Emergencies

'The Law of Emergency and Reason of State' (LSE Legal Studies Working Paper No. 18/2016) by Thomas M. Poole examines

 the role of human rights in political emergencies. It introduces the concept of reason of state as an alternative to theories of emergency powers that are based on either state prerogative or liberal legalism. It argues that state prerogative and liberal legalism suffer from a common defect: both are premised on a dynamic of norm and exception and thus are poorly equipped to deal with the ‘pseudo-emergencies’ that dominate state practice today. Reason of state better illuminates ongoing legal and political dynamics by focusing on the state’s role as custos – a guardian or protector of the regime of law – and the pressures such a claim place on legal order. Viewed from this perspective, human rights adjudication can be seen as a mechanism for normalizing and constitutionalizing reason of state by subjecting its exercise to public deliberation, contestation, and justification.

Poole comments

One of the major juridical puzzles of our times is the role of human rights in political emergencies. This focus results largely from a change in political weather. But it is also a natural by-product of the coming of age of rights. Our more turbulent global politics has thus produced the first systematic test for rights jurisprudence. A common response to the puzzle is to approach it in terms of the opposition of rights and emergency and to map it conceptually in terms of the dynamics of norm and exception. This paper responds to the puzzle rather differently. It argues that much of what we have tended to group under the banner of ‘emergency’ has been misdescribed, and that the idea of ‘reason of state’ provides a more nuanced and subtle framework with which to make sense of relevant juridical developments. 

One reason to prefer the reason of state framework is that what we tend to be talking about is not so much real or genuine emergencies as pseudo- emergencies – that is, moments of heightened tension as opposed to more serious or existential threats. The difficulties faced by Western states in the last decade or so cannot plausibly be described in terms of a state of emergency or a state of siege without doing radical disservice to those terms. What is more symptomatic is the increase in, and perhaps more aggressive use of, a particular element of state action, which centrally concerns a special type of authority claim that is normally attached to a plea for special measures and which invokes the state’s capacity as protective agent (salus populi). This element is so enduring that I think we must take it to be an ineliminable part of political life. It is true that there have been meaningful developments in this terrain at the international level, not least the UN Security Council targeted sanctions regime. And profound questions have been asked at the supranational level, most notably in respect of the legal order of the European Union. But, for better or worse, the main locus of activity in this area remains the state. 

In former times, lawyers might well have been tempted to place the type of action we have seen within the sphere of the prerogative. That term is no longer appropriate, save perhaps as a metaphor. In Locke’s familiar definition, prerogative is a power to be exercised in the public good that operates extra et contra legem: that is, outside and against the existing framework of settled and standing laws. But governments today typically act on the basis of explicit legislative authority, or defend action by reference to a statute or regulation. They tend to operate, that is, for the most part within the existing legal framework. As a result, the problem we encounter lies not on the boundary where legitimate but extra-legal authority meets unauthorized political violence, but in the aberrant use of ordinary modes of legality for violent or morally dubious ends. Reason of state is a better guide through the modern configuration of what might once sensibly have been called the prerogative zone. Like prerogative, it is a concept with a considerable pedigree, not to mention baggage. But it is less tied to a particular jurisdiction or legal form. It can thus focus our attention squarely on what is important about this area, namely the idea of the state acting in the persona of custos, as guardian or protector of the regime of law – and the squeezing of the regime of law that seems to follow from such a claim. Getting the conceptual vocabulary right matters. Politicians, courts, and citizens continue to face difficult questions in this zone, and applying the wrong framework risks making various types of error. We tend to respond differently – socially and psychologically, as much as politically and legally – according to how a problem is framed. This intuition is explored schematically in the first part of the paper, which examines three frameworks that are commonly drawn on by lawyers seeking to make sense of developments in this area: political emergency, liberal idealism, and reason of state. As these terms are explained shortly, I will not elaborate upon them at this stage, other than to say that my general argument is that the political emergency framework overdramatizes the legal problematic we face and liberal idealism seeks almost to wish the problem away. The reason of state framework offers instead, I suggest, a descriptively powerful theory. 

The second part of the paper adds a more practical dimension to this conceptual study. It shows how the courts, for the most part, tend to avoid the logic of political emergency. Even where they are drawn into the language of ‘public emergency,’ as for instance when they decide questions relating to the exercise of a power to derogate from a human rights convention, courts tend to apply such language in an incomplete and half-hearted fashion. The recent jurisprudence on security matters makes more sense when seen through the lens of reason of state. Indeed, we have increasingly seen a wide variety of meso- and micro-level strategies and disputes, and these fit the logic of reason of state much closer than they do alternative accounts. 

We turn finally to the role that rights play in reason of state decision-making. The fit is by no means a simple one. There is always a danger that rights serve to do little more than normalize and justify potentially aberrant state action. But from a liberal pragmatist perspective, rights continue on balance to provide a crucial part of a strategy to structure and constrain reason of state behaviour. Their most important function is to help open up and keep open a process of legal-political discourse and scrutiny.

War Law, legal writing and discourse theory

The 72 page 'A Critical Assessment of the New Department of Defense Law of War Manual' by David W. Glazier, Zora Colakovic, Alexandra Gonzalez and Zacharias Tripodes in (2017) Yale Journal of International Law comments

In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.

This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.

The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.

The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.

Gordon J in 'Applying reason to Reasons – start, middle and the end' comments

Contrary to many misconceptions, the completion of a draft is not the end. It is simply the start of another process – redrafting and editing. This means that the process of thinking, writing, and re-writing begins again.

For my part, I stop and ask myself the following questions:

• Have I answered each of the questions I identified at the beginning? And, on reflection, were the questions I posed the right questions?

• Is the draft persuasive? Go through and analytically review each finding, factual or legal – sentence by sentence – and ask "why?" Why is this necessary and have I explained my conclusion? If it is not necessary, remove it. If the conclusion is necessary but you have not explained it, amend the draft. Remember your audience. You cannot write any piece of writing intended to persuade an audience without knowing who your audience is. 

• Have I written in the English language? This question may seem facetious, but it is important to ensure you do not write in some foreign tongue called "legalese". Write clearly, simply, using accepted canons of grammar and punctuation. This is always important. But perhaps even more so when it comes to administrative decisions, where, in many cases, the person affected by the decision will not be a lawyer. Of course, if you must use technical terms, use them properly. But using technical terms does not mean that you cannot and should not take time to simplify and clarify your written work. 

• Have I left a small footprint? In other words, do not include things that are not necessary to answer the questions. Why? You simply run the risk of confusing the reader and muddying the waters.

After completing a draft, put it aside for a period. When you go back to it, print it out in hard copy. Do not read off the screen. Then, take a red pen in one hand and complete the following tasks:

• remove every unnecessary word; Why? To make it clearer and more concise. 

• remove every amplifier and adjective i.e., "clearly", "very", "most", etc; 

• substitute the simple for the complex or formal10. For example, "cease" should read "stop", "endeavour" should read "try". There are many others. 

• avoid legalisms and lawyerisms: For example, "adjacent to" should read "next to", "be able to" should read "can", "enter into a contract with" should read "contract with", "for the duration of" should read "while". Again, there are many others. 

• provide it to someone who knows nothing about the draft and ask them to read it. If they cannot understand it, then it is a sure bet that the intended audience will have great difficulties.

I wonder what Gordon J would think of 'Beyond Edward Said: An Outlook on Postcolonialism and Middle Eastern Studies' by Govand Khalid Azeez in (2016) Social Epistemology -

At the forefront of critically examining the effects of colonization on the Middle East is Edward Said’s magnum opus, Orientalism (1978). In the broadest theoretical sense, Said’s work through deconstructing colonial discourses of power-knowledge, presented an epistemologico-methodological equation expressed most lucidly by Aime Cesaire, colonization=thingification. Said, arguing against that archaic historicized discourse, Orientalism, was simply postulating that colonialism and its systems of knowledges signified the colonized, in Anouar Abdel-Malek’s words, as customary, passive, non-participating and non-autonomous. Nearly four decades later, Said’s contribution has become tamed and domesticated to an extent that most heterodoxic critical endeavours in the field have become cliche´d premeditated anti-Orientalist tirades. At best, these critiques are stuck at analysing the impact of power at the macro-level, polemically regurgitating jargons like “hegemony”, “misrepresentation” and “Otherness”. At worst, they have become dogmatic or ethnocentric, closing space for scholarly debate through insipid cultural relativism, pathological religiosity or pernicious Occidentalism. I argue there is a need to go beyond that old postcolonial epistemological equation through examining the follow on effects of thingification on the thingified subject’s Weltanschauung, cultural practices and more importantly, subjectivity. I aim to undertake this critical endeavour through theorizing what I call Counter-Revolutionary Discourse (CRD). This discourse is an historicized, Eurocentric-Orientalist implicit programme of action and an analytical tool, which functions as a cognitive schema and a grammar of action that assists the colonial apparatus in surveillance, gauging, ranking and subjectifying Middle Eastern subjectivity and resistance according to imperial exigencies. Through tracking the matrix of Western statements, ideas and practices, I demonstrate that imperial enthusiasts in encountering Middle Eastern revolutions, from the Mahdi, Urabi, Zaghloul, Mossadegh, the PLO and the PKK to the ‘Arab Spring’, draw on a number of Counter-Revolutionary Discourse systems of thoughts, which I argue are responsible for re-interpellating Oriental subjectivity and resistance. In the process, I put forward a new post-Saidian equation that not only transcends that tried and tested scholarly narrative, but a formula much better suited for tracing the infinite and insidious effects of neocolonial power that aims to negate the negating act: Colonization=thingification +re-interpellation of subjectivity.

And from there we are into the land of wording such as 'sublate', 'doxographers', 'rupture', 'fissure', 'constitutive Lacanian-like gap', ' philosophico-ontological formula', 'Foucauldian disciplinary-biopower and Mbembean-Agambean influenced necropolitical', 'homology', 'dispositions', 'microphysical' ...

Counter-Revolutionary Discourse - an "unconscious yet material intersubjective ideological framework" - is characterised as

an "historicized, Eurocentric-Orientalist implicit program of action and an analytical tool, which functions as a manual that assists the colonial apparatus in surveilling, gauging, ranking and subjectifying” Oriental subjectivity and resistance according to imperial exigencies ... founded upon religious and missionary zeal, aristocratic pride,noble rapaciousness, capitalist greed, blind provincialism, racial hauteur, narcissistic egoism and delusions of grandeur.

Whistleblowing

Commendably keen on whistles, but only those with the right pitch? The Minister for Revenue and Financial Services has today released the 'Review of tax and corporate whistleblower protections in Australia' paper for consultation, with responses due - surprise - in early February.

I do wonder why we are restricting the consultation to tax misbehaviour rather than whistleblowing generally.

The Minister's media release states

This consultation is the next step in implementing the Government's commitment to Australia's first Open Government National Action Plan and the announcement in the 2016-17 Budget that protections for tax whistleblowers be developed.

The Government is committed to the reform of whistleblower protections in the corporate and taxation areas. This consultation process will complement the Parliamentary inquiry into whistleblower protections in the corporate, public and not-for-profit sectors. 

'Whistleblowing plays a critical role in uncovering corporate and tax misconduct. It is a key means of combating poor compliance cultures, by ensuring that companies, officers and staff know that misconduct will be reported. Active protection of whistleblowers to encourage them to make disclosures is essential and the Government is determined to ensure it has the right legislative settings in place to achieve this, while at the same time ensuring disclosures can be fully investigated and that procedural fairness is provided to those who may be the subject of a disclosure' said Minister O'Dwyer.

The Treasury website states

In the 2016-17 Federal Budget the Government announced the introduction of new arrangements to better protect tax whistleblowers as part of its commitment to tackling tax misconduct. In addition, as part of the Open Government National Action Plan, the Government has committed to ensuring appropriate protections are in place for people who report corruption, fraud, tax evasion or avoidance, and misconduct within the corporate sector. This consultation paper is also intended to complement the work of the recently established Parliamentary Inquiry into whistleblower protections in the corporate, public and not-for-profit sectors. The consultation paper will assist members of the public in making submissions to either or both processes as it:

• gathers together information about existing whistleblower provisions already operating in Australia, including those under the recent amendments to the Fair Work (Registered Organisations) Amendment Act 2016, and overseas in major comparable jurisdictions; 

• includes critiques of existing Australian provisions; canvasses a range of options for reform of existing protections under the Corporations Act 2001 and similar provisions under other financial system legislation administered by ASIC and APRA which apply to corporations; 

• canvasses a proposal for tax legislation to introduce specific protections for whistleblowers; and 

• identifies the variety of legislative approaches that may be taken by the Government to broader reform in this area generally.

The results of this consultation process and any public submissions received in response to this paper will be made available to the Parliamentary Inquiry. Members of the public are invited to address any matter raised in this paper and should not feel obliged to address each and every question. Submissions for this consultation will close on 10 February 2017.

The 44 page paper comments

Currently there are no specific legal protections under tax law to ensure there is no revelation of the identity of people who disclose, on a confidential basis, information about individuals or businesses which they believe may not be meeting their tax obligations (tax whistleblowers). 

Presently, the identity of tax whistleblowers is afforded some protection incidentally via the taxation confidentiality provisions pertaining to individual taxpayer affairs (Division 355 of the Taxation Administration Act 1953) and privacy laws. 

This protection is not absolute due to a number of exemptions under the law that allow for personal information to be revealed in certain circumstances, including when the information has been disclosed voluntarily by the whistleblower (for example, if a court compels the disclosure of the identity of tax whistleblower as a result of item 1 of the table in subsection 355-70(1) of the Taxation Administration Act). Neither the taxation confidentiality provisions nor the privacy laws prohibit victimisation of whistleblowers if their identity becomes known or provides compensation if victimisation occurs. 

In addition, factual information pertaining to the name of the taxpayer and the section of tax law breached are not protected even if provided as part of a report by tax or whistleblower lawyers’ that is otherwise subject to legal professional privilege. This is because factual matters are not protected by privilege. 

The absence of specific protections and remedies to compensate tax whistleblowers puts Australia at odds with comparable overseas jurisdictions which specifically provide for each. Nonetheless, the ATO encourages reporting of behaviour that indicates particular taxpayers may not be meeting their tax or superannuation obligations. 

Currently, members of the public can inform the ATO about anyone they know who is doing the wrong thing by avoiding or reducing the amount of tax or super that they ought to be paying. Information can be provided anonymously or on a disclosed basis to the ATO by online form, phone, letter or email, or by using the ‘Report a concern’ tool in the ATO app. In addition, a specific facility is provided to allow tax practitioners to report instances of unlawful behaviour directly to the ATO. If they wish to assert a claim of legal professional privilege they need to apply via a claim form on the ATO website which aids the ATO in determining whether to accept or challenge such claims.

Information provided to the ATO is actioned by the Tax Evasion Reporting Centre (TERC). The information provided is assessed and distributed to the relevant ATO compliance areas for consideration. The information may also be used to determine industry trends, identify new risk areas and to assist in developing compliance strategies. 

Some potential whistleblowers do not use the TERC process and instead contact an ATO officer directly. While the ATO currently receives and acts on disclosures, it has no express power to protect people from reprisals or other ramifications. 

The lack of overlap with corporate sector protections is also problematic. A number of tax whistleblowers have made disclosures to the Australian Securities & Investments Commission (ASIC) in the mistaken belief that they are protected by provisions currently under the Corporations Act 2001, when in fact those provisions only provide protection for disclosures concerning contraventions of corporate, not tax, law.

It goes on to state

Statutory protections for whistleblower disclosures in the corporate sector are contained in Part 9.4AAA of the Corporations Act 2001 which was introduced as part of a range of corporate legislative reforms in 2004.

The protections offered under Part 9.4AAA in respect of any disclosure about an actual or potential contravention of corporations legislation: (a) confer statutory immunity on the whistleblower from civil or criminal liability for making the disclosure; (b) constrain employer rights to enforce a contract remedy against the whistleblower (including any contractual right to terminate employment) arising as a result of the disclosure; (c) prohibit victimisation of the whistleblower; (d) confer a right on the whistleblower to seek compensation if damage is suffered as a result of victimisation; and (e) prohibit revelation of the whistleblower's identity or the information disclosed by the whistleblower with limited exceptions.

To qualify for protection whistleblowers must: (a) be either current officers or employees of the company in question (that is, an insider) or contractors (including an employee of the contractor) to the company (that is, an outsider); (b) make the disclosure to ASIC, the company’s auditor, or nominated persons within the company 'in good faith' and have reasonable grounds to suspect that either the company, or some of its officers or staff, have breached (or might have breached) a provision of the corporations legislation; and (c) provide their names before making the disclosure (that is, the disclosure cannot be made anonymously).

If the disclosures are made to nominated company officers or to the company auditor, those people may identify the whistleblower and pass on the information disclosed to ASIC, the Australian Prudential Regulatory Authority (APRA) or a member of the Australian Federal Police (AFP), or with the whistleblower’s consent, other persons.

Similar whistleblower protections to those set out in the Corporations Act are contained in the statutes below. These are available if the disclosures concern misconduct or an improper state of affairs or circumstances affecting the institutions supervised by APRA — Authorised Deposit-taking Institutions (ADIs), insurers and superannuation entities. (a) the Banking Act 1959 (Cth); (b) the Insurance Act 1973 (Cth); (c) the Life Insurance Act 1995 (Cth); and (d) the Superannuation Industry (Supervision) Act 1993 (Cth).

Under the Banking Act for instance, a person may qualify for protections if the disclosure: (a) relates to misconduct, or an improper state of affairs or circumstances in relation to the ADI; and (b) the whistleblower considers that the information may assist the recipient of the disclosure to perform his or her functions or duties.

The disclosure is authorised if it is made to ASIC, APRA, AFP or with the consent of the whistleblower.

Similar requirements are set out for insurers and superannuation entities in the Life Insurance Act 1995, the Insurance Act 1973 and the Superannuation Industry (Supervision) Act 1993 respectively, with some minor differences to reflect the roles of the actuary for insurers and superannuation entities as well as the role of the trustee of the superannuation entity.

In addition, a number of APRA’s Prudential Standards include requirements for ADIs to maintain adequate processes for dealing with disclosures from whistleblowers.

Accordingly, the comments or observations made in this paper about the Corporations Act whistleblower provisions could just as readily be made about the whistleblower provisions under the above-named statutes. Given the overlapping responsibilities of ASIC and APRA for corporate entities, albeit with differing regulatory mandates, submitters should give consideration in responding to this paper whether there is a case for reforming each of these whistleblower provisions at the same time as any amendments that may be made to the Corporations Act, to ensure consistency of regulation and that whistleblowers across the financial system have the same protections and obligations in making disclosures.

Protections for public sector employees or appointees are provided under the Public Interest Disclosure Act 2013 (AUS-PIDA), which seeks to promote integrity and accountability of the Commonwealth public sector by: (a) encouraging and facilitating the disclosure of information by public officials (‘public interest disclosure’) about suspected wrongdoing within an Australian Government Agency, or by a public official, or a Commonwealth contracted service provider. Wrongdoing may including contravention of a law, corruption, maladministration, abuse of public trust, deception in respect of scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment, abuse of position, or grounds for disciplinary action; (b) ensuring that public officials who make public interest disclosures are supported and protected from adverse consequences; and (c) ensuring that public interest disclosures by public officials are properly investigated and dealt with.

The disclosure can be made by a person that is either a current or former ‘public official’ if the person believes on reasonable grounds there is wrongdoing, defined as ‘disclosable conduct’. Public official includes public servants, Defence Force members, statutory office holders and service providers under a Commonwealth contract.

The emphasis of the scheme is on disclosures of wrongdoing being reported to, and investigated within, government. This emphasis is designed to ensure that problems are identified and rectified quickly. Where an official does not wish to make a disclosure to their own agency, the disclosure can be made to the Commonwealth Ombudsman or the Inspector-General of Intelligence and Security. Officials can make disclosures to people outside government (other than a foreign public official) where certain criteria are met. However, a disclosure must first be reported internally to government except in the case of disclosures in an ‘emergency’ or to a ‘legal practitioner’ to obtain legal advice.

Qualifying disclosures entitle public sector whistleblowers to protection from exposure of their identities , and immunity from civil, criminal and administrative liabilities for making the disclosure . The Act also gives protections to public officials from victimisation and discrimination as a result of making a public interest disclosure. A whistleblower can also seek a range of civil remedies through a court including an apology, injunction, reinstatement order, compensation for loss or damage, and costs.

Metadata

Blink and you've missed it, in one of those strategically-timed consultations. The Attorney-General’s Department is inviting submissions to support a review by the Minister for Communications and the Attorney-General into access to telecommunications data in civil proceedings.

The A-G's site states

The Parliamentary Joint Committee on Intelligence and Security Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, recommended that civil litigants be prohibited from being able to access telecommunications data held by a service provider solely for the purpose of complying with the mandatory data retention regime. 

The committee considered that as the data retention regime was established specifically for law enforcement and national security purposes, as a general principle it would be inappropriate for data retained under the scheme to be drawn on as a new source of evidence in civil proceedings. 

However, the committee also indicated that it was aware of the potential for unintended consequences resulting from a prohibition on courts authorising access to data retained under the scheme and recommended that the Minister for Communications and the Attorney-General review this measure. 

Consequently, section 280 of the Telecommunications Act 1997 was amended such that data retained solely for the purposes of the data retention scheme cannot be used for civil proceedings. That prohibition commences on 13 April 2017. The provision includes a regulation making power to enable appropriate exceptions to be made.

The brief paper released as part of the invitation states

In essence, the legislation is designed to preserve the longstanding power of courts to order access to relevant telecommunications data in civil proceedings while limiting access to data that has been retained solely for the purposes of the data retention scheme. The Committee’s recommendation to include a regulation-making power, which the Government accepted, is designed to mitigate the risk that restricting parties to civil proceedings’ access to such data could adversely impact the effective operation of the civil justice system, or the rights or interests of parties to civil proceedings. 

The Department of Communications and the Arts and the Attorney-General’s Department are seeking the views of stakeholders with an interest in the civil justice system and privacy to support the Minister for Communications and the Attorney-General in their review of the prohibition and regulation-making power. In particular, the departments are interested in views about the following questions:

1. In what circumstances do parties to civil proceedings currently request access to telecommunications data in the data set outlined in section 187AA of the TIA Act (refer to Attachment A [below])? 

2. What, if any, impact would there be on civil proceedings if parties were unable to access the telecommunications data set as outlined in section 187AA of the TIA Act? 

3. Are there particular kinds of civil proceedings or circumstances in which the prohibition in section 280(1B) of the Telecommunications Act 1997 should not apply?

The Attachment reads

Topic  1 The subscriber of, and accounts, services, telecommunications devices and other relevant services relating to, the relevant service

Description of information for Topic 1 The following: (a) any information that is one or both of the following: (i) any name or address information; (ii) any other information for identification purposes; relating to the relevant service, being information used by the service provider for the purposes of identifying the subscriber of the relevant service; (b) any information relating to any contract, agreement or arrangement relating to the relevant service, or to any related account, service or device; (c) any information that is one or both of the following: (i) billing or payment information; (ii) contact information; relating to the relevant service, being information used by the service provider in relation to the relevant service; (d) any identifiers relating to the relevant service or any related account, service or device, being information used by the service provider in relation to the relevant service or any related account, service or device; (e) the status of the relevant service, or any related account, service or device. 

Topic 2 The source of a communication

Description of information for Topic 2 Identifiers of a related account, service or device from which the communication has been sent by means of the relevant service.

Topic 3 The destination of a communication 

Description of information for Topic 3 Identifiers of the account, telecommunications device or relevant service to which the communication: (a) has been sent; or (b) has been forwarded, routed or transferred, or attempted to be forwarded, routed or transferred. 

Topic 4 The date, time and duration of a communication, or of its connection to a relevant service 

Description of information for Topic 4 The date and time (including the time zone) of the following relating to the communication (with sufficient accuracy to identify the communication): (a) the start of the communication; (b) the end of the communication; (c) the connection to the relevant service; (d) the disconnection from the relevant service.  

Topic 5 The type of a communication or of a relevant service used in connection with a communication 

Description of information for Topic 5 The following: (a) the type of communication; Examples: Voice, SMS, email, chat, forum, social media. (b) the type of the relevant service; Examples: ADSL, Wi-Fi, VoIP, cable, GPRS, VoLTE, LTE. (c) the features of the relevant service that were, or would have been, used by or enabled for the communication. Examples: Call waiting, call forwarding, data volume usage. Note: This item will only apply to the service provider operating the relevant service: see paragraph 187A(4)(c). 

Topic 6 The location of equipment, or a line, used in connection with a communication 

Description of information for Topic 6 The following in relation to the equipment or line used to send or receive the communication: (a) the location of the equipment or line at the start of the communication; (b) the location of the equipment or line at the end of the communication. Examples: Cell towers, Wi-Fi hotspots.

Pharma Data and Patents

In discussing patents today's Productivity Commission report on Intellectual Property Arrangements comments

Pharmaceuticals — a better policy prescription 

The pharmaceutical sector relies on IP protection more than most, since many pharmaceutical advances require large upfront investment in research and development and are easy to copy. In addition to the standard suite of IP protections, the pharmaceutical sector benefits from bespoke IP arrangements.

Extensions of term

Further to the 20 year term applying to all patents, pharmaceutical patents can qualify for an additional five years of protection. Extensions of term (EoT) are capped at an effective market life of 15 years. These bespoke arrangements were intended to attract pharmaceutical research and development investment to Australia and to improve incentives for innovation by providing an effective market life for pharmaceuticals more in line with other technologies.

However, Australia’s EoT scheme has had little effect on investment and innovation; Australia represents a meagre 0.3 per cent of global spending on pharmaceutical research and development. As pharmaceutical companies have acknowledged, the prospect of future returns in such a small market (accounting for only 2 per cent of global pharmaceutical revenues) provides little in the way of additional incentive. Moreover, the benefits sought from EoT arrangements have proven largely illusory, resulting in a costly policy placebo. Poor targeting means that more than half of new chemical entities approved for sale in Australia enjoy an extension in patent term, and consumers and governments face higher prices for medicines.

Rather than compensating firms for being slow to introduce drugs to the Australian market, extensions should only be allowed where the actions of the regulator result in an unreasonable delay. Timeframes (of around one year) set by Government for the Therapeutic Goods Administration (TGA) provide a ready benchmark for determining what constitutes a reasonable processing period. EoT should only be granted where the time taken by the regulator exceeds this period. The Commission estimates that this approach would lower the cost of pharmaceuticals in Australia and save consumers and taxpayers more than $250 million per year.

Sharing rather than protecting data

The confidential data submitted in support of regulatory approval processes are also protected for a period of five years. During this period, manufacturers of generic pharmaceuticals must independently prove that their products are safe and effective, even though they are chemically identical to already approved drugs.

Pharmaceutical companies have pressed the Australian Government to extend the duration of data protection. They view data protection as an insurance policy to guard against what they see as inadequate patent protection. Most recently, negotiations for the Trans Pacific Partnership Agreement saw (unsuccessful) calls to extend data protection for biologics from 5 to 12 years.

Despite decade long claims of inadequate patent protection, there is little evidence of a problem. Even if isolated cases were verified as genuine, extending protection to a broad class of products to address exceptional cases would represent a blunt and costly response. And using data protection as a proxy for patent protection has drawbacks. Beyond the obvious absence of disclosure of information to promote further innovation, data protection lacks other important balances that apply to patents. Data protection arises automatically and cannot be challenged in court.

As well as there being strong grounds for resisting further calls to extend the period of data protection, there is a case for making data more widely available. At present, not only are follow on manufacturers prevented from relying on clinical data for a period of five years, the data is kept confidential indefinitely. Allowing researchers access to this data could provide substantial public health benefits. But doing so unilaterally would have some downsides. Companies may respond by delaying the release of medicines in the Australian market. Accordingly, any moves to publish the relevant data need to be internationally coordinated.

Reducing the scope for strategic behaviour

The ability of companies to leverage their IP rights to forestall entry by generics — effectively extending the term of exclusivity — can have a significant negative impact on consumers and (through the Pharmaceutical Benefits Scheme (PBS)) on taxpayers. Firms can use a variety of strategies to further extend the commercial life of their products including (so called) evergreening and pay for delay.

Evergreening refers to the strategy of obtaining multiple patents that cover different aspects of the same product, typically on improved versions of existing products. Some of these patents relate to genuine improvements that increase consumer wellbeing, such as significantly reducing side effects of certain medications. However, some ‘improvements’ may involve a slightly different chemical combination or process of production, which show no appreciable difference to the user. An additional benefit of changing the inventive step is it would reduce the scope for the latter type of behaviour — by granting new patents only for genuinely inventive products.

Pay for delay refers to the practice whereby patent holders pay generic manufacturers, as part of a settlement for a patent infringement case, to keep their products off the market beyond the scope of a patent. Delays of this kind limit competition by restricting the number of products on the market and any subsequent price reductions, including those triggered under the PBS.

In contrast to the US and Europe, which have arrangements to detect suspect agreements, Australia has taken a ‘see no evil’ approach to pay for delay settlements. A transparent reporting and monitoring system should be put in place to detect pay for delay settlements. This would require reporting to the Australian Competition and Consumer Commission (ACCC) settlement arrangements between originator and follower pharmaceutical companies that affect the timing of market entry for a generic version of a product into the Australian market. To minimise compliance and transition costs, monitoring arrangements should be based on those employed by the US Federal Trade Commission.

Steely resolve in IP Reform?

The Productivity Commission's report on Intellectual Property Arrangements features the following unsurprising points 'key points' -

• Australia’s intellectual property (IP) arrangements fall short in many ways and improvement is needed across the spectrum of IP rights. 

• IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:

− foster creative endeavour and investment in IP that would not otherwise occur 

− only provide the incentive needed to induce that additional investment or endeavour 

− resist impeding follow–on innovation, competition and access to goods and services. 

• Australia’s patent system grants exclusivity too readily, allowing a proliferation of low quality patents, frustrating follow–on innovators and stymieing competition.

− To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees. 

• Copyright is broader in scope and longer in duration than needed 

— innovative firms, universities and schools, and consumers bear the cost. 

− Introducing a system of user rights, including the (well-established) principles–based fair use exception, would go some way to redress this imbalance. 

• Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:

− clarifying the law on geoblocking  

− repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books. 

• Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed. 

• While Australia’s enforcement system works relatively well, reform is needed to improve access, especially for small– and medium–sized enterprises. 

− Introducing (and resourcing) a specialist IP list within the Federal Circuit Court (akin to the UK model) would provide a timely and low cost option for resolving IP disputes. 

• The absence of an overarching objective, policy framework and reform champion has contributed to Australia losing its way on IP policy. 

− Better governance arrangements are needed for a more coherent and balanced approach to IP policy development and implementation. 

• International commitments substantially constrain Australia’s IP policy flexibility. 

− The Australian Government should focus its international IP engagement on reducing transaction costs for parties using IP rights in multiple jurisdictions and encouraging more balanced policy arrangements for patents and copyright. 

− An overdue review of TRIPS by the WTO would be a helpful first step. 

• Reform efforts have more often than not succumbed to misinformation and scare campaigns. Steely resolve will be needed to pursue better balanced IP arrangements.

The Commission offers the following recommendations and findings -

An analytical framework for assessing the IP system 

Recommendation 2.1 In formulating intellectual property policy, the Australian Government should be informed by a robust evidence base and be guided by the principles of: 

• effectiveness, which balances providing protection to encourage additional innovation (which would not have otherwise occurred) and allowing ideas to be disseminated widely • efficiency, which balances returns to innovators and to the wider community • adaptability, which balances providing policy certainty and having a system that is agile in response to change • accountability, which balances the cost of collecting and analysing policy–relevant information against the benefits of having transparent and evidence–based policy that considers community wellbeing. 

Copyright term and scope 

Finding 4.1 The scope and term of copyright protection in Australia has expanded over time, often with no transparent evidence-based analysis, and is now skewed too far in favour of copyright holders. While a single optimal copyright term is arguably elusive, it is likely to be considerably less than 70 years after death. 

Copyright use and licensing 

RECOMMENDATION 5.1 The Australian Government should amend the Copyright Act 1968 (Cth) to: • make unenforceable any part of an agreement restricting or preventing a use of copyright material that is permitted by a copyright exception • permit consumers to circumvent technological protection measures for legitimate uses of copyright material. 

Recommendation 5.2 The Australian Government should: • amend the Copyright Act 1968 (Cth) to make clear that it is not an infringement for consumers to circumvent geoblocking technology, as recommended in the House of Representatives Standing Committee on Infrastructure and Communications’ report At What Cost? IT pricing and the Australia tax • avoid any international agreements that would prevent or ban consumers from circumventing geoblocking technology. 

Recommendation 5.3 The Australian Government should proceed to repeal parallel import restrictions for books to take effect no later than the end of 2017. 

Recommendation 5.4 The Australian Government should strengthen the governance and transparency arrangements for collecting societies. In particular: • The Australian Competition and Consumer Commission should undertake a review of the current code, assessing its efficacy in balancing the interests of copyright collecting societies and licensees. • The review should consider whether the current voluntary code: represents best practice, contains sufficient monitoring and review mechanisms, and if the code should be mandatory for all collecting societies. 

Fair use or fair dealing — what is fair for Australia? 

Recommendation 6.1 The Australian Government should accept and implement the Australian Law Reform Commission’s final recommendations regarding a fair use exception in Australia. 

Recommendation 6.2 The Australian Government should enact the Australian Law Reform Commission recommendations to limit liability for the use of orphan works, where a user has undertaken a diligent search to locate the relevant rights holder. 

The patent system — getting the fundamentals right 

Recommendation 7.1 The Australian Government should incorporate an objects clause into the Patents Act 1990 (Cth). The objects clause should describe the purpose of the legislation as enhancing the wellbeing of Australians by promoting technological innovation and the transfer and dissemination of technology. In so doing, the patent system should balance over time the interests of producers, owners and users of technology. 

Finding 7.1 The Raising the Bar initiative moved the inventive step and other elements of patent law in the right direction by raising the threshold for granting a patent. There is a strong case, however, for further raising the threshold. 

Recommendation 7.2 The Australian Government should amend ss. 7(2) and 7(3) of the Patents Act 1990 (Cth) such that an invention is taken to involve an inventive step if, having regard to the prior art base, it is not obvious to a person skilled in the relevant art. The Explanatory Memorandum should state: • a ‘scintilla’ of invention, or a scenario where the skilled person would not ‘directly be led as a matter of course’, are insufficient thresholds for meeting the inventive step • the ‘obvious to try’ test applied in Europe would in some instances be a suitable test. IP Australia should update the Australian Patent Office Manual of Practice and Procedure such that it will consider the technical features of an invention for the purpose of the inventive step and novelty tests. 

Recommendation 7.3 IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims. 

Recommendation 7.4 The Australian Government and IP Australia should set patent fees to promote broader intellectual property policy objectives, rather than the current primary objective of achieving cost recovery. To this end, the Australian Government, with input from IP Australia, should: • restructure patent renewal fees such that they rise each year at an increasing rate (including years in which patents receive an extension of term) — fees later in the life of a patent would well exceed current levels • reduce the initial threshold for claim fees, and increase claim fees for applications with a large number of claims. 

The innovation patent system 

Recommendation 8.1 The Australian Government should abolish the innovation patent system. Chapter 9: Business method patents and software patents 

Finding 9.1 Raising the inventive step, requiring technical features in patent claims, and the inclusion of an objects clause would better balance the patent rights of software innovators and users. 

Pharmaceuticals - getting the right policy prescription 

Recommendation 10.1 The Australian Government should reform extensions of patent term for pharmaceuticals such that they are only: (i) available for patents covering an active pharmaceutical ingredient, and (ii) calculated based on the time taken by the Therapeutic Goods Administration for regulatory approval over and above 255 working days (one year). The Australian Government should reform s. 76A of the Patents Act 1990 (Cth) to improve data collection requirements for extensions of term, drawing on the model applied in Canada. Thereafter no extensions of term should be granted until data is received in a satisfactory form. 

Finding 10.1 There are no grounds to extend the period of data protection for any pharmaceutical products, including biologics. 

Recommendation 10.2 The Australian Government should introduce a system for transparent reporting and monitoring of settlements between originator and generic pharmaceutical companies to detect potential pay for delay agreements. This system should be based on the model used in the United States, administered by the Australian Competition and Consumer Commission, and include guidelines on the approach to monitoring as part of the broader guidance on the application of the Competition and Consumer Act 2010 (Cth) to intellectual property (recommendation 15.1). The monitoring should operate for a period of five years. Following this period, the Australian Government should review the regulation of pay for delay agreements (and other potentially anticompetitive arrangements specific to the pharmaceutical sector). 

Registered designs 

Finding 11.1 The Australian Government has committed to implement many of the recommendations made by the Advisory Council on Intellectual Property in its recent review of Australia’s designs system. These measures will help address participant concerns about the cost of acquiring registered design rights, and the lack of understanding of design law. Recommendation 19.2 provides for a low-cost avenue for IP enforcement currently sought by designers. 

Trade marks and geographical indications 

Recommendation 12.1 The Australian Government should amend the Trade Marks Act 1995 (Cth) to:

• reduce the grace period from 5 years to 3 years before new registrations can be challenged for non use 

• remove the presumption of registrability in assessing whether a mark could be misleading or confusing at application • ensure that parallel imports of marked goods do not infringe an Australian registered trade mark when the marked good has been brought to market elsewhere by the owner of the mark or its licensee. Section 97A of the Trade Marks Act 2002 (New Zealand) could serve as a model clause in this regard.

IP Australia should:

• require those seeking trade mark protection to state whether they are using the mark or ‘intending to use’ the mark at application, registration and renewal, and record this on the Australian Trade Mark On line Search System (ATMOSS). It should also seek confirmation from trade mark holders that register with an ‘intent to use’ that their mark is actually in use following the grace period, with this information also recorded on the ATMOSS 

• require the Trade Marks Office to return to its previous practice of routinely challenging trade mark applications that contain contemporary geographical references (under s. 43 of the Trade Marks Act) • in conjunction with the Australian Securities and Investment Commission, link the ATMOSS database with the business registration portal, including to ensure a warning if a business registration may infringe an existing trade mark. 

Recommendation 12.2 The Australian Government should amend the Australian Grape and Wine Authority Act 2013 (Cth) and associated regulations to allow the Geographical Indications (GIs) Committee to amend or omit existing GIs in a manner similar to existing arrangements for the determination of a GI (including preserving the avenues of appeal to the Administrative Appeals Tribunal). Any omissions or amendments to GIs determined in such a manner should only take effect after a ‘grace period’ determined by the GI Committee on a case by case basis. 

Plant Breeder’s Rights 

Recommendation 13.1 The Australian Government should proceed to implement the Advisory Council on Intellectual Property’s 2010 recommendation to amend the Plant Breeder’s Rights Act 1994 (Cth) to enable essentially derived variety (EDV) declarations to be made in respect of any variety. 

Circuit layout rights 

Finding 14.1 Dedicated intellectual property protection for circuit layouts is not ideal and seldom used, but given Australia’s international commitment to protect circuit layouts and no superior alternatives, the best policy option is to maintain the status quo. 

Intellectual property rights and competition law 

Recommendation 15.1 The Australian Government should repeal s. 51(3) of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) at the same time as giving effect to recommendations of the (Harper) Competition Policy Review on the per se prohibitions. The Australian Competition and Consumer Commission should issue guidance on the application of part IV of the Competition and Consumer Act to intellectual property. 

IP and public institutions 

RECOMMENDATION 16.1 The Australian, and State and Territory governments should implement an open access policy for publicly funded research. The policy should provide free and open access arrangements for all publications funded by governments, directly or through university funding, within 12 months of publication. The policy should minimise exemptions. The Australian Government should seek to establish the same policy for international agencies to which it is a contributory funder, but which still charge for their publications, such as the Organisation for Economic Cooperation and Development. 

Finding 16.1 The adoption of an additional ‘use it or lose it’ provision for patents owned by publicly funded organisations is not warranted. 

Intellectual property’s institutional arrangements 

Recommendation 17.1 The Australian Government should promote a coherent and integrated approach to IP policy by: • establishing and maintaining greater IP policy expertise in the Department of Industry, Innovation and Science • ensuring the allocation of functions to IP Australia has regard to conflicts arising from IP Australia’s role as IP rights administrator and involvement in policy development and advice • establishing a standing (interdepartmental) IP Policy Group and formal working arrangements to ensure agencies work together within the policy framework outlined in this report. The Group would comprise those departments with responsibility for industrial and creative IP rights, the Treasury, and others as needed, including IP Australia. 

Finding 17.1 Australia’s approach to negotiating IP provisions in international treaties could be improved through greater use of independent impact assessment and more meaningful stakeholder consultation. 

Recommendation 17.2 The Australian Government should charge the interdepartmental IP Policy Group (recommendation 17.1) and the Department of Foreign Affairs and Trade with the task of developing guidance for IP provisions in international treaties. This guidance should incorporate the following principles: • avoiding the inclusion of IP provisions in bilateral and regional trade agreements and leaving negotiations on IP standards to multilateral fora • protecting flexibility to achieve policy goals, such as by reserving the right to draft exceptions and limitations • explicitly considering the long term consequences for the public interest and the domestic IP system in cases where IP demands of other countries are accepted in exchange for obtaining other benefits • identifying no go areas that are likely to be seldom or never in Australia’s interests, such as retrospective extensions of IP rights • conducting negotiations, as far as their nature makes it possible, in an open and transparent manner and ensuring that rights holders and industry groups do not enjoy preferential treatment over other stakeholders. 

International cooperation in IP 

Recommendation 18.1 The Australian Government should: • pursue international collaborative efforts to streamline IP administrative and licensing processes separately from efforts to align standards of IP protection. In so doing, it should consider a range of cooperative mechanisms, such as mutual recognition • use multilateral forums when seeking to align standards of protection. 

Recommendation 18.2 The Australian Government should play a more active role in international forums on intellectual property policy — areas to pursue include: • calling for a review of the TRIPS Agreement (under Article 71.1) by the WTO • exploring opportunities to further raise the threshold for inventive step for patents • pursuing the steps needed to explicitly allow the manufacture for export of pharmaceuticals in their patent extension period • working towards a system of eventual publication of clinical trial data for pharmaceuticals in exchange for statutory data protection • identifying and progressing reforms that would strike a better balance in respect of copyright scope and term. 

Compliance and enforcement of IP rights 

Recommendation 19.1 The Australian Government should expand the safe harbour scheme to cover not just carriage service providers, but all providers of online services. 

Finding 19.1 Timely and competitively priced access to copyright-protected works is the most efficient and effective way to reduce online copyright infringement. 

Recommendation 19.2 The Australian Government should introduce a specialist IP list in the Federal Circuit Court, encompassing features similar to those of the United Kingdom Intellectual Property Enterprise Court, including limiting trials to two days, caps on costs and damages, and a small claims procedure. The jurisdiction of the Federal Circuit Court should be expanded so it can hear all IP matters. This would complement current reforms by the Federal Court for management of IP cases within the National Court Framework, which are likely to benefit parties involved in high value IP disputes. The Federal Circuit Court should be adequately resourced to ensure that any increase in its workload arising from these reforms does not result in longer resolution times. The Australian Government should assess the costs and benefits of these reforms five years after implementation, also taking into account the progress of the Federal Court’s proposed reforms to IP case management.

Decisions

The NSW Law Reform Commission's Decision-making models question paper (Question Paper 2) as part of its Review of the Guardianship Act 1987 features the following questions -

A formal supported decision-making framework for NSW?

Question 5.1: Formal supported decision-making

(1) Should NSW have a formal supported decision-making model?

(2) If there were to be a formal supported decision-making model, how can we ensure there was an appropriate balance between formal and informal arrangements?

(3) If there were not to be a formal supported decision-making model, are there any ways we could better recognise or promote informal supported decision-making arrangements in NSW law?

Question 5.2: Key features of a formal supported decision-making model

(1) Should NSW have formal supporters?

(2) If so, should NSW permit personal or tribunal appointments, or both?

(3) Should NSW have formal co-decision-makers?

(4) If so, should NSW permit personal or tribunal appointments, or both?

(5) What arrangements should be made for the registration of appointments?

Question 5.3: Retaining substitute decision-making as an option

(1) If a formal supported decision-making framework was adopted, should substitute decision-making still be available as an option?

(2) If so, in what situations should substitute decision-making be available?

(3) Should the legislation specify what factors the court or tribunal should consider before appointing a substitute decision-maker and, if so, what should those factors be?

Question 5.4: Other issues

Are there any other issues about alternative decision-making models you would like to raise?

Supporters and co-decision-makers

Question 6.1: When supporters and co-decision-makers can be appointed

(1) What requirements should be met before a person needing support can appoint a supporter or co-decision-maker?

(2) What requirements should be met before a court or tribunal can appoint a supporter or co-decision-maker?

Question 6.2: Eligibility criteria for supporters and co-decision-makers

What, if any, eligibility criteria should potential supporters and co-decision-makers be required to meet?

Question 6.3: Characteristics that should exclude potential appointees

What, if any, characteristics should exclude particular people from being supporters or co-decision-makers?

Question 6.4: Number of supporters and co-decision-makers What limits, if any, should there be on the number of supporters or co-decision-makers that can be appointed?

Question 6.5: Public agencies as supporters or co-decision-makers

(1) What are the advantages and disadvantages of allowing public agencies to be appointed as supporters or co-decision-makers?

(2) In what circumstances should public agencies be able to act as supporters or co-decision-makers?

Question 6.6: Paid workers and organisations as supporters and co-decision-makers

(1) What are the advantages and disadvantages of allowing paid care workers to be appointed as either supporters or co-decision-makers?

(2) In what circumstances should paid care workers be appointed as supporters or co-decision-makers?

(3) What are the advantages and disadvantages of allowing professional organisations to be appointed as either supporters or co-decision-makers?

(4) In what circumstances should professional organisations be appointed as supporters or decision-makers?

Question 6.7: Volunteers as supporters and co-decision-makers

(1) What could be the advantages and disadvantages of appointing community volunteers as supporters?

(2) What could be the advantages and disadvantages of appointing community volunteers as co-decision-makers?

(3) In what circumstances do you think community volunteers should be appointed as supporters or co-decision-makers?

Question 6.8: Powers and functions of supporters

(1) What powers and functions should the law specify for formal supporters?

(2) What powers or functions should the law specifically exclude for formal supporters?

Question 6.9: Powers and functions of co-decision-makers

(1) What powers and functions should the law specify for formal co-decision-makers?

(2) What powers and functions should the law specifically exclude for formal co-decision-makers?  

Question 6.10: Duties and responsibilities of supporters and co-decision-makers

(1) What duties and responsibilities should the law specify for formal supporters?

(2) What duties and responsibilities should the law specify for formal co-decision-makers?

(3) What duties and responsibilities should the law specifically exclude for formal supporters and formal co-decision-makers?