24 October 2017

Education and the ACL

The Productivity Commission's paper on University Education in 5 Year Productivity Review [PDF] considers 'Consumer rights and restitution for inadequate educational quality'.

The paper states
  • Universities are essential to Australia’s continued prosperity. Their research helps to raise productivity and living standards, while the knowledge and skills they teach to students develops human capital for better lifetime prospects, wages and productivity. However, there are tensions between universities’ research and teaching functions. Many university staff are more interested in, and rewarded for, conducting research (due to established cultures and the importance international research rankings). Teaching therefore plays second fiddle to research, with consequences for student satisfaction, teaching quality, and graduate outcomes. Realigning university incentives (both financial and institutional) closer towards the interests of students and taxpayers would help restore balance.
  • As the exact scale of any issues in teaching quality or student outcomes are difficult to determine, a first step would be improving their measurement, which would itself encourage universities to focus more on their teaching function.
  • The appropriateness of Australia’s existing consumer law provisions and their application to the higher education sector could also be reviewed to determine whether they provide sufficient restitution for inadequate teaching quality. 
  • Financial incentives, such as through performance-contingent funding (as proposed in the 2017-18 Budget) are also a step in the right direction, although there are a range of challenges with making this approach fair and effective. There is limited evidence that teaching quality is improved by universities jointly undertaking research and teaching (the ‘teaching-research nexus’), which undermines the rationale for the Australian Government’s restriction that all universities must do both. The teaching-research nexus is also used to justify cross-subsidies from teaching to research. This can create labour market distortions, as it encourages universities to increase the number of students undertaking high-margin courses and minimise the number doing low-margin courses, to increase research funds.
  • Making payments to universities for Commonwealth-supported places more cost-reflective would be an option to address the problem. However, it would have undesirable flow-on effects to university research capacity unless offset by other funding initiatives. It cannot be recommended without a reassessment of research funding arrangements for universities, or indeed their overall operation. Structural challenges in the Higher Education Loan Program (HELP) debt system can also result in unproductive skills formation. Increased costs for taxpayers associated with this may encourage short-term savings that have unintended consequences (such as limiting access and efficiency) or that undermine the principles of the system. As a solution, the Government has proposed decreasing the initial HELP repayment threshold. More debtors would make repayments, reducing the cost of the system.
  • This is unlikely to address many long-term structural challenges and could result in reduced labour supply and workforce participation through higher effective marginal tax rates. It could also undermine the historical ‘guaranteed returns’ principle of HELP (although it is subject to debate whether this remains a valid rationale). − A less distortionary method of reducing doubtful HELP debts would be to collect outstanding amounts from deceased estates (with adequate protections for hardship).
In discussing consumer protection the paper comments
Competitive markets for normal goods (such as consumer electronics) are generally covered by an implied warranty under the Australian Consumer Law (ACL) for faulty or inadequate products. These kind of warranties reinforce the rights of consumers to expect decent quality products and create strong incentives for the provider to ensure high-quality provision. Equally, providers that make misleading or false claims about the nature and quality of their products would also be liable under the ACL, as this would constitute misleading conduct.
Although the nature of the products provided by the higher education sector (both universities and non-university providers) is different to those in other markets, the basic principle of protecting consumer (student) rights in a competitive market and enabling them to seek restitution for inadequate product quality is sound.
The main barrier to the use of the ACL for educational services has historically been whether, for a Commonwealth-supported student, universities passed the test of being engaged in ‘trade or commerce’ — a necessary prerequisite for action under the statute. That barrier appears to have weakened with the adoption of a demand-driven system, which more clearly recasts universities as commercial agencies engaged in trade or commerce (Corones 2012; Fletcher and Coyne 2016; Nguyen and Oliver 2013). That has not only opened up the possibility of legal action for misleading conduct (for example, a university that marketed a course as led by an internationally renowned academic when it was not), but also for provision of inadequate services.
Equally, the requirement under the ACL for suppliers to exercise ‘due skill and care’ could, in principle, relate to set ting admission standards, curriculum design, course delivery, support for students, supervision quality and ‘fitness for purpose’ of a qualification (Corones 2012, pp. 11–12). The development of standards monitored by the Tertiary Education Quality and Standards Agency (TEQSA) would provide a possible benchmark for legal action by students. The addition of the unfair contracts regime into the ACL may also expand the scope for student legal action (Goldacre 2013).
There nevertheless remains uncertainty about whether a student could, under the existing legislation and associated instruments, successfully pursue a case against a university for a low quality course (Cohen 2016 versus Fletcher and Coyne 2016). Although universities appear to be covered by the existing ACL provisions, there seems to be no successfully prosecuted case in Australia, nor a flood of claims yet to be decided.
Part of the difficulty under the existing provisions may arise because a party making a complaint would need to show how the university had provided a sub-standard service. A poor labour market outcome would not (in isolation) trigger any restitution unless the university had provided a guarantee that successful completion of a qualification would lead to good job outcomes.
Although a lack of successful cases has also been present in the United Kingdom and the United States, recent developments suggest that the global landscape for litigation may similarly be changing (box 3.2).
A legal commentator has recently concluded that: ‘In Australia, a successful claim by a student for compensation for careless or incompetent teaching practices may well be just a matter of time’ (Cohen 2016). With virtually no jurisprudence, it is impossible to determine the likely number of future claims, let alone their possible effects on university conduct. However, it is notable that law firms are warning universities to undertake strategies to avoid liability, such as having good quality control procedures in place for staff, random supervision of lectures and solicitation of student feedback.
Box 3.2 International changes — making consumer law great again?
• In March 2017, a US federal judge approved an agreement under which President Trump will pay US$25 million to settle three class-action lawsuits relating to alleged problems in the quality of particular educational programs at Trump University (Eder and Medina 2017). Settlements have no precedent value because a party may decide to settle even if they expect to win in court (a point emphasised by President Trump). Regardless, the mere existence of settlements provides an avenue for claims by students. Settlements usually occur where is at least some prospect of success by the plaintiffs, whatever the particular merits of a given case.
• In the United Kingdom, the Competition and Markets Authority (the UK equivalent to the Australian Competition and Consumer Commission) has clarified that the newly enacted Consumer Rights Act 2015 applies fully to higher education providers (CMA 2015). The result is that, among other things, universities must provide services with ‘reasonable skill and care’, must not include unfair contract terms, and must not misrepresent the nature of their courses. A new feature of the Act is that a student would have a ‘right to require repeat performance’ (s. 55) — a right to return — if the university’s performance was below that implicit in its contract. That might arise because of the poor quality, organisation or supervision — all of which would breach the requirement for reasonable skill and care. The right to return may only relate to a part of the course. A student could alternatively seek damages or a refund.
Policy options in Australia
The Australian Government has a range of different approaches open to it, given domestic and international legal developments:
  • do nothing further, letting parties and courts determine the extent to which the current ACL provides remedies for students who have been given poor quality educational services 
  • change the ACL to include some of the features of the UK Consumer Rights Act 2015 (particularly some provision that emulates section 55)
  • develop complementary approaches to provide restitution outside the ACL, such as through alternative dispute resolution arrangements activated by a formal complaints mechanism.
Given the relevance of the existing ACL provisions and an apparent lack of pressing need for change, the most prudent short-term option would be to allow the current law to stand and for the courts to develop legal precedents over time.
However, continued monitoring of the outcomes of the UK experience should also be undertaken. If, after several years, the new UK arrangements have had significant positive effects on universities’ conduct, it would then be worth considering adoption of similar provisions in Australia. In particular, this would involve making it clear that the ACL does relate to higher education and giving the student the right to a refund, other compensation or the ‘right to a repeat performance’ in the event of unacceptable teaching quality.

22 October 2017

Harassment

The insightful 'A Roman law solution to an eternal problem: A proposed new dignitary tort to remedy sexual harassment' by Bede Harris in (2017) 42(3) Alternative Law Journal discusses
 the failure of both common and statute law to provide an adequate remedy for sexual harassment. The author adopts a comparative approach and examines the actio injuriarum of Roman law, which gives a remedy to plaintiffs for impairment of dignity caused by insult. He discusses how case law which has developed under Roman-Dutch law in South Africa has been used to provide a remedy for sexual harassment in a wide range of circumstances and suggests that tort law be developed along the same lines in Australia.

21 October 2017

FOI and Surveillance

'The Ecology of Transparency Reloaded' by Seth F. Kreimer in David Pozen and Michael Schudson (eds), Troubling Transparency: The Freedom of Information Act and Beyond (olumbia University Press, 2018) comments
As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s "Dissent Channel," the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.
The late Justice Scalia argued that the Freedom of Information Act was unnecessary. FOIA has also suffered the converse criticism: that it is necessary but ineffective. A third constellation of critics discerns a mismatch between the legal regime of transparency and the goals of good governance. David Pozen has argued that the costs imposed are pathologically asymmetric. FOIA, he alleges, is "neoliberal" and "reactionary"; it "empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy," while doing little to further scrutiny or control of corporate exploitation.
Drawing on case studies from the Bush-era "Global War on Terror" (or "Terrorism"), this chapter argues that critics miss important normative and practical issues. Critiques focused on denied requests and unsuccessfully litigated cases in isolation miss the ways in which information obtained though unlitigated or partially successful requests is facilitated by, and in turn has catalyzed other elements of a broader ecology of transparency. Analysts of FOIA should be alert to the elements of that ecology. Critics should acknowledge its virtues of resiliency and efficacy. Reformers should neither slight nor squander them.
The Constitutional Limits of Private Surveillance' by Kiel Robert Brennan-Marquez in Kansas Law Review (Forthcoming) comments
The age of data-driven law enforcement is upon us. As a consequence, state officials now rely heavily on private surveillance technology to forecast threats, drive investigations, and mobilize enforcement. On the whole, this development is welcome; the use of privately-collected data promises to refine policing and counterterrorism efforts. But it also has major implications for constitutional privacy. For the Fourth Amendment to safeguard privacy into the future, its approach to state action must change. Instead of turning, as it has historically, on the extent of government influence over private surveillance activity, the Fourth Amendment’s coverage should depend on whether private surveillance activity effects an extension, in practice, of law enforcement’s infrastructural capacity.
In addition to its normative benefits, the “infrastructural” approach also resolves certain mysteries within existing law and brings the Fourth Amendment into greater alignment with broader patterns of state action jurisprudence. Most importantly, focusing on infrastructure underscores the connection — unappreciated to date — between (1) law enforcement’s compulsory seizure of privately-held data, enabled by the so-called “third-party doctrine,” and (2) informal data-sharing between law enforcement and the private sector. The third-party doctrine is teed up for reform this term in Carpenter v. United States. But no such progress is on the horizon for informal data-sharing. Doctrinally, the issues have been compartmentalized, even though, at an infrastructural level, they represent two sides of the same coin. Both are mechanisms by which law enforcement officials capitalize on private surveillance technology in lieu of performing surveillance directly — and both thus facilitate bulk, warrant-less data collection by the state. As such, a full solution to the shortcomings of the third-party doctrine demands parallel attention to the shortcomings of the Fourth Amendment’s antiquated state action rules, and vice versa. Solving one problem in isolation from the other risks a partial victory — or even a Pyrrhic one, to the extent that reform of the third-party doctrine could encourage even more informal data-sharing between the government and the private sector. Against this backdrop, the infrastructural approach offers an integrated path forward, and one that will only become more urgent, over time, as data-driven law enforcement practices intensify.

20 October 2017

Victorian Digital Czar

The Victorian Government, following the various whole of government digital strategy initiatives announced over the past decade (and accompanied by fundamental weakening of the state privacy commissioner, has announced that it is "improving data-sharing across government to deliver better services for Victorians".
The Government collects vast quantities of data – about education and health, our communities, business, employment, infrastructure and the environment. However for too long government data has been held in agency silos and not available across government to tackle many of the pressing community concerns.
The Victorian Data Sharing Bill 2017 – which was second read in Parliament today – will break down these silos and ensure agencies can share data and information across the whole of Government.
Enabling data to be shared and used across government will provide insights about what works and why, and ensure informed policy decisions that deliver for hard working families – from tackling family violence to improve health outcomes.
This Bill provides a clear legal framework that allows for government data to be shared for policy making, service planning and design, enabling government agencies to work together to tackle key priorities.
The Bill also includes strong safeguards and oversight to protect personal data and information, including independent oversight by Victoria’s privacy regulators, mandatory reporting of any potential breaches, and new offences for unauthorised access, use or disclosure.
This Bill follows other work that the Labor Government is doing to modernise Victoria’s data and information sharing regime that includes:
  • Legislation to protect women affected by family violence by better sharing information and prioritising victim survivors over their perpetrators 
  • The development of a Central Information Point to facilitate information sharing across agencies involved in protecting women from family violence 
  • The creation of Office of Victorian Information Commissioner, bringing together freedom of information with data protection and privacy, to provide independent oversight across those closely-related fields.
The Labor Government has also appointed Victoria’s first Chief Data Officer within the Victorian Centre for Data Insights to transform how the Victorian Government uses data to strengthen policy making. This Bill supports the new Officer by establishing into law the statutory position, and its powers and functions.
The Centre website states -
The Victorian Centre for Data Insights (the Centre) provides a whole-of government focus to help transform the way government uses data.
The Centre will tell a bigger story than analysing data from just one source. It will bring data together from across government to generate new insights to design better and more data driven policy and services.
The Centre will:
  • partner with departments and agencies on data analytics projects that inform policy making and service design 
  • build data analytics skills and capability of the Victorian Public Service (VPS) 
  • contribute to improving how data is collected and managed across the VPS 
  • work with other governments across Australia on better data use, on behalf of the Victorian Government.
The Centre operates as a business unit within the Department of Premier and Cabinet. The Centre is part of the Special Minister of State’s focus on public sector reform, working to strengthen evidence- based policy and practice.
The Centre is led by Victoria’s first Chief Data Officer (CDO). The CDO will lead the Centre, and advocate for the better use of data across government. The CDO is supported by a team of data analysts, information management and policy specialists.
The Explanatory Memo for the Bill states
The main purpose of the Victorian Data Sharing Bill 2017 is to establish the office of the Chief Data Officer, to promote the sharing and use of public sector data as a public resource that supports government policy making, service planning and design, and to amend the Privacy and Data Protection Act 2014.
Clause Notes
Part 1--Preliminary
Clause 1 provides that the main purposes of the Bill are--
  • to establish the office of Chief Data Officer; and 
  • to promote the sharing and use of public sector data as a public resource that supports government policy making, service planning and design; 
  • to remove barriers that impede the sharing of identifiable data with the Chief Data Officer or with data analytics bodies, and to facilitate the sharing of data across the public sector; and 
  • to provide protections in connection with data sharing under this Bill, by-- 
  • specifying the purposes of data sharing, and the circumstances in which sharing of identifiable data is permitted; and   
  • ensuring that data that is handled under this Bill is protected from unauthorised access, use or disclosure; and 
  • to make consequential and other amendments to other Acts.
Clause 2 sets out the commencement of the Bill. It will come into operation on the day after the day on which it receives the Royal Assent.
Clause 3 provides definitions for the key terms used in the Bill.
Subclause (2) provides that, for the purposes of the Bill, a body holds data if the data is contained in a document in the possession or under the control of the body.
Clause 4 provides that the Bill binds the Crown. Clause 5 provides that data must only be handled under the Bill for the purpose of informing government policy making, service planning and design.
Part 2--Chief Data Officer
Clause 6 provides that the Secretary to the Department responsible for administering this Bill may employ a person under Part 3 of the Public Administration Act 2004 to be the Chief Data Officer.
Clause 7 sets out the functions of the Chief Data Officer which include to conduct data integration and data analytics work to inform government policy making, service planning and design, to build capability in data analytics across the public sector, to coordinate data sharing and integration on behalf of the state of Victoria, to make integrated data sets and the results of data analytics work available to data sharing bodies and designated bodies and to collaborate with these bodies, and any other functions incidental to these functions or conferred under this Bill or any other Act.
Part 3--Data requests
Clause 8 sets out the mechanism by which the Chief Data Officer can make a formal request to a data sharing body or a designated body for data held by the body. The Chief Data Officer can only make a request for the purpose of informing government  policy making, service planning and design and must not request restricted data. The Chief Data Officer must make the request in the form of a written notice which specifies the data being requested, the reasons for the request and how the data will be handled.
Clause 9 provides that a data sharing body that receives a request under clause 8 must respond to the request within 10 business days (or a longer period as agreed by the Chief Data Officer). The data sharing body's response must either be to provide the data, or to provide reasons (in accordance with clause 14) for why the data sharing body will not be providing some or all of the data. If the data sharing body does not intend to provide some or all of the data, the response must be given to the Secretary to the Department as well as the Chief Data Officer.
Clause 10 provides that if a designated body receives a request under clause 8, the designated body may respond by providing some or all of the data but is not obligated to do so.
Clause 11 sets out the mechanism by which the Chief Data Officer can make a formal request to a data sharing body or a designated body for information about their data holdings. The information that may be requested includes, but is not limited to--
  • the kind of data sets held by the data sharing body or designated body; and 
  • the number of data sets held by the data sharing body or designated body; and 
  • the kind of information contained in the data sets held by the data sharing body or designated body; and 
  • the accuracy, currency and completeness of the data sets held by the data sharing body or designated body.
The Chief Data Officer can only make a request for the purpose of informing government policy making, service planning and design. The Chief Data Officer must make the request in the form of a written notice which specifies the information being requested, the reasons for the request and how the information will be handled.
Clause 12 provides that a data sharing body that receives a request under clause 11 must respond to the request within 10 business days (or a longer period as agreed by the Chief Data Officer). The data sharing body's response must either be to provide the information, or to provide reasons (in accordance with clause 14) for why the data sharing body will not be providing some or all of the information. If the data sharing body does not intend to provide some or all of the information, the response must be given to the Secretary to the Department as well as the Chief Data Officer.
Clause 13 provides that if a designated body receives a request under clause 11, the designated body may respond by providing some or all of the information but is not obligated to do so.
Clause 14 sets out a non-exhaustive list of reasons for which a data sharing body or designated body may choose to refuse to provide data or information requested by the Chief Data Officer under clause 8 or 11. The responsible officer of the data sharing body or designated body may refuse if the responsible officer considers that data or information should not be provided for any reason, including but not limited to the following reasons--
  • • that the provision of the data or information would constitute a breach of one or more of the following-- 
  • client legal privilege or legal professional privilege; 
  • contract; 
  • an equitable obligation of confidence; 
  • an order of a court or tribunal; 
  • subject to Part 4, a law of the Commonwealth, a State or a Territory; or 
  • that the provision of the data or information would be likely to prejudice one or more of the following-- 
  • the investigation of a breach, or possible breach, of a law of the Commonwealth, a State or a Territory, or the administration or enforcement of such a law; 
  • a coronial inquest or inquiry; 
  • a proceeding before a court or tribunal; or 
  • that the responsible officer believes on reasonable grounds that the provision of the data or information would be likely to endanger the health, safety or welfare of one or more individuals.
Part 4--Use and disclosure of data
Division 1--Authorised use and disclosure of identifiable data
This division sets out the circumstances in which the use or disclosure of identifiable data is authorised by the Bill and the restrictions which apply to use and disclosure of identifiable data.
Clause 15 subclause (1) authorises the responsible officer of a data sharing body or a designated body to disclose identifiable data to the Chief Data Officer in response to a request under clause 8. The disclosure is only authorised for the purpose of informing government policy making, service planning and design.
Subclause (2) authorises the responsible officer of a data sharing body or designated body to disclose identifiable data to a data analytics body. The disclosure is only authorised for the data analytics body to conduct data integration on the identifiable data for the purpose of informing government policy making, service planning and design.
Clause 16 authorises the Chief Data Officer to disclose identifiable data that the Chief Data Officer has received from a data sharing body or designated body under the Bill to a data analytics body. The disclosure is only authorised for the data analytics body to conduct data integration on the identifiable data for the purpose of informing government policy making, service planning and design.
Clause 17 authorises the Chief Data Officer to use (as well as collect, hold and manage) identifiable data received from data sharing bodies and designated bodies under this Bill. The Chief Data Officer is only authorised to use the identifiable data for data integration for the purpose of informing government policy making, service planning and design.
Clause 18 provides that if the Chief Data Officer or a data analytics body intend to use the data that they have received under this Bill for the purpose of data analytics work, they must first take reasonable steps to ensure that the data no longer relates to an individual that can be reasonably identified. In doing so, the Chief Data Officer or data analytics body must have regard to--
  • the de-identification techniques applied to treat the data; 
  • the technical and administrative safeguards and protections implemented in the data analytics environment to protect the privacy of individuals; and 
  • any other considerations specified in the guidelines issued by the Chief Data Officer.
Clause 19 provides that before disclosing the results of data analytics work, the Chief Data Officer or a data analytics body must ensure that the results to be disclosed include only de-identified data.
Division 2--Authorised use and disclosure of data to which a secrecy provision applies
Clause 20 provides that the responsible officer of a data sharing body or designated body may disclose data to the Chief Data Officer under this Bill, even where a secrecy provision under another Act applies to that information, so long as the disclosure is in accordance with, and for the purposes of, this Bill.
Clause 21 requires that if a responsible officer of a data sharing body or designated body is aware that a secrecy provision applies to data which they are disclosing to the Chief Data Officer, the body must inform the Chief Data Officer of the existence of the secrecy provision.
Clause 22 provides that if a secrecy provision applies to the data received by the Chief Data Officer under this Bill, then the Chief Data Officer is authorised to use the data for the purposes of this Bill.
Clause 23 provides that if the Chief Data Officer intends to disclose information received under this Bill to which a secrecy provision applies, the Chief Data Officer must first obtain the approval of the Minister responsible for administering the secrecy provision  (and in the case of a secrecy provision in the Taxation Administration Act 1997, the Commissioner of State Revenue).
Subclause (2) enables the Chief Data Officer to disclose data to the Minister or to the Commissioner of State Revenue (as applicable) for the purpose of obtaining the approval.
Division 3--Relationship with other Acts
Clause 24 subclause (1) provides that this Part does not affect the handling of data that would otherwise be permitted by or under the Privacy and Data Protection Act 2014, the Health Records Act 2001 or any other Act.
Subclause (2) provides that except as expressly provided by this Part, this Bill does not affect obligations under the Privacy and Data Protection Act 2014 or the Health Records Act 2001 in relation to the handling of identifiable data.
Subclause (3) provides that if the Chief Data Officer or a data analytics body becomes aware that this Bill, the Privacy and Data Protection Act 2014, or the Health Records Act 2001 has been or is likely to have been breached in relation to data handled under the Bill while in the Chief Data Officer's or the data analytics body's control, they must as soon as possible inform the data provider and the Information Commissioner or Health Complaints Commissioner (as relevant).
Clause 25 provides that the Freedom of Information Act 1982 does not apply to data in the possession of the Chief Data Officer or a data analytics body that was received or integrated under this Bill.
Part 5--Offences
Clause 26 creates a summary offence for a person (without a reasonable excuse) to access, use or disclose data obtained by the person under this Bill, other than in accordance with this Bill or in the performance of the person's functions under this Bill. The penalty for the offence is 240 penalty units or 2 years' imprisonment or both.
Clause 27 creates an indictable offence for a person to access, use or disclose any data or information obtained by the person under this Bill if the person knows or is reckless as to whether the data or information may be used to--  
  • endanger the life or physical safety of any person; or 
  • commit, or assist in the commission of, an indictable offence; or 
  • impede or interfere with the administration of justice.
The penalty for the offence is 600 penalty units or imprisonment for 5 years or both.
Part 6--Reporting and review
Clause 28 requires that the Chief Data Officer provide a report to the Health Complaints Commissioner at least every 12 months on the operation of the Centre in relation to the Centre's use of health information including the sharing of health information, projects which have involved the use of health information and the Centre's compliance with the Health Records Act 2001.
Clause 29 requires that the Chief Data Officer provide a report to the Information Commissioner at least every 12 months on the operation of the Centre in relation to the Centre's use of personal information (other than health information) including the sharing of personal information, projects which have involved the use of personal information and the Centre's compliance with the Privacy and Data Protection Act 2004.
Clause 30 provides that the Minister must cause a review to be made of the first 5 years of operation of this Bill and within 12 months of the review being completed, cause the report of the review to be laid before each House of Parliament.
Part 7--Other matters
Clause 31 subclause (1) allows the Chief Data Officer to delegate any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the Department responsible for administering this Bill.
Subclause (2) allows the Secretary to a Department to delegate in their capacity as a data analytics body, any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the Department.
Subclause (3) allows the responsible officer of a data sharing body, data analytics body or designated body to delegate any of their powers, functions or duties (other than their power of delegation) under the Bill to a person employed or engaged by the relevant body.
Clause 32 provides that the Governor in Council may make regulations to give effect to the Bill, including regulations to--
  • prescribe a body as a data sharing body or a data analytics body; and 
  • prescribe a class of data to be restricted data; and 
  • prescribe a provision to be a secrecy provision to which Division 2 of Part 4 does not apply.
Clause 33 provides that the Chief Data Officer may issue and publish policies and guidelines in relation to the administration of this Bill and that a data analytics body, data sharing body or a designated body must have regard to the policies or guidelines issued by the Chief Data Officer. The policies and guidelines may relate to--
  • privacy and confidentiality preserving procedures for treating data; 
  • data security safeguards in relation to data handling and storage under this Bill; 
  • secure technology platforms for data handling and storage under this Bill; 
  • risk mitigation frameworks for data handling and storage, such as proportionate risk assessment tools and techniques; 
  • protocols for data integration and data analytics projects, such as project design, governance and data handling arrangements; 
  • any other matters the Chief Data Officer considers relevant.
Part 8--Other matters
Clause 34 subclause (1) amends Schedule 1 of the Privacy and Data Protection Act 2014 to correct the definition of unique identifier by replacing the second "but" in the following definition with an "and" so that it now reads as follows--
"unique identifier means an identifier (usually a number) assigned by an organisation to an individual uniquely to identify that individual for the purposes of the operations of the organisation but does not include an identifier that consists only of the individual's name and does not include an identifier within the meaning of the Health Records Act 2001;".
Subclause (2) amends Schedule 1 of the Privacy and Data Protection Act 2014, to insert "or authorised" in clause 10.1(b) so that it permits the collection of sensitive information by an organisation where it is required or authorised by law.
Clause 35 amends section 20 of the Family Violence Protection Amendment (Information Sharing) Act 2017 to repeal certain amendments to the Privacy and Data Protection Act 2014 that are no longer required as a result of the amendment made by clause 34(2) of the Bill.
Clause 36 provides that the repeal of this Part is repealed on the first anniversary of the day on which this Bill comes into operation.

18 October 2017

Protests

In Brown & Anor v The State of Tasmania [2017] HCA 43 the High Court has held invalid certain provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) in relation to the implied freedom of political communication.

Provisions of the Act prohibit "protesters" – persons engaging in conduct in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" – from engaging in certain conduct on "business premises" or "business access areas". "Business premises" relevantly comprises "forestry land", which includes land on which "forest operations" are being carried out. "Business access area" is defined as so much of an area of land, outside business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, business premises. Police officers may direct any person to leave or stay away from "business premises" or "business access areas" in certain circumstances under pain of arrest or criminal penalty.

The plaintiffs, notably former Greens Senator Bob Brown were present in the Lapoinya Forest in North West Tasmania when forest operations were being conducted there. They were arrested and charged with offences under the Act in relation to their conduct in opposing the logging of part of that forest. (The charges against each plaintiff were not later pursued.)

It was not disputed that, but for directions made under the Act, and to the extent permitted by other laws, the plaintiffs would have gone back to the Forest for the purpose of raising public awareness of logging in that forest.

In the High Court, the plaintiffs challenged the validity of provisions of the Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom.

 A majority of the High Court has today held that the impugned provisions of the Act in respect of forestry land and business access areas relating to forestry land effectively burdened the implied freedom of political communication.

A majority of the Court held that the Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities. The Court however held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible. The provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires.

A majority of the Court therefore declared that the impugned provisions were invalid in their operation in respect of forestry land and related business access areas.

07 October 2017

MacKinnon

'The Initial Test of Constitutional Validity: Identifying the Legislative Objectives of Canada's New Prostitution Laws' by Debra M. Haak in (2017) 50(3) University of British Columbia Law Review 657-696 comments 
The criminal law applicable to the commercial exchange of sex in Canada has shifted dramatically. Prior to 2013, buying and selling sexual acts was not illegal, but certain activities related to the conduct of prostitution were subject to criminal sanction. In 2013, the Supreme Court of Canada declared three offences applicable to adult prostitution inconsistent with the Charter and therefore void. The Supreme Court suspended the declaration of invalidity for a period of one year, returning the question of how to deal with prostitution to Parliament. In 2014, Parliament enacted the Protection of Communities and Exploited Persons Act. It is now a criminal offence to obtain sexual services for compensation in Canada. The constitutionality of the PCEPA has been questioned. Identifying the legislative objectives of the PCEPA will be a key step in assessing whether the criminal sanctions created by it accord with the principles of fundamental justice and may be demonstrably justified in a free and democratic society. In a recent article, Hamish Stewart suggested that the PCEPA may be unconstitutional on the basis that it has incompatible purposes of denouncing and deterring sex work while also seeking to improve sex workers’ safety. This paper examines how courts identify legislative objectives and identifies the legislative objectives of the PCEPA as reflected in the legislative record. The overall objective of the PCEPA is denouncing and deterring prostitution. This paper concludes that it is not an objective of the PCEPA or the criminal prohibitions created by it to make sex work safer for sex workers.

Transparency

'The Constitutional Duty to Give Reasons for Judicial Decisions' by Luke Beck (2017) 40(3) University of New South Wales Law Journal comments
There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error.
This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.
Beck argues
The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader 'culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed. This article contributes to that developing literature by arguing that in Australia there is an absolute constitutional duty to provide reasons for judicial decisions and by examining whether the general practice of the New South Wales Court of Appeal and the High Court complies with that duty when deciding applications f or leave or special leave to appeal.
There is clear authority in Australia that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where they are required, is an error of law. This article makes two central doctrinal arguments. The first doctrinal argument is th at it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. The second doctrinal argument is that a failure to provide reasons is not just an error of law but is a jurisdictional error. This article also provides important statistical data on the practice of giving reasons for applications for leave and special leave to appeal by the New South Wales Court of Appeal and the High Court. That analysis shows that the New South Wales Court of Appeal always complies with the constitutional duty to provide reasons for judicial decisions in respect of leave to appeal applications but that the High Court only sometimes complies with that constitutional duty in respect of special leave to appeal applications.
The article is structured as follows. Part II examines the existing authorities concerning the duty to give reasons for judicial decisions. Relying on the underlying principles of the authorities considered in Part II, Part III develops the argument that it is a defining characteristic of courts and of the exercise of judicial power that reasons for judicial decisions are always given. Part IV furthers the analysis in Part III by explaining what amounts to adequate reasons in order to comply with the constitutional duty to provide reasons for judicial decisions.
In Part V, the article examines the consequences of a failure to comply with the constitutional duty to provide reasons for judicial decision. Part V argues that a failure to comply with the duty is not simply an error of law, as existing authorities hold, but is in fact a jurisdictional error. The jurisdictional error arises because a failure to comply with the duty impairs the institutional integrity of the court and, possibly also, because a failure to comply amounts to a denial of procedural fairness. Part VI examines the content of the duty to give reasons in respect of applications for leave or special leave to appeal. Part VI explains the scope of the constitutional duty in the context of leave and special leave to appeal applications and undertakes an empirical analysis of decisions of the High Court and the New South Wales Court of Appeal to see whether practice is consistent with principle. Part VI also discusses the implications of the High Court’s regular failure to comply with the constitutional duty. Part VII offers some concluding comments