Lists

The SMH reports that NSW public, private and Catholic schools "will be asked to swap information about the background and past behaviour of students who transfer between schools".

A protocol under the auspices of state Education Minister Adrian Piccoli reflects "duty of care all schools have to their students and staff" and is intended to "help principals to better meet the safety, health, welfare and well-being of all their students and families".

"It will equip them to avoid compromising student and staff safety and well-being while offering the incoming student a better chance of a more successful transition into the new school," Mr Piccoli said.

"Information may be forwarded or requested, better preparing schools which may be presented with a student who has been expelled, had their enrolment terminated or asked to leave another school."

Private schools do not have any requirement to report expulsion rates to the Department of Education but they do have to provide their policies to the Board of Studies, Teaching and Educational Standards.

Under the protocol, information shared between schools could include education records, counselling records, and family details, as well as any history of physical violence or verbal abuse, including harassment using text messages or Facebook stalking.

Catholic Education Commission NSW director Brian Croke said the new protocols would set out the obligations and legal basis for sharing a range of personal information on students with other schools.

"The fundamental purpose of information sharing is to assist each school to fulfil its duty of care to all enrolled students," Dr Croke said. "School principals have a responsibility to share relevant information that assists in the effective and pastorally supported movement of a student between schools or sectors." 

White Collar Regulation and another TGA Review

'Magnifying Deterrence by Prosecuting Professionals' by Scott A. Schumacher in (2014) 89 Indiana Law Journal 511 examines

the recent series of criminal prosecutions against tax professionals and offshore bankers. These criminal cases, brought against the largest Swiss bank (UBS), the oldest Swiss bank (Wegelin), one of the largest accounting firms in the world (KPMG), as well as numerous lawyers and accountants, represent a dramatic shift for the U.S. Department of Justice. After decades of tolerating abusive tax shelters and tax haven banks, the government changed its policy. However, rather than indicting the individuals and corporations who invested in tax shelters or hid money in offshore accounts, the Justice Department indicted the lawyers, accountants, and bankers who advised them. This Article will analyze those prosecutions from a theoretical, historical, and practical perspective, and will examine the impact the new prosecution policy will have on the legal professional, the tax system, and international relations.

Schumacher comments

The past few years have seen a dramatic shift in the prosecution policies of the U.S. Department of Justice in tax cases. Until recently, the U.S. government rarely prosecuted cases that involved the gray areas of the law, and arguable, if not plausible, interpretations of the Tax Code were rarely the subject of prosecutions.

Indictments of attorneys and accountants were even rarer, and these prosecutions usually accompanied the indictment of the taxpayers themselves. As a result, the government generally resorted to bringing civil tax cases when going after investors in abusive tax shelters, and the professionals who marketed these scams were rarely brought into even these civil proceedings. Likewise, the use of offshore accounts by U.S. taxpayers was tolerated by prosecutors for decades. Indeed, the tax treaty with Switzerland acknowledged Swiss bank secrecy in tax prosecutions. This indulgence of tax shelters and tax havens led, at least in part, to their proliferation.

However, beginning with the tax shelter prosecutions in 2005, the government's policy of restraint has undergone a significant change. Rather than challenging abusive transactions civilly or prosecuting the taxpayers, the government began focusing its criminal resources on the professionals who advised and enabled their clients to evade or avoid taxes. Thus, instead of pursuing taxpayers who claimed hundreds of millions of dollars in phony losses, the government decided to go after the accounting firms, law firms, and professionals who advised these taxpayers. And these were not just any firms. The government proceeded criminally against professionals from some of the leading law and accounting firms, including KPMG, Ernst & Young, Brown & Wood, and Jenkens & Gilchrist. These cases garnered mixed results for the government, with the government getting some notable victories, but also some high-profile losses. In the process, however, the government effectively shut down the tax shelter industry and fundamentally changed tax practice.

The government persisted in this policy of pursuing professionals when it decided to go after Swiss banks and bankers, instead of the tens of thousands of U.S. depositors who hid money in undeclared offshore accounts. As with the tax shelter cases, the government targeted some of the biggest players, entering into a Deferred Prosecution Agreement with UBS, Switzerland's largest bank, and indicting some of its bankers. In 2012, the government indicted Switzerland's oldest bank, Wegelin Bank, and three of its partners, even though the bank had no U.S. office. As a result of the indictment, the bank essentially ceased to exist as an independent entity within a month. Wegelin pleaded guilty to tax crimes in January 2013, and formally ceased operation. While the prosecution of banks and bankers was ongoing, the government allowed most U.S. taxpayers to resolve their cases civilly via a series of offshore voluntary disclosure initiatives. These combined actions, along with the actions of other countries, dramatically changed offshore banking and the use and perception of tax havens.

In this Article, I will examine the government's decision to pursue the professionals, instead of the clients the professionals represented, and the impact this revised prosecution policy has had on the tax system. In so doing, I will examine these prosecutions in their historical context, analyze whether they represent sound policy, and recommend whether changes in the policy should be made.

In Part I of the Article, I will examine the history of criminal prosecutions in both the tax shelter and tax haven areas. This history demonstrates that very few people, whether taxpayer or professional, were charged criminally for investing in tax shelters or hiding money in tax havens. This tolerance by prosecutors led to their continued use and expansion. Part II will then discuss the recent criminal prosecutions brought against tax lawyers, accountants, and bankers for their role in assisting their clients and customers in evading taxes. These cases will provide the necessary backdrop for what appears to be a fundamental shift in prosecution policy.

Part III of the Article will analyze the theory underlying criminal prosecutions. In this Part, I will show that federal prosecutors enjoy wide discretion as to whom to charge. Given this discretion, it is essential that front-line prosecutors are guided by clear prosecution policies and that those policies be consistently followed. These policies, while not crystalline, require prosecutors to determine the culpability of the person charged, including the person's relative culpability in relation to other actors not charged; the deterrent effect (particularly general deterrence) that would result from the prosecution; the retributive effect of the prosecution, in particular whether the victim of the crime has been compensated and their injuries have been addressed; and whether the prosecution will serve to protect the integrity of the civil tax system.

Finally, in Part IV, I will examine whether the recent prosecutions are consistent with the criminal theory and the government's prosecution goals discussed in Part III. I will argue that both the tax shelter and tax haven cases were generally consistent with criminal theory and the goals of prosecution policies and have for the most part been very successful. The most successful, indeed ingenious, aspect of the policy, whether intended or not, comes from the leveraging of general deterrence. By prosecuting professionals, rather than the taxpayers, the government has magnified the deterrent effect of the prosecutions. In so doing, the revised prosecution policies have fundamentally changed tax compliance.

That being said, the new prosecution policy is not beyond criticism. The tax professionals who marketed the tax shelters created and sold these shelters to their clients as a prepackaged transaction at a handsome profit. Thus, without the professionals, no.taxpayer would have invested in these shelters, and they have at least a colorable claim of relying on their professional advisor. By contrast, the tax haven banks are no more culpable (and arguably less culpable) than many of the U.S. taxpayers who hid money in those accounts, and who escaped prosecution. More significantly, while the tax haven prosecutions address the losses suffered by U.S. taxpayers, little has been done for the true victims of tax haven abuse-the developing world. I will provide a brief review of the devastating impact of tax havens on the developing world. Thus, while prosecuting bankers may make sense from a pragmatic standpoint, more must be done to protect the integrity of the tax system and to ensure that the injuries of the true victims of this conduct are redressed.

The national Government is meanwhile conducting an "independent review of medicines and medical devices regulation", examining the Therapeutic Goods Administration’s "regulatory framework and processes" - in line with the national competition policy - to identify -

•  areas of unnecessary, duplicative, or ineffective regulation that could be removed or streamlined without undermining the safety or quality of therapeutic goods available in Australia; and 
• opportunities to enhance the regulatory framework so that Australia continues to be well positioned to respond effectively to global trends in the development, manufacture, marketing and regulation of therapeutic goods. 

The Review will be led by "a panel of three eminent experts": Emeritus Professor Lloyd Sansom (ex Chair of the Pharmaceutical Benefits Advisory Committee), Professor John Horvath (ex Chief Medical Officer) and Mr Will Delaat  (ex Managing Director of Merck, Sharp & Dohme  Australia/NZ).

It's yet another review of the TGA. (Some past reviews are noted here and here.)

The terms of reference are -

Background

1. Australia has, by a number of different measures (life expectancy, survival with cardiovascular disease, survival with a range of cancers), amongst the best health outcomes of the OECD countries.

2. The regulatory framework of the Therapeutic Goods Administration (TGA) provides an important protection to the Australian community ensuring only safe and effective medicines and medical devices are granted authority to be marketed and/or exported.

3. The TGA also performs crucial post-market roles including the regulation of advertising for therapeutic products and the monitoring of adverse events to ensure the ongoing safety of therapeutic products.

4. A safe and effective regulatory framework for medicines and medical devices should balance safety and market access priorities to the benefit of patients and industry and align with the government’s commitment to increase productivity and competitiveness.

5. It is timely to review the regulatory framework and processes under which the TGA operates, to identify opportunities to improve its operations. This will ensure the TGA is able to operate effectively and efficiently in comparison with high quality international regulators, in respect of regulatory imposts such as timeframes and costs to industry, while also maintaining appropriate public health and safety protections.

Scope of the Review

6. The Review will benchmark TGA regulatory arrangements against trusted international authorities.

7. The Review will make recommendations and related implementation information to:

a. Ensure there is an appropriate balance between risk and benefit in the regulation of prescription, over-the-counter, complementary medicines and medical devices, as well as access for individuals to unapproved medicines and medical devices;

b. Simplify and streamline the approval processes undertaken by TGA. This will include recommendations on: i. fast tracking approvals processes for medicines and medical devices; ii. opportunities for working together with trusted regulators in other jurisdictions, including the potential for work-sharing assessments for products marketed in multiple countries; and iii. exploring how risk assessments, standards and determinations of trusted regulators can be used more extensively by Australian regulators when approving the supply of medicines and medical devices.

c. Ensure regulatory arrangements are sufficiently flexible to accommodate developments in medicines and medical devices, including exploring opportunities to streamline approvals that cross regulatory categories;

d. Improve the processes that assist industry, researchers and consumers to navigate the regulatory system for medicines and medical devices;

e. Support work underway on medical device reforms and clinical trial approval arrangements in Australia; and

f. Any other matters that the review committee regards as important and relevant to the safe and efficient supply of effective medicines and medical devices to the Australian people.

8. The Review will not make recommendations in relation to:

a. Any aspect of the Pharmaceutical Benefits Scheme;

b. Work by the Department of Health on the reimbursement systems, including reimbursement and or subsidy of medicine and medical devices;

c. National Health and Medical Research Council arrangements relating to research and development; or

d. Work currently underway by the Department of Health and the Department of Industry on ethics processes for clinical trials.

The associated discussion paper indicates that

The Panel has identified a number of core principles which we believe should underpin the Review and provide a lens through which issues and options can be viewed.

Principle 1 The role of regulation is to manage risk in order to protect public health and safety.

Principle 2 The level of regulation should be commensurate with the risk posed by the regulated products.

Principle 3 A risk benefits approach to the regulation of therapeutic goods is appropriate.

Principle 4 The regulation of therapeutic goods should take a whole of lifecycle approach. As a result, the regulatory system must: • Have capacity to source and analyse data as it becomes available. • Recognise and respond in a timely way to changes in the risk profile of products across their lifecycle. • Provide for whole of life solutions, from product development to withdrawal/disinvestment. • Be transparent and understood by all stakeholders, including manufacturers and sponsors of therapeutic goods, health professionals, and consumers.

Principle 5 The ultimate responsibility for medicines and medical devices regulation should remain with the Commonwealth. • Australia should maintain its capacity to undertake assessments of medicines and medical devices for safety, quality, and efficacy. • The role of the regulator undertaking this assessment should be considered in light of approaches taken internationally.

TRUSTe

EPIC reports that the US Federal Trade Commission has settled a consent agreement with privacy certification provider TRUSTe after alleging that deception of consumers with the company's privacy seal program.

EPIC states that

TRUSTe performs privacy compliance assessments for websites, and provides a set of icons for websites to display. By displaying TRUSTe icons, websites convey to users that they comply with various privacy requirements. The FTC brought the charges under Section 5 of the FTC Act, which allows the Commission to prohibit "unfair or deceptive" trade practices.

The FTC charged TRUSTe with failure to conduct re-certifications for companies that displayed privacy seals, although TRUSTe's website states that it conducts annual re-certifications. "TRUSTe promised to hold companies accountable for protecting consumer privacy, but it fell short of that pledge," stated FTC Chairwoman Edith Ramirez. Under the consent agreement, TRUSTe is prohibited from misrepresenting business practices to consumers, must pay a $200,000 fine, and must submit a detailed filing to the FTC every year describing its COPPA recertification process.

The Federal Trade Commission has also investigated a number of companies displaying Safe Harbor or other privacy seals without renewing their certifications. The Safe Harbor Framework, coordinated by the Department of Commerce, is an industry-developed, self- regulatory approach to privacy compliance that allows firms to self- certify privacy policies. In February 2014, the FTC settled charges with 12 companies for failure to renew their Safe Harbor privacy certifications while continuing to post the Safe Harbor icon on their websites.

EPIC subsequently submitted comments to the FTC regarding the proposed settlement agreements. The comments highlighted the weaknesses in Safe Harbor oversight, and urged the FTC to prioritize Safe Harbor enforcement and to broaden the scope of the consent orders by requiring the companies to comply with the Consumer Privacy Bill of Rights. EPIC also requested that the FTC to make public the companies' annual compliance reports.

Australian Crime Costs

'Counting the costs of crime in Australia: A 2011 estimate' (Australian Institute of Criminology Research in Policy and Practice no.129, 2014) by Russell G Smith, Penny Jorna, Josh Sweeney and Georgina Fuller offers an estimate of "the cost of crime to our community" as of 2011.

The AIC estimates that the total cost of crime in that year was $47.6 billion, equivalent to 3.4 percent of national GDP.

This represents a 49% increase since 2001, where the total cost of crime was calculated as $31.8b (3.8% GDP). However, in terms of percentage of GDP, the overall cost of crime decreased over the period 2001 to 2011. 

The "most extensive costs" are attributed to

•  administering criminal justice agencies (police, courts and corrections), 
• assisting victims, 
• insurance and 
• greater investment on crime prevention measures. 

These costs doubled, from $12.8 billion in 2001 to $24.6 billion in 2011. In the 2011 estimates "additional Government agency costs" were included in the calculations.

The AIC estimates that the "most costly crimes to the community" were -

• Fraud ($6b) 
• Drug Abuse ($3b) 
• Assault ($3b) 
• Criminal Damage (vandalism and graffiti) ($2.7b) 
• Arson ($2.2b) 

In dealing with "Criminal justice system costs" the AIC states that

According to the Report on Government Services for 2011–12 (SCRGSP 2013), the total real recurrent expenditure (less revenue from own sources) on justice in 2010–11 was $13.1b. Of this, approximately $12.5b was spent on criminal justice. The remaining $635.5m was spent on the administration of civil courts. 

Police costs 

According to the Report on Government Services for 2011–12, real recurrent expenditure (including user cost of capital, less revenue from own sources and payroll tax) on police services for 2011–12 was $9,459m (SCRGSP 2013). This relates to state and territory policing only and excludes the cost of the AFP and other federal non-policing law enforcement agencies, which are included within Commonwealth costs below. Not all police time is spent on crime, however. For example, New South Wales Police Force (2012) estimated that almost 80 percent of time was spent either responding to incidents, criminal investigations or giving judicial support; the remaining 20 percent being spent on traffic and commuter services (although some of this time may have involved criminal matters) and support functions. The attribution of time by the New South Wales Police Force was similar to findings of the UK Her Majesty’s Inspectorate Constabulary (2012) who found that between 80–90 percent of police time was spent dealing directly or indirectly with crime. On the basis of an 80 percent allocation for crime-related functions, the total cost of policing crime in Australia in 2011–12 was $7,567m. 

Prosecution agency costs 

Previous AIC research into the costs of crime has excluded the cost of public prosecutions of criminal conduct. As this is an important area of expenditure, this is being canvassed in the present report for the first time. The recurrent expenditure on state and territory prosecution agencies in 2011–12 was $303m (see Table 29). The costs of the Office of the CDPP are included within Commonwealth costs of crime below. ... 

Court costs 

According to the Report on Government Services for 2011–12, real recurrent expenditure (net of monies received through electronic infringement and enforcement systems less payroll tax) on criminal courts for 2011–12 was $779,956,000 (SCRGSP 2013). This relates to state and territory courts at supreme, district/county and magistrates’ levels including children’s courts, coroners courts and probate registries, as well as federal courts, but excluding the High Court of Australia and tribunals, and specialist jurisdiction courts such as Indigenous courts, circle sentencing courts and drug courts. The cost of criminal matters handled by the High Court of Australia is included as part of the federal government costs below. 

In the case of coroners’ courts, not all coronial proceedings relate to criminal matters, as coroners are required to investigate all deaths that have occurred if the death appears to be unexpected, unnatural, or violent, the death is of a person who was in custody or care, or the death occurred as a result of a fire or explosion (New South Wales Coroners Court 2013). Costs of coroners’ courts for each jurisdiction in 2011–12 were $41.1m. It is estimated that one-half of national coroners’ court costs relate to crime, amounting to $20.6m which was deducted from the above Productivity Commission figure, making a total of $759,356,000. 

Corrective services 

According to the Report on Government Services for 2011–12, total recurrent operating expenditure and capital costs on prisons and community corrections, less payroll tax in 2011–12 dollars was $3,255,782,000 for prisons, $103,013,000 for transportation costs and $478,053,000 for community corrections, totalling $3,836,848,000 (SCRGSP 2013). This relates to public and private sector-operated adult custodial facilities and community corrections. These corrective services costs do not include juvenile justice costs, which are discussed below, nor the costs of police custody (which are included within policing costs above), offenders (or alleged offenders) held in psychiatric institutions or people held in immigration or military detention. 

Commonwealth agencies 

A number of Commonwealth agencies have functions and programs that relate to crime and its control. As noted above, where new crime reduction programs are used, government outlays increase accordingly and so the cost of responding to crime is closely related to the ways in which criminal justice policy is framed. On the basis of information presented in Department of Attorney-General 2011–12 Portfolio Budget Statements, the total resources allocated to the portfolio were $4,762m (AGD 2013). Examining the expense measures for each agency that could have some crime relevance, a percentage of total resources was estimated for those portfolio agencies that have some criminal justice and crime-related relevance (see Table 30). The percentage is indicative only, as precise crime-related cost allocation was not always apparent. The total estimated resources allocated to crime and its control, excluding terrorism across all agencies was $1,792m in 2011–12.  ... 

In addition to agencies within the Attorney-General’s Portfolio, there are other Commonwealth departments and agencies that undertake functions in relation to the prevention, control or response to crime. One example is the Department of Agriculture Fisheries and Forestry Biosecurity Division that works with the Australian Customs and Border Protection Service in maintaining the integrity of Australian borders. The Department of Agriculture Fisheries and Forestry allocated $297m in the 2011–12 financial period for quarantine and export services at Australian ports and borders. Other agencies that have some crime-related functions include those dealing with Indigenous Australians, the Australian Bureau of Statistics, agencies dealing with communications and computer security, research and scientific agencies, corporate and business regulatory agencies, revenue and finance agencies, and health and welfare agencies. Further research is needed to disaggregate the crime-related functions of these departments and agencies from their other functions in order to provide an accurate assessment of their contribution to the overall costs of crime in Australia, while ensuring that double counting does not occur.

The Waitangi Crown

The Crown in New Zealand: Anthropological Perspectives on an Imagined Sovereign’ by Cris Shore and Margaret Kawharu in (2014) 11(1) SITES: New Series 17 comments

The ‘Crown’ in New Zealand is often seen as an essential partner in the Treaty of Waitangi relationship between Maori and the government, yet as some legal commentators have noted, the Crown itself is a ‘legal fiction’ and a ‘shape-shifting’ symbol whose definition is obtuse and whose meanings vary according to context. This article reports on an ethnographic study that examines how the concept of the Crown is understood and contested in New Zealand. It also examines the different ways in which the Crown as a political, legal and symbolic entity shapes policy and practice. We ask, what exactly is the Crown, how is it imagined and personified, when and why is the discourse of the Crown used, and what are the implications of its continual usage? We argue that the Crown is an imagined yet extraordinarily powerful entity that represents more than simply a proxy for the New Zealand state. It needs to be deconstructed in order to shed light on the symbolic and discursive work it performs in maintaining New Zealand’s political and constitutional order. We also outline some of the key findings of our pilot study and suggest future directions for research.

 The authors argue that

The Crown lies at the heart of New Zealand’s constitutional order and is often presented as an essential partner in the Treaty of Waitangi relationship yet, as former Attorney-General Margaret Wilson notes, ‘it is also a useful fiction that enables government to distance themselves from direct responsibility for obligations under the Treaty.’ The implications of this contradiction are profound yet have rarely been explored: how can the Crown be both a core Treaty signatory and a ‘useful fiction?’ Legal scholars recognise that the Crown, as a metonym for government and the state, is a ‘shapeshifting symbol’, an abstract entity that historically embodied the British Empire but today serves as a compendious cloak for aligning archaic rules, ceremonies and meanings with the trappings of contemporary governmental authority. But if the Crown ‘has different meanings according to context,’ as even the Supreme Court of New Zealand now acknowledges, what exactly are those meanings and how does the Crown manifest itself in different contexts? How does this ambiguity affect those who deal with the Crown – either as plaintiffs or as officials – in its different guises? Perhaps more importantly, what does the shapeshifting nature of the Crown tell us about the character of the state in New Zealand and the practice (or art) of government? Despite major interest in the Crown as a legal concept in New Zealand, to date very little attention has been paid to how the Crown is personified and embodied or to its symbolic and semiotic character; that is, to the Crown as a cultural entity and social institution. 

This article sets out to address these questions and fill that lacuna by examining how the concept of the Crown is understood and contested in New Zealand. In doing so, we report on an ethnographically informed pilot study carried out in 2012 involving both personal observations and in-depth interviews with Crown officials, legal and constitutional experts, politicians and Maori leaders. Our primary aim was to examine the different meanings that the Crown holds for legal and political elites in New Zealand; i.e., to understand how they imagine the Crown and the implications of these imaginaries. We also sought to analyse the different ways in which the rhetoric of the Crown is used to buttress authority, legitimize decision-making, and shape policy and practice. 

That interest was piqued by our observations of the curious and sometimes contradictory ways in which government ministers invoke ‘the Crown’ in their political oratory and public pronouncements. Sometimes ministers will speak to an issue of public policy as members of Parliament, the ruling National Party, the government, and as ‘the Crown’ itself – often oscillating between all four registers. This raises the question ‘what exactly is the Crown’ and when is that term used (or not used) in political and legal discourse? As we discovered, the Crown in New Zealand is typically taken for granted and treated as a given that requires little or no explanation. We therefore set out to deconstruct the Crown in order to shed light on its symbolic meanings and the discursive work that it performs in maintaining New Zealand’s political and constitutional order. Our argument is presented in four parts. First, we outline the methodology used in our study, the rationale for the research and the anthropological issues it raises. Our hypothesis is that the Crown, as proxy for state authority, provides a useful optic for understanding the changing nature of the state and nation in New Zealand, and may have significance for other post-colonial societies as well. Second, we ask, how should we conceptualise the Crown, how is it perceived, and why is defining and locating it problematic? Third, we draw on our fieldwork interviews and observations to examine people’s understanding and experience of the Crown. We also examine some of the contradictory ways in which the Crown is made visible in New Zealand, how these different representations are interpreted and what they symbolize. Finally, we consider some of the ways in which the concept of the Crown is put to work in New Zealand public discourse – and with what implications.

Citizenship

The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) - shortly off to the Senate - is described as amending the Australian Citizenship Act 2007 (Cth) to

insert, clarify and strengthen key provisions of the Act relating to:

• extending good character requirements; 

• clarifying residency requirements and related matters; 

• circumstances in which a persons approval as an Australian citizen may or must be cancelled; circumstances in which the Minister may defer a person making the pledge of commitment to become an Australian citizen; 

• circumstances in which a persons Australian citizenship may be revoked; the power of the Minister to specify certain matters in a legislative instrument; 

• the use of personal information obtained under the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) for the purposes of the Act and the Australian Citizenship Regulations 2007 (Cth); 

• the disclosure of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and minor technical amendments.

The Bill also amends the Migration Act to enable the use of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act and the Migration Regulations, and to enable the disclosure of personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act and the Citizenship Regulations.

The proposed new regime will

• require all citizenship applicants to be of good character in order to be eligible for Australian citizenship, including applicants under 18 years of age; 

• extend the bar on approval as an Australian citizen related to criminal offences to all applicants for citizenship; 

• extend the offence provisions in the Act to capture more modern sentencing practices, including circumstances where a person is subject to an order of a court for home detention, an order of a court requiring the person to participate in a residential scheme or program, or circumstances in which the person has not been sentenced to a term of imprisonment but is nevertheless under an obligation to a court; 

• provide for the mandatory cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences; 

• provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because of identity, having been assessed as a risk to security or being subject to the bar on approval related to criminal offences; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; increase the maximum period of deferral for making the pledge of commitment to become an Australian citizen from 12 months to 2 years; 

• replace the current automatic provision in the Act which deems a citizen by descent never to have been a citizen, in spite of being approved by the Minister, if they did not have an Australian citizen parent at time of birth (section 19A), with a discretion for the Minister to revoke a persons Australian citizenship if the person has been approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given (except in circumstances where the revocation decision would result in the person becoming stateless); 

• provide the Minister with the discretion to revoke a person's Australian citizenship where acquired by descent, conferral or under intercountry adoption arrangements if the Minister is satisfied that the person obtained Australian citizenship as a result of fraud or misrepresentation in certain circumstances regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation (and regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen themselves, or some other person); 

• provide that the Citizenship Regulations may confer on the Minister the power to make legislative instruments; clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act or the Citizenship Regulations; 

• clarify that the Minister, the Secretary or an APS employee in the Department of Immigration and Border Protection (the Department) may disclose personal information obtained under the Act or the Citizenship Regulations to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations; and make certain consequential amendments.

The Bill  amends the Migration Act to -

allow the Minister, the Secretary or an officer to use personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and

allow the Minister, the Secretary or an officer to disclose personal information obtained under the Migration Act or the Migration Regulations to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act and the Citizenship Regulations, subject to a specified exception.

In relation to privacy the Explanatory Memorandum states -

The purpose of this amendment is to clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the regulations under that Act or personal information disclosed under subsection 488C(3) of the Migration Act (inserted by item 77 below) for the purposes of the Act or the regulations under the Act.

Such personal information would include, but would not be limited to: information provided by the person themselves or a third party to the Department concerning an application for a visa made by the person; information provided by the person themselves or a third party to the Department concerning the cancellation, or possible cancellation, of a visa held by the person under the Migration Act.

The uses for which the personal information will be put include, but would not be limited to, making a decision whether to approve or refuse to approve the person becoming an Australian citizen under the Act.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for use for citizenship purposes unless express permission is received.

New subsection 53A(3) of the Act provides:

Disclosure

The Minister, the Secretary or an APS employee in the Department may disclose personal information obtained under this Act, or the regulations under this Act, to the Minister, the Secretary or an officer (within the meaning of the Migration Act 1958) for the purposes of that Act or the regulations under that Act.

The purpose of this amendment is to clarify that personal information obtained under the Act or the Citizenship Regulations may be disclosed to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act.

Such personal information would include, but would not be limited to, personal information provided by the person themselves or a third party to the Department concerning an application to become an Australian citizen made by the person.

The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purposes of the Privacy Act 1988 (Cth). As migration and citizenship matters are currently contained within the same portfolio (administered by the Department) the exchange of personal information between officers dealing with migration matters and officers who deal with citizenship matters constitutes a use, rather than a disclosure, of that personal information.

However, it is possible that migration and citizenship matters could be split between different portfolios in future. On this basis, a provision that permits the disclosure of  personal information obtained under the Act or the Citizenship Regulations to the Secretary or to an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act is inserted.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for disclosure for citizenship purposes unless express permission is received.

New subsection 53A(4) of the Act provides:

Definitions

In this section: personal information has the same meaning as in the Privacy Act 1988. Secretary means the Secretary of the Department.

"Personal information" is defined in section 6 of the Privacy Act to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

The purpose of this amendment is to insert new definitions for the purposes of new section 53A of the Act.

The Privacy Act applies to the use and disclosure of personal information by Australian Privacy Principle (APP) entities. The Department is an APP entity for the purposes of the Privacy Act.

As an APP entity the Department must use and disclose personal information in accordance with the Australian Privacy Principles (APPs) prescribed in Schedule 1 to the Privacy Act. Australian Privacy Principle 6 prescribes when the Department may use or disclosure personal information. Australian Privacy Principle 6 generally provides that the Department can only use or disclose personal information for a purpose for which it was collected (the primary purpose) or for a secondary purpose if an exception applies. An exception prescribed in APP 6.2(b) of the Privacy Act provides that personal information may be used or disclosed if it is required or authorised by or under an Australian law.

For the avoidance of doubt, the use of personal information in accordance with new subsections 53A(1) and 53A(2) is a use that is authorised by an Australian law for the purposes of the Privacy Act. The disclosure of personal information in accordance with new subsection 53A(3) is a disclosure of personal information that is authorised by an Australian law for the purposes of the Privacy Act.

Grey Literature

'Where is the Evidence? Realising the value of grey literature for public policy & practice: A discussion paper' by Amanda Lawrence, John Houghton, Julian Thomas and Paul Weldon provides a "snapshot" by Grey Literature Strategies at Swinburne

 of our research to date and makes a number of suggestions and recommendations. This is the starting point for what we hope will be an ongoing conversation amongst interested parties.

The authors comment -

The internet has profoundly changed how we produce, use and collect research and information for public policy and practice, with grey literature playing an increasingly important role. The authors argue that grey literature (i.e. material produced and published by organisations without recourse to the commercial or scholarly publishing industry) is a key part of the evidence produced and used for public policy and practice. Through surveys of users, producing organisations and collecting services a detailed picture is provided of the importance and economic value of grey literature. However, finding and accessing policy information is a timeconsuming task made harder by poor production and management of resources and a lack of large-scale collection services able to host and make available relevant, high-quality resources quickly and efficiently. The paper makes recommendations for changes that would maximise the benefits of grey literature in the public interest and seeks feedback from readers to inform the final report of the research project.

Public policy work increasingly relies on a wide range of resources — some are traditional scholarly publications, but the majority are ‘grey literature’. Reports, discussion papers, briefings, reviews and data sets produced by government, academic centres, NGOs, think tanks and companies are heavily used and highly valued in policy and practice work, forming a key part of the evidence base.

The huge amount of information and research published online provides unprecedented access to knowledge, from a wide range of sources, enabling a much greater level of understanding and participation in public interest issues. It also brings a number of challenges: searching, sifting, evaluating and accessing information and research are time-consuming and often frustrating tasks occupying a large portion of the day for those engaged in policy work. Online publishing also creates a new paradigm for those whose task it is to support policy and practice work through effective resource provision and information management. As a result, digital curation of policy resources, particularly grey literature, is dispersed and fragmented, creating a digital black hole of resources that are being lost from online access over time.

About the project

The aim of the Grey Literature Strategies research project is to investigate grey literature’s role and importance in public policy and to find ways to enhance its value. A key method used was online surveys of producers, users, and collectors of information and research for policy and practice, conducted during 2013. Grey literature is heavily used and highly valued for policy work

The most common resources, consulted regularly or occasionally by over 80% of surveyed policy information users, are reports, journal articles, discussion papers, and ‘briefings, guides and research reviews’. News reports and conference papers are used regularly by 79%, and two-thirds of policy workers use books and data regularly or occasionally. Working papers, submissions and evaluations are used by more than half of all policy workers regularly or occasionally. The most important or very important resources used are reports (81%), journal articles (75%), discussion papers (69%), briefings, reviews and guides (66%) and data sets (61%).

Public policy is driven by a complex network of knowledge exchange across and within sectors. Government is not only a consumer of information and research, but is also a major producer in its own right. The most important sources of information for policy workers surveyed are government departments and agencies (94%), university centres or departments (83%), NGOs (79%), scholarly or commercial publishers (78%), think tanks (55%), and commercial research companies and consultants (31%). Information users report that they value grey literature because: their work depends on grey literature; grey literature provides a broad view of the research environment and perspectives; grey literature is a unique source of information on topics, sources and issues not found elsewhere; grey literature is essential for public policy; academic journals do not cover the same issues; grey literature is widely available online for free; and grey literature is often the most timely source of information.

Policy grey literature is produced for impact and often paid for by public funds

The most important reason to produce material for more than 90% of organisations surveyed is to contribute to the evidence base and inform public policy. Other aims are to translate knowledge for public use (84%), and to maximise public access to research and information (79%). Financial gain is not an important consideration for most organisations surveyed, even for those in the commercial sector. It is probable that most of the material produced by government, NGOs and education organisations is paid for through public funds.

Policy makers and practitioners struggle to find and evaluate relevant resources

Dissemination, discovery and access have become increasingly complex in the digital environment. Most of the users we surveyed find out about new information through the websites of key organisations, email newsletters, and colleagues sharing information. Almost half of surveyed information users would use resources more often if they were easier to find or access, with the most requested being journal articles, data and statistics, reports, and government material. Finding relevant resources including knowing what exists and where to look, and the amount of time required to sift and evaluate, are major issues for 45% of information users surveyed. Accessing resources — particularly the cost of journal articles and market research, and problems accessing government content — are problematic for 43% of information users surveyed. Poor production quality, the difficulty of evaluating credibility, the lack of collecting services and problems caused by link rot were also mentioned.

There is a lack of digital curation and services are hampered by outdated legislation

Finding and accessing policy information is a time-consuming task made harder by poor production standards and a lack of large-scale collection services able to host and provide relevant, high-quality resources quickly and efficiently. Despite users’ preference for online access to policy resources, large digital collections are much less common than print. There is a series of factors that make the collection of digital grey literature difficult, despite the value users place on it: copyright; the lack of digital infrastructure planning and management; the difficulty of discovery and evaluation; and the lack of standards in production and cataloguing.

Opportunities and recommendations

There are clear opportunities to reduce the challenges and increase the benefits of digital grey literature. Production practices could be improved, and mandates could be created for greater access to publicly funded research. Large-scale digital collection infrastructure, collaborative cataloguing systems and shared standards could be developed for efficient collecting at web scale. Reforming legal deposit and copyright legislation to support fair use provisions for preservation and access to non-commercial material of public interest would make large-scale collecting more efficient and achievable. Such reforms are a no cost win:win.

We therefore provide the following five recommendations for maximising the value of grey literature:

Recommendations

1. Improve production standards and transparency

2. Ensure greater discoverability and accessibility

3. Recognise the value of grey literature for scholarly communication

4. Improve collection and curation of policy resources

5. Reform copyright and legal deposit legislation.