National Data Strategy

The Australian Data Strategy document released today - for consultation until mid-2022 - is characterised as complementing the Digital Economy Strategy and the Digital Government Strategy. 

It is a iteration of a long succession of grand strategy documents that were marketed as enabling but typically obfuscated failures, disregarded civil society concerns and expired amid interdepartmental rivalries and ministerial revolving doors. Fortunately we appear to have moved on from the (unsurprisingly) foiled ambitions of a succession of bodies such as the unlamented National Office of the Information Economy (NOIE), Australian Government Information Office (AGIMO) and the Digital Transformation Agency (DTA).

The Strategy states that 

Data is a valuable national asset that, when leveraged effectively, can bring transformative benefits to its users and to individuals and the economy more broadly. The Australian Government proved this in its response to the initial COVID-19 outbreak, when it leveraged private and public data to respond to the health and economic effects of the virus. The private sector also has a long history of using data to benefit its clients through better and more tailored services and offerings. Enshrining the effective, safe, ethical and secure use of data as an important foundational tool for businesses, individuals, the non-government and government sectors in an Australian Data Strategy will help to support the Government’s vision to become a modern data-driven society by 2030. 

We are not a modern society? Not data-driven? 

The Australian Data Strategy signposts the Australian Government’s data intent and efforts over the period to 2025. It focuses on three key themes:

• maximising the value of data – describes why data is important, its economic and social value, its use in responding to priority issues, and the benefit that can be gained through using and safely sharing data. Data can create new value when shared between different levels of government, and the private and non-government sectors. 

• trust and protection – describes the settings that can be adopted in the private and public sectors to keep data safe and secure, and the frameworks available to protect Australians’ data and ensure its ethical use through the entire data lifecycle. 

• enabling data use – sets out approaches and requirements to leverage the value of data, such as capabilities, legislation, management and integration of data, and engaging internationally. 

The document considers both public sector data, which is managed by the government, and data in the broader economy, where the Australian Government both enables data users and regulates its use and sharing to provide greater certainty in how people deal with their data. 

The Australian Data Strategy is supported by a living Action Plan which sets out tangible measures the Government is implementing to improve our data settings across the economy. The Action Plan will be regularly reviewed to ensure it evolves to meet the changing priorities of Australians; and continuously raises the bar to meet our goal of being a leading digital economy and society by 2030.  

While the Data Strategy and Action Plan do not introduce new regulations or legislation, they align with a range of existing legislation, strategies, policies, and reviews which regulate data. These include the Privacy Act 1988 (and its review, currently underway) and the Freedom of Information Act 1982; the Data Availability and Transparency Bill 2020 (the DAT Bill); the 2015 Public Data Policy Statement; the Digital Economy Strategy; the Cyber Security Strategy; the Productivity Commission’s 2017 Inquiry into Data Availability and Use; the Consumer Data Right; and many others.

Something there for everyone, particularly if you don't ask the hard questions. 

The Data Strategy brings together these diverse elements for the first time, setting out current and forward data settings. It signals the Australian Government’s intent to use data to bring tangible benefits to the Australian people and enable data as the lifeblood of our digital economy, including through the Government engaging with the private sector to secure economic and social data for limited approved uses. 

Finally, the Australian Government acknowledges this Strategy is the beginning of a conversation rather than its conclusion. We welcome your submissions in response to this Strategy which will inform our future data activities. We will close responses to the Australian Data Strategy by the end of June 2022. 

Our vision 

Australia’s first Data Strategy sets our vision to create a national ecosystem of data that is accessible, reliable and relevant and easily used to power our national endeavour and become a modern data-driven society by 2030. The Data Strategy seeks to maximise data’s value, protect it to build trust and enable its use. We will do this by creating a data system that will help businesses determine where opportunities are, and provide new products and services; supporting governments at all levels, as well as non-government organisations, to determine where policies and services will achieve the greatest amount of public good; and helping Australians in their personal lives as they determine what services and products they want to consume. 

By 2025, we will create a mature and well-positioned data system in Australia that will deliver benefits for all Australians. Businesses will be encouraged to make better use of the data they receive and generate to complete transactions, tailor services and deliver new products. 

The Government will make more publicly held data available, creating easy, intuitive access to Australian Government open data, data inventories, data sharing agreements and data visualisation tools. We will develop the infrastructure needed to enable the better use of government data, underpinning new data assets using data shared between the Commonwealth and states and territories, and drive better sharing of and certainty about data. And we will underpin these by creating a modern data system through investment in enhancing data maturity, skills and capability within the APS, and implementing the trust frameworks proposed under the Data Availability and Transparency Scheme. 

We will ensure data measures in the Action Plan are regularly updated to align with this vision, and in 2025, we will conduct a full review of our achievements gained through safely sharing and using data. 

the policy landscape 

The Australian Data Strategy exists as one of the highest-level whole-of-government policies in an ecosystem of other strategies, plans, policies and frameworks in the data and digital sector. These different policies ensure that we have the right settings in related fields, including an overarching vision to 2030 through the Digital Economy Strategy; keeping Australians safe through the Australian Cyber Security Strategy 2020; and showing our steps to becoming a top three digital government in the world through the Digital Government Strategy (see Figure 1). Many of these other policies are referred to in this Strategy. 

Maximising the value of data 

We recognise the need to improve economy-wide data use and re-use, delivering outcomes for individuals and businesses, and helping governments to deliver more effectively. We are:

+ Explaining the benefits data can bring to consumers, businesses, researchers and the Government, and how the data generated and used by different sectors can support others. 

+ Breaking down unnecessary barriers and simplify data use and sharing, enabling people, organisations and governments to get more value out of data. 

+ Recognising the importance of data throughout its entire lifecycle, and describing how data can be useful to different people.

Trust and protection 

We describe how the Government keeps data safe and secure We also use and manage data in appropriate ways. We are:

+ Improving understanding of cyber threats, both within and outside the public sector. 

+ Hosting data securely as we move toward the cloud, through the Australian Government hosting certification framework and protective security policy framework. 

+ Progressing reforms to strengthen privacy protections online, including in new technologies like AI. 

+ Keeping data safe, while having a plan in place to act quickly and effectively to respond to data breaches. 

+ Using data in ways consistent with public expectations.

Enabling data use 

Our intent is to enable greater use of data by investing in data infrastructure, management, skills and capability. We will be:

+ Integrating data where it can help inform policy development, programs, and service delivery, or business and consumer outcomes. 

+ Building data skills and capability, investing in education and training pathways for a modern Australian workforce that can support a data-driven economy. 

+ Managing data well to reduce unnecessary regulations, improve data quality and build organisational data maturity within the Government. 

+ Engaging overseas to adopt modern data standards and participating in initiatives to develop a common language when dealing with data.

Putting aside skepticism about the rhetoric, how will the grand vision be given effect? 

'Our vision will be achieved through actions that build on existing policies and activities', with an Action Plan covering

• Making data available 

• Setting the guardrails for a modern data economy 

• Creating the infrastructure we need 

• Building a modern data system.

Those elements are glossed as follows 

Making data available 

• Progress work to build a new ‘front door’ to guide Australians and businesses towards the right data to suit their needs. 

• Implement the DAT Scheme to facilitate data sharing and build trust and confidence. 

Setting the guardrails for a modern data economy

• Ensure we have protections for robust and modern cyber security and privacy settings. 

• Give Australians better visibility and control of their data through the Consumer Data Right.

Creating the infrastructure we need

• Develop the data assets we need, like the National Disability Data Asset. 

• Enable greater portability and certainty about data by expanding domestic and cross-border data flows and by exploring ownership and property rights for data.

Building a modern data system

• Build data expertise and capability across the APS workforce through the Data Professional Stream. 

• Build the right tools and systems for government data maturity, implement processes, and apply standards to make better use of data across all levels of government.

DTC

'Commercial DNA tests and police investigations: a broad bioethical perspective' by Nina F de Groot, Britta C van Beers and Gerben Meynen in (2021) 47(12) Journal of Medical Ethics comments 

Over 30 million people worldwide have taken a commercial at-home DNA test, because they were interested in their genetic ancestry, disease predisposition or inherited traits. Yet, these consumer DNA data are also increasingly used for a very different purpose: to identify suspects in criminal investigations. By matching a suspect’s DNA with DNA from a suspect’s distant relatives who have taken a commercial at-home DNA test, law enforcement can zero in on a perpetrator. Such forensic use of consumer DNA data has been performed in over 200 criminal investigations. However, this practice of so-called investigative genetic genealogy (IGG) raises ethical concerns. In this paper, we aim to broaden the bioethical analysis on IGG by showing the limitations of an individual-based model. We discuss two concerns central in the debate: privacy and informed consent. However, we argue that IGG raises pressing ethical concerns that extend beyond these individual-focused issues. The very nature of the genetic information entails that relatives may also be affected by the individual customer’s choices. In this respect, we explore to what extent the ethical approach in the biomedical genetic context on consent and consequences for relatives can be helpful for the debate on IGG. We argue that an individual-based model has significant limitations in an IGG context. The ethical debate is further complicated by the international, transgenerational and commercial nature of IGG. We conclude that IGG should not only be approached as an individual but also—and perhaps primarily—as a collective issue. 

The authors state 

 In 1988, a newborn boy, wrapped in blankets, was left under a tree in a Connecticut parking lot. He later died of the frigid temperatures outside. Police did not succeed in finding who had left the infant there. More than three decades later, in 2020, police knocked on the door of a woman who they had identified as the mother of the child. The woman admitted that she had left the boy there after hiding her pregnancy and delivery from friends and family. 

The unusual breakthrough in this very old case came as a result of comparing the DNA profile of the infant with DNA data of people who had taken a genetic test with a commercial company and uploaded it into the genealogical website GEDmatch. Through corporations such as Ancestry.com, 23andMe and MyHeritage, customers hope to find information about their ancestry, distant relatives or risks for certain diseases. The genetic testing kits are even popular Christmas gifts. Already around 30 million people have taken a direct-to-consumer (DTC) genetic ancestry test. 

These DTC genetic databases are, thus, not only interesting for people wanting to find out about their distant relatives or their genetic risk for ‘coriander taste aversion’ but could also be helpful to law enforcement to identify a suspect. Such a search takes place by uploading a genetic profile from a suspect, found at the crime scene, in either the genealogical website GEDmatch or the DTC company FamilyTreeDNA to search for distant relatives. Through this distant relative, an expert genealogist examines the intersections between the family trees of the relative and the crime scene DNA. The group of individuals identified can then be narrowed down by using information such as the age and gender of the suspect, or where this person was living at the time of the crime until one can eventually zero in on a single individual or a number of siblings. Depending on how complex and distant found relations are, finding a suspect can take less than 2 hours but may also take up to 6 months (as was the case in a Canadian search for a murder suspect). 

In the past few years, this investigative genetic genealogy (IGG) has been used in over 200 law enforcement investigations in the USA. It can be used not only to identify perpetrators but also to identify crime victims or unidentified human remains. One of the most high-profile cases is the conviction of the Golden State Killer, a serial rapist and killer who committed his crimes in the 1970s and 1980s. There is an increasing interest in IGG also outside the USA. In 2020, IGG was performed in a Swedish crime investigation, which led to the arrest and confession of a double-murder suspect. This was probably the first time in Europe that IGG led to an arrest. Earlier, also in Sweden, investigators had found investigative leads to help identify human remains of an unknown individual by using GEDmatch. In the Netherlands, a pilot is currently being set up with this method to identify unidentified human remains of people whose death is not caused by a crime. In July 2020, it was revealed that in the Philippines, IGG had been used to successfully track down several men, most likely sex tourists, who had fathered children with local women during their visit to the region, and that IGG will possibly also be used to identify aid workers who sexually abuse minors. In October 2020, police forces in Canada revealed for the first time that IGG had helped them to solve a 1984 murder cold case. 

The potential impact of such forensic use of DTC databases for crime investigations is enormous. For example, it has been estimated that a genetic database consisting of only 2% of all US citizens of European descent will be able to find a third-degree cousin in more than 99% of all US persons of that ethnicity. As the DNA of millions of people is in these databases, the chance of finding a distant relative will possibly become almost certain. If an increasing amount of these DNA data would be accessible for law enforcement, it can have major implications for criminal investigations. Although currently, most consumers of DTC companies are US citizens, the kits are also increasingly popular in other countries around the world. Therefore, it is likely that IGG will become more and more effective in identifying suspects outside of the USA. For example, a UK study was able to identify 4 out of 10 anonymous volunteers by uploading their genealogical DNA profile to GEDmatch. 

Since 2018, in the aftermath of the Golden State Killer arrest, IGG has received attention in the academic debate as well, especially from genetic genealogy and/or legal perspectives, that often also cover ethical concerns. Regulation of IGG, at the moment, is largely absent and several authors have called or made suggestions for regulatory oversight for IGG. Although there have been interesting discussions on ethical aspects of IGG, including justice, public safety, risk for false positives, privacy and consent, a more systematic analysis from a bioethical perspective has not been performed. A recent extensive review study on IGG recommends that for proper regulation, much more research by bioethicists, among others, on the ethical issues is needed. 

In this paper, we aim to contribute to the bioethical analysis on IGG by analysing the limitations of an individual customer-based approach to IGG. The paper runs as follows. First, we discuss two central ethical concerns regarding IGG that may be considered autonomy related: privacy and informed consent. Second, we argue that IGG raises pressing ethical concerns that extend beyond these concepts. In that process, we explore to what extent the ethical approach in the medical clinical genetics context can be helpful for the debate on IGG. We argue that an individual-based model has significant limitations in an IGG context. The debate is further complicated by the transgenerational, transnational, and commercial nature of IGG. We conclude that IGG should be approached not only as an individual but also—and perhaps even more so—as a collective issue.

ARC and ERA

Acting Minister Robert's letter to the ARC will not surprise many observers of the Government's anxieties about cultural marxism, a supposed tsunami of books on Jane Austen and academics busy working in areas that do not generate patents. 

(Confession: I teach patent law, presumably of some utility, but am not a patent holder and despite my love for the very astute Jane am more likely to refer to John Austin and John Langshaw Austin in tutorials. No cultural marxism here!) 

The letter includes the following -

the Australian Government has outlined a number of policy directions that rely on the research undertaken by universities, with the support of the ARC. I am writing to outline my expectations of you, as Chief Executive Officer (CEO) of the ARC, across a number of key areas relevant to those directions. 

The Government values the important role played by university research in the creation of new knowledge, new social and economic opportunities for our citizens, and a platform for our engagement in the intellectual and practical challenges facing the world. Successive Australian governments have made a sustained and significant investment in high-quality research within our university sector, which has contributed to the international success and recognition of our research sector. 

To increase research and end-user engagement, harness the benefits of publicly funded research and drive economic growth and recovery over coming years, we must take action now to strengthen the translation pipeline for Australian research. This includes encouraging greater collaboration with industry to stimulate more research and development (R&D) activity across our economy. The ARC and its programs are central to these goals. 

Accordingly, this Letter of Expectation identifies four key areas which I ask you to prioritise for immediate implementation, so that reforms can be in place before the end of 2022. 

These areas are: supporting national priorities strengthening the National Interest Test (NIT) fast-tracking implementation of recommendations from the review of the Excellence of the Research for Australia (ERA) and the Engagement and Impact (El) assessments enhanced organisational governance. 

These reforms will support the Government's policy ambition to drive impact from our public investment in university research and to develop a stronger system of national R&D. 

Supporting national priorities 

International experience demonstrates that a focus on national priorities and a vision for the future potential of our nation are critical building blocks in harnessing the benefits of publicly funded research. To this end, I ask the ARC to ensure its research funding schemes align clearly and tangibly to those areas of Government priority for economic development. In the balance of research allocations recommended by the ARC, I ask that future recommendations put to me under s.52 of the Australian Research Council Act 2001 (ARC Act) are to support approval under the Linkage Program of a minimum of 40 per cent by value of all grant funding decisions for the period of the determination. 

The National Manufacturing Priorities (NMP), in particular, reflect a considered process of assessing the potential for future economic development in Australia to drive the initiatives and targets that should be supported across all relevant Government priorities. The NMP should take primary focus in the prioritisation of research investments, with no less than 70 per cent of the recommended Linkage Program grants to be aligned with those priorities in future rounds. I note that other Government policies may also support prioritisation of the remaining Linkage Program allocations in specific cases, such as the Low Emissions Technology Statement, the National Agricultural Innovation Priorities and the Defence Science and Technology Strategy 2030. 

By clearly specifying priorities from the outset of the grant consideration process, researchers and their sponsoring universities can ensure that the best research capabilities and the highest quality applications can be focused on the key areas of national need. It is my belief this approach will strengthen the quality of Australia's research endeavour. 

The Government remains committed to the development of new knowledge through investigator led research funding opportunities, the so-called 'blue-sky' research in which Australia's universities excel. As such, I am not seeking an alignment of Discovery grants program with specific national priorities. 

However, I ask that you develop clear guidance for researchers so that they use simple and easy-to-understand language to identify in their applications the potential gains and practical outcomes from their proposed research and its likely contribution to the national interest. 

This information should support the capacity to report on the proportion of applications for grants and successful projects relevant to the NMPs and other national priorities. 

Strengthening the NIT 

I ask that the assessment process and recommendations for funding made to me demonstrate a clear public interest from the significant public investment in university research. 

This statement of public value will make the research more accessible to potential end-users and build support for continuing that investment. 

In consultation with the research and end-user community, as well as the Department of Education, Skills and Employment, I ask the ARC to prioritise the extension and enhancement of the NIT to increase its transparency in the ARC grants process. As part of this work, I ask the ARC to bring forward a proposal to enhance and expand the role of the industry and other end-user experts in assessing the NIT of high-quality projects, prior to recommendation to me as the responsible Minister. 

Given the importance of inter-disciplinary research in addressing the science, technology, humanities, and societal issues that underpin the national priorities described above, I ask that you also consider the need for reviewers in the College of Experts from a broader range of backgrounds and ensure reviewers are supported by appropriate training to assess these types of grant applications. 

To support these outcomes, I ask that you review the operation of the College of Experts and brief me on options for expanding the pool of people who participate in the College to include experts from backgrounds beyond universities, in particular those from industry and other end-user groups. This may require redesigning the grants assessment process to manage the demand on such people in a manner consistent with the roles against which they provide their expertise, such as through the assessment of impact or research questions that cut across discipline areas. 

Fast-tracking implementation of ERA review 

I have noted the outcomes of the review of the ERA and the EI assessments (the Review), and the proposed refinements to these arrangements set out in the Review recommendations. I ask that the ARC expedites implementation of further work stemming from that Review, including fast-tracking development of more efficient and robust assessments of the quality and impact of Australian research. 

My expectation is that this should include clear measures to identify industry engagement and the translation of research to impact. I note that the Review identified many measures related to industry and end-user engagement as having a declining relevance to the assessment of quality in ERA. Accordingly, I ask the ARC and the Department to jointly develop robust quantitative metrics that are more explicitly focused on the impact of research for the next EI assessment in 2024. The end result will be a set of metrics that recognises outcomes like patents, IP and commercial agreements and will have less emphasis on case studies to measure research impact. 

To be effective, the performance information generated by the ERA and EI assessments must drive the quest for excellence. In advance of the next ERA, I ask the ARC to convene the expert working group proposed by the Review to develop a revised ERA rating scale. 

The new scale should embed an approach that sets the 'world standard' benchmark against those nations and universities that are at the forefront ofresearch. The new scale should provide a comparator that will set a rising standard over time. While acknowledging the complexity of the assessment process, I expect that the results will be underpinned by a benchmarking structure that is clear in its ambition and provides granular and meaningful reporting of the level of achievement across different universities. 

Enhanced organisational governance 

To support my reform ambition, I ask that you provide advice on the re-establishment of a designated committee under the ARC Act to support you in your role as CEO. The creation of such a committee is in line with the governance arrangements of similar bodies such as the National Health and Medical Research Council. The committee should build on the expertise of the existing Advisory Committee by bringing additional external anp end-user perspectives to the governance of the Council and its programs in order to reflect the Government's current priorities. I envisage a proactive agenda for the committee supporting you to align the ARC strategic agenda with Government priorities, improve governance and drive innovation in the development of high-quality research funding programs and research impact assessment. 

In recognition of the independence of ARC, the CEO will continue to provide recommendations and advice directly to me. To assist the CEO to undertake this role, I propose the committee, operating with an independent Chair, should support and provide recommendations to the CEO on the strategic agenda of the organisation. The committee should have a broad membership with substantial industry, research end-user and governance representation, with Terms of Reference (ToRs) that support ongoing reform of ARC operations and a focus on driving impact from publicly funded research in Australia's universities. I ask that you provide me with advice before the end of the year on the committee's establishment, including membership and ToRs, for my approval. 

In order to provide a clear and strong message to stakeholders with an interest in university research I ask that the committee, as one of its first actions, work with the ARC to develop a three-year ARC Strategy. This Strategy will set out the ARC's alignment with the Government's priorities and set out a forward-looking agenda. The agenda will demonstrate the ways in which the ARC will develop and drive Australia's research agenda, in line with the best practice of comparable and high performing international research agencies, over the next three to five years.

And just in case the ARC hasn't got the message 

More broadly, I look forward to a regular and ongoing dialogue with you to keep me and my office informed of important issues relating to the work, health and culture of the organisation, including through regular meetings and prior notice of significant announcements and events. The ARC and the Department should work closely together to scope and develop activities that respond to this Statement of Expectation.

Consumer Protection

'Improving the effectiveness of the consumer guarantee and supplier indemnification provisions under the Australian Consumer Law', a Regulatory Impact Statement (RIS) released today by the Treasury Department on behalf of Consumer Senior Officials (formerly Consumer Affairs Australia and New Zealand (CAANZ)), reflects recognition of 'ongoing difficulties for consumers seeking remedies for goods that fail to meet the consumer guarantees'. 

Ministers requested a regulatory impact assessment be undertaken regarding

• options to ensure businesses comply with the consumer guarantees and consumers can access the remedies to which they are entitled. This includes consideration of a proposed civil prohibition for failure to provide a consumer guarantees remedy and 

• options to prohibit manufacturers from failing to indemnify suppliers and prohibit retribution by manufacturers against suppliers who seek indemnification. 

Ministers agreed to consider the costs and benefits of applying those options in two ways:  across all sectors of the economy and to new motor vehicles only. 

 The document states 

A Consultation RIS presumes there may be scope for the Government to take action to address identified problems. The purpose of this Consultation RIS, therefore, is to canvass the regulatory options under consideration, to determine the relative costs and benefits of those options. The costs and benefits of each option set out in this Consultation RIS are assessed individually. In assessing the potential costs and benefits of each option, this Consultation RIS includes indicative costings. This analysis is provided to inform the consultation process and to help compare the possible net benefit to the economy of each option in quantitative terms. However, costs and benefits will fall unevenly across suppliers, manufacturers, and consumers. The assumptions used to calculate the indicative cost benefit analysis are at Appendix A – Assumptions. Feedback received through consultation on this Consultation RIS will help to refine this analysis and inform the Decision RIS. 

 Key questions in the document are -

Part A: Receiving remedies 

1. Please provide any relevant information or data you have to help estimate the extent to which consumers are unable to access consumer guarantee remedies when entitled? 

2. Do you have any information on consumers claiming refunds for new motor vehicles? If so, please provide details on how long after purchase refunds are requested, and the prevalence of such requests. 

3. Do you have any information or data to support the view consumers are ‘gaming’ the system to obtain replacement new motor vehicles or refunds? 

4. Do you consider it appropriate for factors such as a depreciation deduction (a reduction in the value of a refund for usage) to be considered relevant in determining a refund amount? In what circumstances do you consider this would be appropriate? How would a reduction work? How should post-purchase increases in value be factored in? Please detail reasons for your position. 

5. For new motor dealer representatives, please provide any relevant information or data on how providing remedies has impacted your business. 

6. Are there any other benefits associated with maintaining the status quo? 

7. If the status quo was maintained, what other potential costs could there be to industry, consumers and businesses? 

8. What do you consider would be an appropriate maximum penalty for a supplier or manufacturer failing to provide a remedy for a failure to comply with a consumer guarantee when required under the ACL? Please detail reasons for your position. 

9. What do you consider would be an appropriate infringement notice amount for an alleged contravention of a requirement to provide a remedy for a failure to comply with a consumer guarantee? Please detail reasons for your position. 

10. What would be the most effective way of implementing a civil prohibition for a failure to provide a consumer guarantee remedy? Should the circumstances in which a penalty applies be limited in any way?   

For consumers: 

11. Have you experienced issues with a trader not agreeing to provide your requested remedy for a major failure? If yes, please provide details. For example, what were the circumstances, including the types of goods or services involved, the nature of the problems experienced with the goods or services, and how the trader dealt with your issue? 

12. If you have experienced issues where a trader has offered to repair, rather than refund or replace a good with a major failure: a. What direct financial costs did you incur during the period the good was being repaired (for example, visiting the retailer, taking the matter to a court or tribunal, or hiring a replacement for the good)? b. How much time did you spend dropping off the good for repair, collecting the repaired good and/or negotiating with the trader? c. Have you had different experiences with lower value goods (for example, toaster, kettle) than with higher value goods (for example, a white good or motor vehicles)? 

For businesses: 

13. Are there any unintended consequences, risks or challenges that need to be considered with creating such civil prohibitions? 

For everyone: 

14. Do you think introducing a civil prohibition would deter businesses from failing to provide the applicable consumer guarantee remedy to consumers who are entitled to one? 

15. Please provide any relevant information or data on whether non-compliance with the consumer guarantees is a significant problem in the new motor vehicle sector compared to other sectors?   

Part B: Supplier indemnification 

Suppliers:

16.  to what extent are you able to enforce your indemnification rights? 

17. What are the barriers to seeking indemnification? 

18. Has your business been subject to retribution when you have sought indemnification? If yes, what form did it take? 

19. Please provide any relevant information or data you have that quantifies the extent of manufacturers not indemnifying suppliers, or making it difficult for suppliers to obtain indemnification? 

20. Please provide any relevant information or data you have that quantifies the proportion of suppliers that do not seek indemnification? 

21. Please provide any relevant information or data you have that quantifies the proportion of consumer claims that suppliers refuse or do not consider due to the inability or difficulty in obtaining indemnification, or due to fear of retribution? 

For suppliers:  

22. Have you sought indemnification from manufacturers under the existing law? If not, please provide details. 

23. Have you experienced difficulties getting indemnified from manufacturers? If so, please provide details. 

24. Would your inclination to seek an indemnification change if a civil prohibition was introduced? 

25. Would your approach to providing consumer guarantee remedies to consumers change if a civil prohibition was introduced? If so, how? 

For manufacturers: 

26. How (if at all) would a civil prohibition change your response to requests for indemnification? 

27. What other issues might a civil prohibition create? 

For retailers: 

28. Have you experienced retribution from a manufacturer after seeking indemnification? If so, please provide details. 

29. Would your inclination to seek indemnification change if a civil prohibition on retaliation was introduced? 

30. Would your approach to providing consumer guarantees remedies to consumers change if a civil prohibition on retribution was introduced? If so, how? 

For manufacturers: 

31. How (if at all) would a civil prohibition on retribution change your response to requests for indemnification? 

For everyone: 

32. If a civil prohibition was created to address manufacturer retribution: a. what form should it take? (e.g. effective models in other laws) b. should presumptive tests apply? If so, what presumptions should be included? 

33. What penalties or sanctions should be available to deter or compensate for retribution?

ID Crime Statistics

Ahead of my Identity Crime monograph out next year I note the 'Identity crime and misuse in Australia: Results of the 2021 online survey' (Australian Institute of Criminology Statistical Bulletin 37, 2021) by Merran McAlister and Christie Franks. 

That Bulletin states 

 Identity crime is common in Australia and internationally, affecting millions of individuals, businesses and government agencies annually. Identity crime exploits vulnerabilities in personal identification credentials, consumer payment systems and technological advances in computing and communications, generally for financial gain. The United Nations Economic and Social Council (2007: 18) defined identity crime as ‘crime which either targets identification documents, systems or data, or exploits them in the course of committing other crimes’. 

In 2018–19, the estimated direct and indirect cost of identity crime in Australia was $3.1b. In 2019 alone, the total losses reported by Australian Institute of Criminology (AIC) online survey respondents was $3.6m (Franks & Smith 2020). Identity crimes are also notoriously under-reported as a result of inhibiting factors such as victim blaming and the complexity of reporting (Franks & Smith 2020). The emotional, physiological and socio-economic impacts faced by victims are often overlooked but can be extreme and prolonged (Emami, Smith & Jorna 2019). 

Identity crime is often an enabler for other criminal activities that include credit card fraud; superannuation and other financial frauds against individuals; welfare, tax and other frauds against government agencies; money laundering and financing of organised crime; unauthorised access to sensitive information or facilities for unlawful purposes; and the concealment of activities such as drug trafficking or the production and distribution of child sexual abuse material. Misuse of identity has also been connected with human trafficking and the commission of terrorist acts (Australian Criminal Intelligence Commission 2017; Reichel & Randa 2018). I

The authors note 

The definition of identity crime and misuse of personal information used in the survey was: obtaining or using your personal information without your permission to pretend to be you or to carry out a business in your name without your permission, or other types of activities and transactions. This does not include use of your personal information for direct marketing, even if this was done without your permission. 

Personal information was defined as including:

• name, 

• address, 

• date of birth, 

• place of birth, 

• gender, 

• driver’s licence information, 

• passport information, 

• Medicare information, 

• biometric information (e.g. fingerprint), 

• signature, 

• bank account information, 

• credit or debit card information,  

• Personal Identification Number (PIN), 

• Tax File Number (TFN), 

• Shareholder Identification Number (HIN), 

• computer and/or other online usernames and passwords, 

• student identification number and various other types of personal information. 

In March 2021, an online survey comprising 40 questions was administered to a sample of 10,000 Australians by i-Link Research Solutions, a market research company. The survey asked respondents about their experiences of identity crime and misuse in their lifetime and during the 2020 calendar year. 

The survey asked respondents about the misuse of various types of personal information. This included (but was not limited to) misuse of an individual’s name, address, date of birth, place of birth, gender, driver licence information, passport information, Medicare information, biometric information (eg fingerprint), signature, bank account information, credit or debit card information, passwords, personal identification numbers (PINs), tax file numbers, shareholder identification numbers, computer or other online usernames and passwords, and student numbers. 

This bulletin presents data on the types of personal information misused, how respondents believed their personal information was obtained and how the crimes were detected. The survey also collected information about respondents’ views on whether the risk of identity crime would change over the next 12 months, the seriousness of identity crime, their use of and willingness to use biometric technologies as a security measure and, for victims, whether their behaviour had changed as a result of experiencing misuse of their personal information.

 The questions were developed by the AIC in consultation with the Department of Home Affairs, which has highlighted identity crime as part of the portfolio's broader identity, law enforcement and national security strategies highlighted elsewhere in this blog.

The Bulletin states 

Prevalence of identity crime 

Nineteen percent  of respondents reported they had experienced misuse of their personal information at some point in their lifetime and seven percent  reported experiencing misuse in 2020. This is a statistically significant decline from the 11 percent victimisation rate occurring in 2019.

So much for some recent alarms about a supposedly exponential ongoing increase in identity offences 

Forty-four percent of recent victims (n=326) reported that their personal information had been misused on one occasion, a decline from 48 percent in 2019. Twenty-four percent of respondents (n=178) reported that misuse of their personal information had occurred on two separate occasions. On average, recent victims reported their personal information had been misused on eight separate occasions (SD=59). 

Types of personal information misused 

Recent victims reported that between one and 23 different types of personal information had been misused. The 2021 survey introduced a question asking respondents about the misuse of mobile phones and email addresses, as the Australian Competition and Consumer Commission (ACCC) identified them as the top methods of obtaining personal information in 2019 (ACCC 2021b). In this survey, telephones/mobile phones and email addresses  were not the primary types of personal information misused but both ranked in the top eight. 

Forty-six percent of respondents reported misuse of their name, making this the most commonly misused type of personal information (see Table 1). This was not a statistically significant increase from 2019. Addresses and credit/debit cards were also commonly misused. 

The misuse of bank account information significantly declined between 2019 and 2020. 

How personal information was misused 

As in 2019, the most common reason personal information was misused was to obtain money from a bank (39% in 2019 and 41% in 2020; see Table 3). This was followed by misusing personal information to open a new bank account (19%) and to obtain superannuation monies (19%), illustrating the financial motivation for identity crimes. In 2020 the purpose for other misuses was to

• apply for a job 12.1% 

• apply for a loan or obtain credit 11.2%   

• open a mobile phone account 9.4% 

• apply for government benefits 9.0% 

• provide false information to police 8.5% 

• rent a property 4.6% 

• open an online account 2.6%

Notification 

55%  of recent victims were notified of the misuse of their personal information by a bank or financial institution, a significant increase from the 42% in 2019. There was no statistically significant difference between the proportion of respondents reporting they noticed suspicious transactions on bank statements or accounts in 2020 (33%) and in 2019 (31%). Other awareness was a result of

• receiving credit/payment cards in the mail not applied for 27.3% 

• receiving a bill from an unknown business or company  11.4% 

• lack of success in applying for credit  11.1% 

• notification by police  6.0% 

• contacted by debt collectors 5.4%

Behavioural change 

The victimisation resulted in individuals 

• changing passwords 32.7%

• greater care when using or sharing personal information 30.3% 

• reviewing financial statements more carefully 29.3% 

• changing banking details 24.1% 

• not trusting people as much 22.8% 

• using better security for computer and other computerised devices 20.3% 

• changing the social media account 14.9% 

• shred personal documents before disposing of them  14.6% 

• using biometric technologies more frequently 14.2% 

• changing email address(es)  14.1% 

• changing telephone number 13.2% (one instance where 2020 is up on 2019)

• locking a mailbox 12.1% 

•  using a registered post box  6.8%

• applying for a credit report  12.3% 

• ceasing all social media use 9.6 % (again up)

•  redirecting mail when away or moving residence 9.6% 

• signing up for a commercial identity theft alert/ protection service  9.2% 

• changing the place of residence 8.0% (up from 5%) 

• avoiding use of the internet for banking and purchasing goods and services  6.8% 

Assault

The Listen. Take action to prevent, believe and heal report by the ACT Sexual Assault Prevention and Response Steering Committee for the ACT Government features the following recommendations, to be implemented in phases across multiple sectors over an extended period of time. 

R 1 The ACT Government establish and appropriately resource an ongoing structured consultation program with victim survivors to continue to drive and inform change in the prevention of and response to sexual violence in the ACT. 

R 2 The ACT Government fund training to relevant government and community settings on the dynamics of sexual violence, responding to sexual violence disclosures, and sexual violence active bystander training. Training to be provided to:

● frontline workers in health, education, child protection, and housing ● primary health care and allied health professionals in collaboration with professional bodies ● culturally and linguistically diverse community and cultural leaders, drawing on culturally and linguistically diverse expertise ● targeted community organisations ● tertiary education settings ● other workplaces including staff in the relevant service sector. 

R 3 Integration, collaboration and case coordination between the response services must be immediately improved along with assistance to victim survivors to navigate the system.

a The response services should, at a minimum, be resourced to take immediate action to improve case coordination and collaboration when providing services to victim survivors. This should include reinstating the wraparound model with regular face-to-face meetings to coordinate addressing the needs of victim survivors, including children and young people, and to ensure provision of coordinated support whether or not the matter is, or is likely to be, proceeding through the criminal justice system. 

b The ACT Government should immediately scope and pilot new mechanisms to further improve system coordination from the point of disclosure onwards while also increasing the ease of system navigation for victim survivors. This should include the establishment of a Multi-Disciplinary Centre (MDC) where specialist sexual violence response services, including police, would be co-located and able to collaborate immediately and as intensively as required when addressing sexual violence cases (especially children’s cases, high risk and complex cases). It should also include the engagement of one or more Independent Sexual Violence Advisers who would support and assist victim survivors to navigate the system. There should be a specific service for Aboriginal and Torres Strait Islander women established to seek advice and support either separately or co-located with the MDC. Finally, a Centre for Healing should be established within the MDC to provide dedicated therapeutic pathways for victim survivors to recover and heal. 

R 4 The ACT Government undertake a specialist services review of all agencies and statutory bodies, funded either wholly or partly by ACT Government, that provide services related to sexual violence with a view to identifying current system strengths requiring further investment to address survivors’ needs, as well as changes needed in services’ operating practices, performance measures and standards, training, cultural capacities, structures, coordination systems and current funding arrangements, with a view to informing future investments in necessary system improvements to enable victim survivors to receive highly effective, timely support in an integrated way. 

R 5 The ACT Government, ACT Policing and non-government service providers take action to improve the cultural competency of workers and the cultural responsiveness of specialist services in relation to Aboriginal and Torres Strait Islander people. 

R 6 The ACT Government establish a service to provide mentoring and training to the current and next generation of Aboriginal and Torres Strait Islander workers currently employed or hoping to be employed in the specialist response service sector. 

R 7 The ACT Government:

a resource ACT Policing Sexual Assault and Child Abuse Team (SACAT), Child at Risk Health Unit (CAHRU) and Child and Youth Protective Services (CYPS) to initially conduct a feasibility study of how joint investigations of child sexual abuse could be carried out in the ACT and thereafter implement a (minimum) 12-month pilot of joint investigations of child sexual abuse based on learnings from the NSW Joint Child Protection Response Program (‘JCPRP’, previously referred to as JIRT). 

b review of the role and mandate of the Liaison Officers from other directorates, such a Police and Canberra Health Services that are located within CYPS. 

R 8 The ACT Government fund specialist children’s services to provide additional training on effectively responding to children who have experienced sexual abuse and to increase collaboration and integrated responses across the system responding to child sexual abuse. 

R 9 The ACT Government consult with ACT Courts for the purposes of undertaking a review and investigation of the NSW specialist court program to hear the matters of adults, children and young people who have experienced sexual violence. 

R 10 The ACT Government commission a Sexual Violence Data Collection Framework and embed a requirement for compliance with this framework in service funding agreements. 

R 11 The ACT Government research and consider measures to improve victim survivors’ experiences of the criminal justice process and ensure they are acknowledged and recognised throughout the process. 

R 12 Justice agencies (Department of Public Prosecution, Police, Corrections and Courts) review their internal procedures with a view to ensuring that they comply with their obligations to victim survivors pursuant to the Victims of Crime Act 1994 (ACT). 

R 13 The ACT Government research and pilot additional mechanisms to hold perpetrators to account including by: a expanding restorative justice processes for victim survivors b alternative civi ljustice regimes.

R 14 The ACT Government consider development of a Ministerial Direction to ACT Policing to focus specifically on the priority of effectively responding to sexual violence against children and adults as a strategic crime type, and that this be reflected in the Australian Federal Police (AFP) Corporate Plan. Whether or not the proposed direction is made, ACT Policing should:

a review its communications strategy to ensure all relevant information to victim survivors is provided in a more accessible, responsive and streamlined way. 

b support SACAT to conduct a review of the current training framework for both specialist SACAT investigators and all other community-facing ACT Policing capabilities as they apply to sexual assault and child abuse investigations. 

c review its policies for recruitment of SACAT officers, to address the lack of diversity and particularly to allow a victim survivor’s right to elect the gender of the interviewing officer, by: i increasing the number of women employed in SACAT including women in senior positions ii employing Aboriginal and Torres Strait Islander officers to work in SACAT. 

d fund the design and delivery of externally provided specialist training to SACAT officers on an annual basis in relation to the conduct of effective Evidence in Chief (EIC) Interviews with vulnerable witnesses including children, young people, people with disabilities, Aboriginal and Torres Strait Islander people, and ensure that new officers to SACAT do not undertake EIC Interviews with vulnerable witnesses until they have undertaken the specialist training. 

e in conjunction with ACT Government, consider a 12-month pilot engaging forensic psychologists to advise on the preparation for and conduct of EIC Interviews with witnesses reporting sexual assault, adopting a suitable forensic investigative model compliant with ACT law and suitably tailored for the presenting witness. 

f immediately implement clear procedures to be followed when a decision is made not to charge. These procedures are to address:

i the requirement that a senior designated officer with oversight of the case must review and approve the decision not to charge 

ii written reasons to be recorded on the file setting out the basis of the decision and the victim survivor is notified of the decision not to charge and the reasons 

iii decisions not to charge are reviewable by a representative of the DPP upon the request of a victim survivor or their representative 

g collaborate with the DPP to provide training to all officers on an annual basis, addressing the legislative test to decide whether or not to charge 

h direct and support priority being given to examining forensic samples in sexual assault cases within a specific timeframe. 

R 15 The ACT Government establish and fund an independent cross-agency taskforce to undertake a review of all sexual assault cases reported to ACT Policing that were not progressed to charge, including those deemed unfounded, uncleared or withdrawn. The initial phase of the review to focus on reports made from 1 July 2020 to present. Subject to the outcomes of this initial phase, the review is to be extended to all reports made since 1 January 2015 that have not progressed to charge. Further any victim survivor whose matter has not progressed to charge outside of this stated review period may also request a review of their matter. 

R 16 That there be ongoing education of all stakeholders working in the criminal justice system, including the judiciary, lawyers, law enforcement personnel, and persons who work with victim survivors to understand and appreciate the nature and extent of sexual violence in society; misconceptions and myths about sexual violence including in relation to child related offences; the social context of sexual violence including modern sexual practices and communication methods surrounding sexual interactions among young people; grooming behaviours; and the ongoing effects of sexual violence on victim survivors, particularly regarding how this impacts their capacity to engage with criminal justice processes. 

R 17 The ACT Government, ACT Policing and non-government service providers undertake training that improves cultural competency and the ability of staff to deliver inclusive and respectful practices to diverse groups. This training should be designed and delivered in collaboration with representatives of the culturally and linguistically diverse community, the LGBTIQ+ community, the disability community and other relevant stakeholders. 

R 18 The ACT Courts should develop a Sexual Assault Bench Book. 

R 19 The ACT Government design, implement and fund a long-term 10-year strategy for the prevention of sexual violence. The strategy should aim to change the attitudes and behaviours that perpetuate sexual violence and implement tailored actions to reduce the risk and occurrence of sexual violence in all settings where ACT residents live, work and play. 

R 20 The ACT Government fund and make accessible evidence-based lifelong comprehensive relationships and sexuality education (RSE) to all members of the community. For RSE in the Aboriginal and Torres Strait Islander community it is recommended that RSE be co-designed and delivered in collaboration with the representatives of the Aboriginal and Torres Strait Islander community to ensure it is culturally-appropriate, respectful and safe within the community. 

R 21 The following workplace reforms are recommended:

a The ACT Government review enterprise bargaining agreements (EBAs) in the ACT Public Service (ACTPS) in consultation with affected trade unions to: i ensure workplaces can respond effectively to allegations of sexual harassment and assault, and ii to develop appropriate EBA clauses to give effect to the Respect@Work recommendations of the Australian Human Rights Commission, to the extent possible in the ACT context. 

b The ACT Government use legislative, policy and funding mechanisms to place a positive duty on organisations to prevent sexual harassment and sexual violence, including to add provisions to the Secure Local Jobs Code (SLJC) to require employers to institute policies which prevent sexual harassment and assault in the workplace. 

c WorkSafe ACT to adequately regulate the prevention of and responses to sexual harassment and sexual assault in ACT workplaces. 

R 22 The ACT Government should amend the law in relation to consent by establishing an affirmative communicative model of consent. This reform to the law should be accompanied by community education measures. 

R 23 The ACT Government review and reform the laws and procedures set out in detail in Appendix 6 of this report. 

R 24 The ACT Government:

a make an annual ministerial statement to the Legislative Assembly to report on these reforms. 

b create (or combine) a single role in the ACT Government for the coordination of reforms at the level of Coordinator-General to ensure a sufficient level of responsibility and power to hold all directorates to account for reforms 

c establish a Community Reference Group with a focus on policy advice to government and monitoring the performance of government and the community sector in the implementation of the recommendations.

The Steering Committee notes that ACT Government should establish mechanisms within government to coordinate reform and work with the community and justice agencies to ensure oversight of implementation and ongoing expert input into policy and service design. During this process, additional or revised recommendations may be made. 

 This report is only the start of an evolving process. The phased implementation of the recommendations in this report includes identifying where the immediate priorities lie—the first step.  

 

High Rollers, Blank Cheques and Gambling Woes

In Wong v Star Entertainment Qld Limited [2021] QCA 277 McMurdo JA states 

 The appellant, Dr Wong, is a resident of Singapore. In 2018, he travelled to the Gold Coast, where he stayed and gambled at the respondent’s casino. He attended the casino as a participant in what is called, under part 8, division 2 of the Casino Control Act 1982 (Qld), a special junket agreement. 

[3] Dr Wong held an account with the respondent (Star) from which he could purchase gaming chips. He requested from Star a cheque cashing facility, to allow him to cash cheques with Star to the extent of $40 million. Star agreed to provide the facility, on terms which were recorded in a written agreement (the facility agreement). A few days later, the limit of this facility was increased, by agreement, to $50 million. Dr Wong provided two cheques drawn in Singapore dollars on a Singapore branch of the Oversea-Chinese Banking Corporation, Limited, amounting to the equivalent of $50 million, and that amount was credited to his account with Star. By a week or so later, he had lost most of that sum, such that on Star’s case, he then owed Star $43,209,853.34. 

[4] A year earlier, Dr Wong had travelled to Australia and gambled at a casino in Sydney which was operated by a company related to Star. On that trip, he had provided a blank cheque, signed by him but left undated and blank as to the payee and the amount. By a term of the facility agreement made with Star in 2018, it was agreed that if Dr Wong provided “a replacement cheque” to Star with the amount and date incomplete, Star was authorised to complete that cheque in an amount equal to what was outstanding under the facility agreement and to date the cheque. In reliance upon that provision, Star dated and completed the cheque, by inserting the amount of SGD45,145,654.64 and the date of 7 September 2018, and its name as the payee. Star deposited the cheque for payment into its account with the National Australia Bank. By this time, Dr Wong had taken action which resulted in the cheque being dishonoured. 

[5] In this proceeding, commenced in 2020, Star claims $43,209,853.22 as damages for breach of the facility agreement, or alternatively, as damages pursuant to s 76 of the Cheques Act 1986 (Cth). Dr Wong applied to have the proceeding summarily dismissed, or permanently stayed, upon several grounds, including that the proceeding was an abuse of process, because it was the third proceeding brought against him by Star upon the same causes of action. In the judgment under appeal, Bradley J dismissed Dr Wong’s application. 

The other proceedings between the parties 

[6] On 30 January 2019, Star filed a claim and statement of claim in the Trial Division which claimed the same amount as is claimed in the present case. The same causes of actions were pleaded, together with a further case that Dr Wong had falsely represented that the cheque would be met on presentation. 

[7] On 1 February 2019, Star commenced a proceeding against Dr Wong in the High Court of Singapore, claiming the same amount and on the same bases. 

[8] Dr Wong responded to each of those proceedings on 27 February 2019. He filed a conditional notice of intention to defend the Queensland proceeding, disputing the jurisdiction of the Court to entertain Star’s claim without his consent, and contending that the proceeding was irregular because the claim and statement of claim had not been properly served, and that the proceeding was an abuse of the Court’s process because, at the same time, Star had commenced the Singapore proceeding. Dr Wong filed a defence in the Singapore proceeding, contesting the merits of the claim. 

[9] On 12 March 2019, Star discontinued the Queensland proceeding. 

[10] On 24 April 2019, Star applied for summary judgment in the Singapore proceeding. Before that application was heard, on 17 May 2019 Dr Wong amended his defence to plead that the action was not maintainable by reason of s 5(2) of the Civil Law Act (Cap 43, 1999 Rev Ed) of Singapore, which provides as follows: “No action shall be brought or maintained in the court for recovering any sum of money or valuable thing alleged to be won upon any wager or which has been deposited in the hands of any person to abide the event on which any wager has been made.” He also filed a cross-application seeking orders that Star’s claim be struck out on the basis that it disclosed no cause of action, or alternatively was a scandalous, frivolous or vexatious claim and an abuse of process, by reason of s 5(2). 

[11] On 22 August 2019, a judge of the Singapore International Commercial Court struck out the claim, for the reason that it could not succeed consistently with s 5(2), and it could thereby be characterised as vexatious and an abuse of the process of that court. It was held, applying a decision of the Singapore Court of Appeal, that s 5(2) was a procedural provision which fell to be applied by Singapore courts as part of the law of the forum. There was no consideration of the merits of Star’s claim. 

[12] From this summary, it can be seen that Star did commence simultaneous actions against Dr Wong, claiming effectively the same relief. That remained the position for about six weeks before the Queensland proceeding was discontinued, when it had gone no further than the service, or purported service, of the claim and statement of claim, and the conditional notice of intention to defend filed by Dr Wong. Notably, the Queensland proceeding was discontinued about two weeks after Dr Wong filed his original defence in the Singapore proceeding, which did not include the plea in reliance upon s 5(2) of the Singapore statute. 

[13] In neither of these earlier cases was there any consideration of the merits. In each, Dr Wong resisted Star’s case being heard on the merits. 

Steps in the present proceeding 

[14] Star commenced the present proceeding on 19 February 2020. 

[15] On 17 August 2020, Dr Wong filed a conditional notice of intention to defend, again disputing the Court’s jurisdiction and contending that the proceeding had not been properly served and that it was an abuse of process. 

[16] On 31 August 2020, Dr Wong applied, under Uniform Civil Procedure Rules r 127(2)(c), for dismissal of the proceeding, or alternatively for a stay, on the ground that the claim had insufficient prospects of success. As his case was argued before Bradley J, there were two bases for the orders which he sought. The first was that the prosecution of the proceeding was barred by a res judicata or cause of action estoppel, arising from the dismissal of the Singapore proceeding. The second was that this case was an abuse of the Court’s process. Each argument was rejected and it is only the second which is advanced in this appeal.