19 August 2017

Plant IP

The thoughtful 'Information Intellectual Property and the Global Information System for Plant Genetic Resources for Food and Agriculture' (Griffith University Law School Research Paper No. 17-21) by Charles Lawson comments 
The International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) establishes a mechanism for the accessing and sharing of some plant materials. An essential element of that accessing and sharing is information about the materials including information (and data) about the characterisation, regeneration and evaluation of the materials. A “Global Information System” (GLIS) will allow much of this information to be made available and shared. This article reviews the information obligations imposed by the Plant Treaty and its associated “Standard Material Transfer Agreement” on the collection and disclosures of information and other legal obligations that will likely shape the form and function of the GLIS. The article concludes that the GLIS will need to carefully distinguish between information that is freely available and information that is subject to legal restrictions.

Corrections

The NSW Audit Office report on Therapeutic Programs in Prisons states
When a prisoner enters custody in New South Wales, there is an expectation that they will be offered therapeutic programs that reduce their risk of reoffending. Relative to the costs of providing them, these programs have wide-ranging benefits for prisoners and the broader community, and provide significant savings to the justice system. Corrective Services NSW has lead responsibility for ensuring relevant and effective programs are provided, and for the Premier’s Priority of reducing reoffending by five per cent by 2019.
In New South Wales, a significant majority of people convicted of an offence will eventually be reconvicted. Of those convicted of an offence in 2004, 79 per cent had been reconvicted of another offence by 2014 – half within the first year of their initial offence. The total cost to the community of reoffending is difficult to fully quantify. However, the potential to reduce costs to the prisons system alone by reducing reoffending is significant given the average costs of a prison stay is $167 per prisoner per day over an average 218 day sentence. Total prison system costs in New South Wales were $720 million in 2016.
To help achieve its mandate to reduce reoffending, Corrective Services NSW delivers therapeutic programs in prison and the community, along with a range of vocational, education, supervision, case management and health and wellbeing general services. These programs and services contribute to the central goal of reducing the likelihood that prisoners will return to prison. This audit assessed whether selected therapeutic programs are available, accessible and effective in reducing the risk of reoffending. ...
Conclusion
Corrective Services NSW does not ensure that eligible prisoners receive timely programs to reduce the risk they will reoffend on release. Most prisoners who need programs do not receive one before their earliest release date. These prisoners can be released with no intervention or held in prison longer awaiting a program. Additionally, programs have not been systematically evaluated to confirm they are helping to reduce reoffending in NSW.
In 2015–16, 75 per cent of prisoners who needed programs reached their earliest release date without receiving one. These prisoners are often released with incomplete or no intervention in prison, or are refused parole and held in custody for longer than their minimum term. Corrective Services NSW prioritises prisoners for programs based on their risk of reoffending. However, the 20 per cent increase in the prison population between 2011–12 and 2015–16 has put a significant strain on program resources. While program staffing has increased by 20 per cent over the past two years, the overall proportion of prisoners receiving programs before release has not.
Since 2015, there has been increased roll out of moderate-intensity EQUIPS programs, which reach greater numbers of prisoners. However, over the same period, the number of programs to meet the higher-intensity therapeutic needs of sex offenders and serious violent offenders has decreased or remained the same despite increased numbers of prisoners entering custody that may benefit from them. Corrective Services NSW does not collect and act on information to ensure that coverage of specific program needs among sex offenders and serious violent offenders is sufficient given the increases in these prisoner types.
Corrective Services NSW bases its programs on international evidence and has worked in partnership with independent evaluators to evaluate some programs. However, these evaluations have mostly been inconclusive due to small sample sizes and data quality issues. Further evaluations are proposed, including as a result of an additional $237 million investment in reducing reoffending, which will also see the role out of additional programs and case management initiatives.
75 per cent of prisoners who needed programs did not complete them before the earliest date they could have been released for parole
In 2015–16, 75 per cent of prisoners with an identified program need did not complete a program prior to the earliest date they could have been paroled. If prisoners do not complete programs before their earliest parole date, they can be released having had no, or incomplete, interventions while in prison to address their offending. They can also be refused parole by the State Parole Authority, adding unnecessary length to the time spent in jail and exacerbating overcrowding. Parole refusal data from the State Parole Authority indicates that non-completion of programs was a factor in 84 per cent of 302 parole refusals in 2015.
Program resourcing at the prison level is inadequate to meet increased demand
Lack of availability of programs to meet demand is a key factor preventing prisoners from completing programs in time for release. The 20 per cent increase in the prison population between 2011–12 and 2015–16 has placed a significant strain on resources. While more programs are being delivered, the overall proportion of prisoners receiving them before release has not. Prisoner case management is not performed in a timely and consistent way, resulting in prisoners missing opportunities to be referred to programs, particularly if they have shorter sentences. For example, 27 per cent of prisoners with more than six months to serve had not completed an assessment required to determine eligibility for an EQUIPS program in the past four years.
The mix of available programs may be out of step with the needs of some prisoners
Since 2012, Corrective Services NSW has increased the number of moderate-intensity EQUIPS domestic violence and aggression programs provided and more prisoners overall are now able to participate in programs. Over the same period, the number of intensive programs delivered for sex offenders has decreased and the number of intensive programs for serious violent offenders has remained the same. This is despite increasing proportions of prisoners sentenced for sexual assault and related offences, and serious violent offences.
Corrective Services NSW uses a risk-assessment model to determine which prisoners are eligible for existing programs, but does not regularly review whether there are gaps or insufficient program coverage of some therapeutic needs.
Corrective Services NSW does not collect robust and comparable information on program quality and outcomes
Program performance reporting at the prison level focuses on program throughput, such as the number of programs delivered and the number of prisoners participating. Corrective Services NSW does not routinely collect information on program implementation that would provide insights at the prison level into whether programs are being run effectively, and are achieving their intended goals.
Corrective Services NSW has not systematically evaluated its therapeutic programs to confirm they are effective in reducing reoffending
Programs being delivered in New South Wales prisons are based on international evidence about the success of the specific methods and approaches used. This is a good foundation, but Corrective Services NSW is unable to show that its programs are effective in the New South Wales context, and that they are having an impact in achieving the Premier’s target of reducing reoffending by five per cent. Evaluations of some programs have been conducted, but these were mostly inconclusive because of challenges with data collection, such as developing significant enough sample sizes. A lack of consistent forward planning has also affected the rigour of some evaluations.
With the roll out of an additional $237 million investment in reducing reoffending, Corrective Services NSW proposes to focus efforts on evaluating the effectiveness of its programs by engaging external experts and increasing resourcing in its own evaluation unit. A systematic forward program for independent evaluation, which identifies solutions to existing data gaps and builds on past studies, is needed to support this.
Recommendations
Corrective Services NSW should by December 2017:
1. Implement a systematic approach to the use of convictions, sentencing and case management data to ensure that gaps in program offerings can be identified and addressed.
By June 2018:
2. Clearly establish program delivery staff resourcing benchmarks, based on individual prison profiles, that would meet demand and ensure prisoners receive timely assessments, comprehensive case management and relevant programs before the earliest date they can be released.
3. Establish consistent program quality and outcomes performance indicators at the prison-level, and monitor and respond to these quarterly.
4. Develop and implement a detailed forward program of independent evaluations for all prison-based therapeutic programs, that includes identified data requirements for prisons to collect and provide.

Published Editions

A perspective on Australia's published editions regimes is provided by Guillaume Laroche's 'Settling the Score: Copyright in Modern Editions of Public Domain Musical Works' in (2013) 26(1) Intellectual Property Journal 83.

Laroche comments
Modern sheet music publishers regularly assert copyright claims over their new editions of public domain compositions by long-deceased composers like Mozart and Chopin, yet the legal basis for these claims remains untested. This inquiry argues that most such claims are untenable, and outlines a doctrinal copyright analysis supporting this conclusion in Canadian law and jurisprudence. Following a brief overview of the sheet music publishing industry’s copyright practices and some recent challenges to its preferred status quo, two doctrinal approaches are tested using various editions of Frédéric Chopin’s “Raindrop Prelude”. First, an application of the doctrine of originality, as described in CCH v. Law Society of Upper Canada, reveals that editors’ original expression in most new editions of public domain compositions is difficult to discern. Although some editions meet the required standard, this finding nonetheless jeopardizes many publishers’ copyright claims. Second, the inquiry briefly investigates the nature of musical scores as works, concluding that, contrary to what publishers have sometimes argued, a proper application of the Copyright Act should classify them as musical works instead of artistic works. Finally, the findings of the court in the British case Sawkins v. Hyperion are applied to the Canadian context. The article concludes by discussing some of the policy implications of its findings, contrasting the benefits accruing to musicians with the potentially harmful decisions that some music publishers might make if the Canadian standard were adopted more widely.

18 August 2017

Balmain New Ferry

The delicious 'False Imprisonment, Fare Dodging and Federation — Mr Robertson’s Evening Out' by Mark Lunney in (2009) 31 Sydney Law Review 537 argues that
The decisions of the High Court and the Privy Council in Robertson v The Balmain New Ferry Company Ltd retain their place in modern tort texts discussing false imprisonment. This is surprising because the reasoning is frequently considered unclear at best or incorrect as worst. This article considers the case in two historical contexts to evaluate these views. The first context considers contemporary legal doctrine by exploring the significance of the pre-Judicature Act pleading rules applicable in New South Wales and the gap in the contemporary law that made the company’s method of enforcing fare collection problematic. Despite these impediments, the commercial pressures to uphold the system of fare collection proved sufficient to overcome these objections. The second, broader, historical context explores the reaction to the decision of the High Court as an aspect of lingering anti-federal sentiment in New South Wales. The analysis reveals a uniquely Australian context to the decision and reveals the potential of studies of the history of private law to contribute to the history of Australian law more generally. 
Lunney comments
The decision of the Privy Council in the case of Robinson v Balmain New Ferry Co Ltd remains a part of many tort courses and tort textbooks in common law countries. et the reason for including it tends to be to dismiss it as out of line with general principle, as non-representative rather than paradigmatic. It is explained away as an aberration, a task made easier by the eccentricity of its facts. Whilst for explanatory purposes this is a perfectly satisfactory way of dealing with the case as part of the modern law of tort, it leaves open a number of questions. First, if the case was considered contrary to general principle, why did the decisions of both the High Court of Australia and the Privy Council find comprehensively in favour of the ferry company? Analysis of contemporary legal doctrine suggests a lacuna in the law relating to the operation of the system of collecting fares adopted by the ferry company. The matter was of enormous importance to ferry companies: a result in favour of Robertson would have mandated significant change in ferry companies’ practices. The way that the legal lacuna was filled by both the High Court and the Privy Council avoided this commercially undesirable result — albeit with reasoning that gave short shrift to the pleading rules that operated in New South Wales — and ignored well-established limitations on the circumstances in which a person’s imprisonment could be justified. 
The emphasis that Robertson placed on pleading rules in his argument may reveal a subtler context. In the High Court and in the petition for leave to appeal to the Privy Council, Robertson stressed the importance of respecting the pleading rules of New South Wales. The concern that State law might be ignored by the federal High Court needs to be viewed in the context of a High Court that was barely three years old and a federation that had been formed less than a decade before. The reaction to the decision of the High Court demonstrates that anti-Federation sentiment had not simply gone away after 1901. Given the status of the plaintiff, Archibald Nugent Robertson, the decision of the High Court provided a suitable focus for some of that sentiment, in terms of specific criticism of the High Court, as well as for more general expressions of dissatisfaction with Federation. In short, the case demonstrates the potential significance of Australian legal history, in particular the history of private law, to explanations of wider historical trends in Australia, an area that deserves far greater attention than it has thus far received. ... 
This article has attempted to place the decision in Robinson v Balmain New Ferry Co Ltd in its historical context. That context is a complex amalgam with both an internal and an external dimension — a dimension that was understood and controlled by the lawyers and a dimension that went beyond the intricacies of pleading and doctrine. Whatever the merits of the competing legal arguments — and in many ways Robertson’s were stronger — the ferry company was not prepared to limit its case by reference to relatively narrow points of law. By the time the case reached the High Court, the commercial ramifications of a decision in Robertson’s favour were explicitly pointed out by the ferry company. The High Court and the Privy Council were not prepared to jeopardise the established system of fare collection; as the Balmain Observer put it, the ferry company’s rules had been endorsed by its victory. That the decision has proved to be of limited practical importance merely demonstrates its expediency: the commercial imperative of the ferry company could not generate a rule of general application. Viewing the case in its historical context may not change our views as to the result, but it does allow us to explore the interplay between the internal and external dimensions of legal reasoning. It demonstrates that these contexts were not mutually exclusive. As David Ibbetson has shown, the way a case is put by lawyers to the court is fundamental to how the case is decided, and this is evidenced by the varying ways the case was put to the courts by the ferry company’s lawyers. The ferry company was allowed to detain Robertson not just because he had entered into a contract but because the High Court was aware of the commercial consequences of a decision in his favour. This is not to deny the force of reasoning processes internal to law but merely suggests that in some cases, at least in the past, judges and courts did consider the consequences of their decisions, and in doing so, may have considered matters beyond legal doctrine. 
At a broader level, Robertson also shows the value of historical analysis of private law in Australia. The history of tort law in Australia after Federation remains to be written, and Robertson is a good example of the merits of such a project. It reveals an Australian court dealing with a case of first impression that forced it to make new law, a law which was in fact endorsed by the Privy Council. As Bruce Kercher notes, the observation that Australian courts merely copied the English common law ‘should be a commencing point of historical analysis, a hypothesis to explore, rather than a conclusion’. He notes that ‘[w]hen this history is written, we might well find that the High Court was less deferential to English law than we presently assume’. We may also find, as in Robertson, that there were peculiarly Australian contexts in which court decisions and legislation were made. It would be going far too far to think that the High Court justices in Robertson were out to get him, but Robertson does illustrate that decisions are not made in an historical vacuum and, at least to some degree, reflect contemporary historical and political currents. Viewed in this light, the reaction to Robertson represents a remnant of the defeated, but not extinguished, anti-Federation sentiment, a sentiment that at the time was not doomed to failure.
Whatever else this article has achieved, it is hoped that law students of the future may have cause to challenge Harold Luntz’s assessment of Robertson as ‘the arrogant barrister plaintiff’. Pompous he no doubt was, but as this article has demonstrated, he had good reason to think the law was on his side. Nor can one can doubt the sincerity of his belief in the virtue of his cause. We may not have liked him, but we should, perhaps, respect the actions of a man who, in a different era, might have been championed as a defender of civil liberties. 
This article would not be complete without an observation on another well-known aspect of the case — why the authorised report of the Privy Council decision refers to him as Robinson rather than Robertson. There is certainly no error in the Privy Council record, so the mistake must have been made at the printers. An educated guess is that the problem arose from the name ‘Nugent’, an uncommon name which Archibald Nugent Robertson shared with a reasonably well-known contemporary American writer, Nugent Robinson. The printer may well have inadvertently made the connection with Nugent Robinson, and this is what appears in the printed report. The result was, as Professor Tony Blackshield’s ditty on the case records, not only that Robertson lost, but, to add insult to injury, ‘[t]hey couldn’t even spell your name’.

Medicare Numbers Data Breach Inquiries

The national government has announced an Independent Review of health providers’ access to Medicare card numbers, with a final report to be provided by 29 September 2017.

The inquiry is separate to the Senate inquiry announced last week (see below) and is concerned with claims that Medicare card details are being sold on the internet.

The deadlines for public submissions to both inquiries is notably short.

Independent Review

The Independent Review involves Professor Peter Shergold (former Secretary of the Department of Prime Minister and Cabinet), Dr Michael Gannon (President of the Australian Medical Association), Dr Bastian Seidel (President of the Royal Australian College of General Practitioners) and Dr Kean-Seng Lim (Australian Medical Association). Unsurprisingly, the Review does not involve a consumer representative; privacy advocates and users of the health system will presumably contribute through responses to the Review consultation paper.

Members of the Review will be "examining access by health professionals to Medicare card numbers by using the Health Professional Online Services (HPOS) system or by calling" the Department of Human Services.

The Department states
The Australian Government wants to ensure the system is convenient and secure. The system hasn’t been significantly changed since its establishment 8 years ago.
A 2014 ANAO report was noted here.

In July this year Dr Gannon was reported as worrying that the Medicare number data breach would undermine patient confidence in the much-criticised MyHealth Record (MyHR) system, with the AMA accordingly seeking an assurance that a similar breach could not occur with MyHR.
This is a deeply concerning development. It is so important that this information has integrity. 
It’s so important, as it is with a paper record, as it is with other forms of communication about deeply personal matters that they are secure.
The electronic health record has the potential to reduce adverse drug reactions, to reduce unnecessary duplications of investigations, but to do all that, both doctors and patients need absolute confidence in the integrity of personal information.
The Review's terms of reference and scope are -
The Review will consider the balance between appropriate access to a patient’s Medicare number for health professionals to confirm Medicare eligibility, with the security of patients’ Medicare card numbers. 
The Review will examine and advise on:
  • the type of identifying information that a person should be required to produce to access Medicare treatment in both urgent and non-urgent medical situations 
  • the effectiveness of controls over registration and authentication processes at the health provider's premises to access Medicare card numbers 
  • security risks and controls surrounding the provision of Medicare numbers across the telephone channel, and the online connection between external medical software providers and HPOS 
  • the sufficiency of control by patients and the appropriateness of patient notification regarding access to their Medicare number 
  • the adequacy of compliance systems to identify any potential inappropriate access to a patient’s Medicare number 
  • any other identified area of potential weakness associated with policy, process, procedures and systems in relation to accessibility of Medicare numbers. 
Based on the examination of the issues above, the Review will make recommendations for immediate practical improvements to the security of Medicare numbers, while continuing to ensure people have access to the healthcare they need in a timely manner. 
The Review may also make recommendations for medium to longer term changes, or at least the identification of areas that need further examination, to ensure the security of the system and protection of information of Australians.
The consultation questions in the Independent Review's discussion paper are summarised as
1. Do patients have sufficient control and awareness of access to their Medicare card details? 
2. What identifying information should patients have to produce to access health services? 
3. Are the current access controls for HPOS sufficient to protect Medicare information and prevent fraudulent access? 
4. What would the impact on health professionals be if they were required to move from an individual or site level PKI certificate to a PRODA account? Would any enhancements to PRODA be required for health professionals to accept it as a replacement? 
5. If PRODA accounts and PKI certificates were to be suspended following a period of inactivity, what processes or alerts would the Department need to put in place? What would be a reasonable period of inactivity before accounts were suspended?  
6. If delegate arrangements in HPOS were to be time limited, what processes or alerts would the Department need to put in place? What would be a reasonable period for delegate arrangements to last before they require review? 
7. In what circumstances do health professionals need to make batch requests for Medicare card details through HPOS Find a Patient? Can such requests be limited to certain types of providers or health organisations? Should they be subjected to a higher level of scrutiny? 
8. In what circumstances do health professionals require access to Medicare card numbers through the provider enquiries line? Could the provider enquiries line be made available in more limited circumstances? 
9. Is the information available to health professionals regarding their obligations to protect Medicare card information (including the terms and conditions for accessing this information online) sufficiently clear and understood? 
10. Should Medicare cards continue to be used as a form of evidence of identity? 
11. How can Government build public awareness of why it is important for individuals to protect their Medicare card information? 
12. Do you have any other comments about the Review Panel’s possible responses or any other matters relating to the Terms of Reference?
Senate Inquiry

The Senate Finance and Public Administration Committees inquiry into 'The circumstances in which Australians’ personal Medicare information has been compromised and made available for sale illegally on the ‘dark web’' is concerned with
  •  any failures in security and data protection which allowed this breach to occur; 
  • any systemic security concerns with the Department of Human Services’ (DHS) Health Professional Online Services (HPOS) system; 
  • the implications of this breach for the roll out of the opt-out My Health Record system; Australian government data protection practices as compared to international best practice; 
  • the response to this incident from government – both ministerial and departmental; 
  • the practices, procedures, and systems involved in collection, use, disclosure, storage, destruction, and de-identification of personal Medicare information; 
  • the practices, procedures, and systems used for protecting personal Medicare information from misuse, interference, and loss from unauthorised access, modification, or disclosure; and 
  • any related matters. 

17 August 2017

Compassion

'Compassion and the Rule of Law' by Susan A. Bandes in (2017) 13 International Journal of Law in Context 184  considers
the tensions between compassion and the rule of law. Compassion poses difficult challenges for the rule of law. The compassionate response is often cast as a deviation from settled law rather than a principled application of it. Compassion so understood is troubling, most obviously because it poses a challenge to overall fairness, notice, and consistency. The invocation of compassion to justify law reform is also troubling. It implies that solutions to inequality and other injustices are a matter of charity and mercy, rather than a matter of correcting wrongs and expanding rights.
I argue that compassion cannot serve as a reliable indicator of who should prevail in legal debates. I propose instead that compassion’s importance lies in its ability to illuminate for decision-makers what is at stake for the litigant. In this sense, compassion is closely tied to humility: both are reminders of human fallibility and of the limits of individual understanding. More fundamentally, compassion may serve as one of the core values informing the debate about the scope of individual rights and the proper role of government in protecting them.

Safe Harbours

'A Comparative Analysis of the Secondary Liability of Online Service Providers' by Graeme Dinwoodie in Graeme Dinwoodie (ed) Secondary Liability of Internet Service Providers (Springer, 2017) analyses
the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity. The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny. The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of the landscape in this area, especially but not exclusively in the EU. Service providers in several fields, most notably intellectual property law, are being required actively to assist in preventing wrongdoing by third parties regardless of their own fault (but for example, engaging in so-called “web-blocking” of allegedly infringing sites). These mechanisms, found in several legislative instruments but developed in greater detail by courts through applications in private litigation, operate to create a quasi-regulatory network of obligations without imposition of full monetary liability. The Chapter concludes by considering briefly whether generally applicable principles can be derived from, and extended beyond, the specific context in which they first arose. This analysis leads to two central propositions, which it is argued hold true descriptively and warrant endorsement prescriptively. First, an assessment of secondary liability cannot be divorced from (and indeed must be informed by) the scope of primary liability or other legal devices by which the conduct of service providers or their customers is regulated. And, second, despite the claims that secondary liability is simply the application of general principles of tort law, secondary liability is rarely a subject-neutral allocation of responsibility among different potential defendants according to autonomous principles of fault; rather, it maps in part to the policy objectives of the different bodies of law where the claim of (secondary) liability arises.