the number of genetically related siblings in total and per family unit, their sex, month and year of birth may now be disclosed.

The committee also noted that although clinics currently provide donors who provided gametes before 1988 with basic non-identifying information about their donor offspring, donors do not possess this right under legislation.

All donors who consented to the use of their gametes after 1 July 1988 currently have the right to obtain from the central register non-identifying information about their donor offspring, regardless of the age of the offspring. The only non-identifying information that is provided is the donor offspring's sex and year of birth. The bill will provide for all donors, regardless of when they made donations, to be able to request non-identifying information about their donor offspring.

Exchange of information about significant hereditary or genetic conditions

Donors may become aware, some time after making their donation, that they have a medical condition that may be passed on to offspring. In these situations it may be critical that the offspring be advised that they may have, or may develop, a serious medical condition. There is currently no mechanism in the act for information about heritable genetic diseases or genetic abnormalities to be passed on to people who may be affected by this information. A similar issue may arise for donor-conceived people who wish to pass on medical information about a hereditary condition to donor-conceived siblings.

The committee recommended that a mechanism be introduced to allow a donor to provide medical information to a donor-conceived person where there is evidence of hereditary or genetic disease or risks to the health of the donor-conceived person, and that the same principles apply to donor-conceived people providing medical information to donor-conceived siblings. This bill will introduce a provision that enables health information about genetic or hereditary conditions, diseases or illness to be disclosed and exchanged between donors and their offspring and between donor-conceived siblings.

It is noted that registered assisted reproductive treatment (ART) providers already have established processes and experience and are best placed to disclose medical information when necessary. ART providers have procedures for notifying past and present patients of significant hereditary diseases and illnesses where the disclosure is necessary to lessen or prevent the threat to the person's health, life or safety, or to inform a person about the existence of a medical condition that may affect them or their offspring.

It is intended for this ART provider practice to apply to present patients, past patients and other affected donor-conception stakeholders (including pre-1988 donors and pre-1988 donor-conceived people). ART providers can provide affected individuals with access to specialist genetic counsellors and have experience in sensitively managing these disclosures, including in circumstances where an individual is unaware of their donor-conceived status.

The bill will provide for registered ART providers to manage the disclosure of medical information similarly to what is provided for in the NSW Assisted Reproductive Technology Act 2007, and to be able to request information about persons conceived from donated gametes from the central register to enable them to perform this function.

Securing access to and preserving donor treatment records

Other than through the voluntary register, persons conceived from donations made prior to 1988 currently have no legal mechanism to access information about their donors. Access to information about their donors is at the discretion of, and dependent on the resources of, individual clinics and doctors who carried out the treatment. The disparate location and management of records can be problematic for facilitating access.

It is believed that some pre-1988 records may be inaccessible, incomplete, inaccurate, or no longer exist. Where records are held privately, they are currently not protected under any legislation and are legally able to be destroyed at any time.

By securing records and facilitating information exchange or access to records between relevant record keepers and BDM, the bill will enable consistent and centralised access to information held in records to be established for stakeholders seeking information. In the bill, this will be achieved by:

• inviting individual doctors or other persons who may have records to provide these to the registrar of BDM so that the relevant information can be added to the central register; 

• requiring ART providers that hold pre-1988 records to compile a register of prescribed information from records held by them and to provide the register to BDM so that this information may be added to the central register; 

• allowing BDM to access and disclose information from the Prince Henry's Hospital records held at the Public Records Office of Victoria as required in order to respond to requests for information.

In the act, the destruction of records is an offence; this bill will extend this provision to records relating to donor treatment procedures involving the use of gametes donated prior to 1 July 1988. In addition, the bill will stipulate that all health records relating to donor treatment procedures must be retained for a period of 99 years. This will ensure these records are preserved in order to facilitate future access to them for the purposes of verifying or obtaining additional information held within them.

Where records are available, ART providers and BDM will create retrospective entries to be placed on the central register. It is intended that these entries reflect the entries required to be kept under the regulations, where that information has been recorded and is able to be ascertained.

Counselling, support and donor-linking services

The Committee heard that the commencement of the operation of the act in 2010 brought about changes in the services available to donor-conception stakeholders, suggesting that, in the minds of donor-conception stakeholders, these were markedly reduced and fragmented, and difficult and confusing to access. Currently, BDM manages the central and voluntary registers; counselling is referred to Family Information and Networks Discovery (FIND); and VARTA is responsible for public education.

The committee noted a number of apparent shortcomings with the current service arrangements for donor-conception stakeholders. The government's response resolves these shortcomings, addressing the current information exchange constraints, and simplifying the service system using the existing infrastructure and expertise of BDM and VARTA. The bill will also provide for increased counselling services and donor-linking.

The current limitations in the act relating to the exchange of information will be addressed in this bill, as these limitations have contributed to the criticisms that the system is disjointed and difficult to navigate. The bill will allow BDM to exchange information about applicants to the central or voluntary register with the prescribed counsellor in order to facilitate effective compulsory counselling sessions.

The existing requirement for a person seeking identifying information from the central register to undergo compulsory counselling will be retained. VARTA will assume responsibility from FIND for the provision of the counselling of applicants seeking information. VARTA will offer support and counselling services not just to applicants for information but also to the broader group of donor-conception stakeholders and other related parties, such as partners of applicants or subjects of an application or recipient parents.

Under the new arrangements set out in the bill, the subject of an application for identifying information whose consent is required may seek counselling on his or her own initiative, or BDM may refer the subject for counselling to assist the person in making a decision as to whether or not to consent. This will ensure that subjects of applications for identifying information are supported to understand the motivations and intentions of the person making the application, and can make informed decisions regarding consent.

In addition, VARTA will provide a voluntary donor-linking service, acting as an intermediary in the exchange of information and contact between donor-conception stakeholders. Encompassed in this service will be a letterbox facility which will enable correspondence between parties who wish to participate in the exchange of information confidentially and progressively.

ARTA's functions generally

Lastly, under the bill, VARTA will continue to provide education and resources about assisted reproductive treatment and fertility more generally and continue to provide support to parents in telling their children about the circumstances of their conception. The bill will also provide VARTA with responsibility to review and decide applications relating to advertising for egg donors under the Human Tissue Act 1982. Other applications under the Human Tissue Act 1982 will remain with the Minister for Health (and the Department of Health, as per present arrangements).

Google

 'The Google Street View Wi-Fi Scandal and Its Repercussions for Privacy Regulation' by Mark Burdon and Alissa McKillop in (2013) 39(3) Monash University Law Review comments that

Between 2008 and 2010, Google secretly collected Wi-Fi header data from residential and business Wi-Fi access points throughout the world. The collection also included details of personal communications commonly known as ‘payload data’. A number of regulatory investigations ensued from this global privacy scandal. Some privacy authorities, including the Australian Privacy Commissioner, sanctioned Google for the collection of payload data. However, the header data collection was largely overlooked. Those authorities that investigated the collection of Wi-Fi header data concluded that Google breached relevant privacy laws. As a result, some jurisdictions now classify Wi-Fi header data as personal information whereas others do not. The collection of Wi-Fi header data gives rise to complex policy and privacy considerations as this data is an important asset of new Location-Based Services. Consequently, it is important to revisit the Google scandal to investigate whether Google’s collection of Australian Wi-Fi header data breached the Privacy Act 1988 (Cth). Our analysis reveals that Google is likely to have breached the Act, which raises important questions about the regulatory actions conducted in Australia and the efficacy of the Act’s application in the face of continuing and rapid technological development.

Property

'Land Rights as Human Rights: The Case for a Specific Right to Land' by Jeremie Gilbert in (2013) 10(18) SUR International Journal on Human Rights comments

Land rights have received some attention as an issue concerning property rights and have been considered a specifically important right for indigenous peoples and women, but a right to land is absent from all international human rights instruments. This article reviews how land rights have been approached from five different angles under international human rights law: as an issue of property right, as a specifically important right for indigenous peoples; as an ingredient for gender equality; and as a rallying slogan against unequal access to food and housing. By examining these different approaches, the article proposes to identify the place of land rights within the international human rights instruments and jurisprudence as well as to examine why they have not been – and whether they should be - included in such documents as a stand-alone and specific right to land.

'Immunity from Seizure and Suit in Australia: The Protection of Cultural Objects on Loan Act 2013' by Craig Forrest in (2014) 21(2) International Journal of Cultural Property 1 notes that

Australia has, like many other states over the past few years, introduced a statute that provides immunity from seizure for cultural objects on loan from abroad and immunity from suit for certain parties. This article explores the historical context that lead to the adoption of this statute and comprehensively explores the legislative regime, highlighting its peculiarities.