21 October 2015


'Marital Supremacy and the Constitution of the Nonmarital Family' by Serena Mayeri in (2015) 103 University of Pennsylvania Law School 1277 comments
Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy — the legal privileging of marriage — through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their parents. By reaffirming the legitimacy of governmental objectives such as discouraging illicit sex and promoting traditional marriage, courts obscured the ways in which marital supremacy injured adults as well as children, reinforcing racial, gender, and economic inequality and circumscribing sexual and reproductive freedom.
Using court documents and archival sources, this Essay uncovers alternative visions of the harm of illegitimacy penalties offered by advocates and activists who framed these laws and practices as centrally connected to poverty, systemic racial oppression, and the subordination of women. Civil rights and poverty lawyers spotlighted the disparate impact of illegitimacy penalties on poor families of color, especially African Americans in the South. Feminists emphasized how these laws disproportionately burdened women — who often bore primary responsibility for nonmarital children’s care and support — curtailing their sexual, reproductive, and economic freedom. The failure of these broader accounts of the harms of illegitimacy penalties to influence judicial opinions impoverished our constitutional politics in ways that reverberate today. In a world where marriage is both a privileged status and a status of the privileged, marriage equality that rests upon non-marriage’s ignominy risks reinforcing the many other status inequalities that taint the legacy of marital supremacy.


Peter Foster, the convicted scammer with a predilection for thumbing his nose at authority, has gained early release from prison.

Logan J in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) [2015] FCA 1103 commented -
Although Mr Foster’s deliberate and false purporting to have been in Fiji when all the while he remained in Australia both at the time of his sentencing for the contempts and thereafter until arrested in 2014 was deeply dismissive of the administration of justice and entirely consistent with the deficiency of character described when he was sentenced for those contempts, there are countervailing considerations, albeit of a nature which must remain for the present confidential, which warrant his early release from prison, subject to the continued contingency of his being required to serve the 18 month balance of the original three year term of imprisonment. There will be a related, consequential extension in the period of the conditions to which he will be subject upon his release.
Past references to Foster include those here, here and here.

Presumably we're on to the mini-series.

20 October 2015

That pernicious thing known as FOI

From the Finance and Public Administration Legislation Committee Hansard for 19 October 2015  regarding the Australian Public Service Commission, specifically questioning regarding Commissioner Lloyd's deeply problematical comments regarding the national Freedom of Information regime -
 Australian Public Service Commission CHAIR ( Senator Bernardi ): The committee is now going to be dealing with the Australian Public Service Commission. As such I welcome the Minister for Employment and the Minister Assisting the Prime Minister for the Public Service, Senator the Hon. Michaelia Cash. I welcome again John Lloyd, the Public Service Commissioner, and officers of the Australian Public Service Commission. .... Minister, do you wish to make an opening statement?
Senator Cash: I do not.
Chair: Mr Lloyd, do you wish to make an opening statement?
Mr Lloyd : No, I do not.
Chair: I will go to questions. Senator Rhiannon, are you happy to start?
Senator Rhiannon: I just want to return to that issue that I started to ask at the wrong time. Could you expand on what you meant when you made the comment about the FOI laws being 'pernicious'—'very pernicious', I think it was.
Mr Lloyd : It was in a speech I gave to a Public Service function. My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding. It seems to me that it has come to a stage where people are very reluctant perhaps at times to give advice in writing. I found this throughout my experience in both state and federal governments—both coalition and ALP—over many years. That is often the statement that is made: I would rather not give that in writing. I do not think that was the intention of FOI.
Senator Rhiannon: Do you feel that your comments were accurately reported?
Mr Lloyd : Yes.
Senator Rhiannon: If I understand what you are saying, you are committed to the FOI process, but you consider that it is not working. Is that a fair summary of what you are saying?
Mr Lloyd : I am committed to the FOI process, and every officer has an obligation to comply with the law. But in the role of commissioner I proffered my view as to how it stands at the moment.
Senator Rhiannon: Could you expand on how the law has gone beyond what was intended?
Mr Lloyd : I think I just outlined that then. When FOI laws were introduced they were particularly designed, as I understood it, to ensure that citizens could have access to information the government held about them, whether it was in what is now the Department of Human Services, Centrelink or whatever. It seems to me that now it is used for various purposes, often involved in the controversy of the day. As I mentioned in the previous answer, as a senior official of 20 or more years, I have been struck by how often it seems to be that people are very cautious about giving advice in writing because of FOI.
Senator Rhiannon: Have you raised this matter with the minister for the public service?
Mr Lloyd: No, I have not. I am the Australian Public Service Commissioner. I was asked a question and I was giving a view that I have.
Senator Rhiannon: I am surprised by that response, because it seems such a significant response. You have made a very important observation and it is being reported publicly. Did you choose not to raise it with the minister or did you see that it was not necessary? Could you expand on that, please?
Mr Lloyd : The minister was obviously aware of the comments which I made. The administrative responsibility for FOI rests with the Attorney-General's Department, I think, and I did not see a need to take it further with the minister.
Senator Rhiannon: So what action do you think is needed, going back to the challenge that you have identified with regard to how FOI is operating in Australia?
Mr Lloyd : I injected a view into the public discussion of this, that I saw it as moving beyond its original intent. I am not a legal expert in the FOI area, but I think I have a right as Public Service Commissioner to state a view.
Senator Ludwig: Did you get yourself involved in the legislation as it is now written? When did you last get an update on the FOI legislation and what it currently provides for?
Mr Lloyd : We get—
Senator Ludwig: No, you.
Mr Lloyd : I am just trying to think of what we get. Me personally?
Senator Ludwig: Yes.
Mr Lloyd: I have not read it for probably a year or more. We get inquiries about FOI. I conducted an investigation into elements of the Home Insulation Program and in doing that I looked at FOI material. I did not go through and read every section of the act, but I certainly made myself familiar with FOI requirements.
Senator Ludwig: What I am trying to get a sense of is this. You indicated that when the FOI legislation was first introduced, more than 20 years ago now, you had a particular view about what it might have covered then, which was access to public information on individuals. You still hold that view, as I understand it from your evidence. But the FOI legislation that is currently promulgated is far broader than that, so you are not reflecting a contemporary view of FOI. I just wanted to clarify that you are reflecting your view of some 20-odd years ago about what you think FOI should look like.
Mr Lloyd: No, that is not what I am saying.
Senator Ludwig: Perhaps you could correct me, then.
Mr Lloyd : What I am saying is that, as a senior, experienced public official, my view is that the way FOI works at the moment is less than ideal. I think it has gone beyond its original intent, certainly, notwithstanding what the current legislation is.
Senator Ludwig: That is what I thought I just put to you. So you think—
Mr Lloyd : No. I am not reflecting a view of 20 years ago.
Senator Ludwig: You think that the current FOI legislation has gone well beyond what it should. I do not know where you get the ability to do that, but the legislation is the legislation, as I understand it, and it reflects what the current view of FOI is. You might hold a personal view that it is in excess of what it should be, but that is what it is. It concerns me that you are reflecting a view that it has gone beyond where you think it ought to have gone, which might also then create a bias by you in how you implement it.
Mr Lloyd: No, it does not create a bias in how I implement it, because I am required to adhere to the law. But also, as Public Service Commissioner, I have a number of roles to be informed about the management of the Public Service and, although it is not my direct responsibility, it does, in my view, bear upon it, so I put forward a view.
Senator Rhiannon: But, Commissioner, considering your leading role—you are the commissioner—people look to you, and what you say will clearly influence the people who work in the Public Service. When you speak in that way, and particularly when you do not follow it through on recommendations or just engaging with the minister, can't you see that it could be interpreted that there is a bias that there is a failure in the FOI, and therefore people under you may become more reticent in how they engage with this process?
Mr Lloyd: I was not saying there is a failure. What I was saying was that I had a view about it: that it had moved away from its original intention. I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service.
Senator Rhiannon: So if there is that responsibility, which is—
Senator Ludwig: You do not have a role to reflect that the legislation currently does not reflect your view.
Senator Rhiannon: Yes. So you have identified that responsibility. What I do not understand is why the responsibility just has stopped with that comment and you did not follow through on that.
Mr Lloyd : When I made the comment, it was reported. As I say, the responsibility rests with another portfolio, and they would have been aware of my comment. I did not see the need to actually take it further.
Senator Rhiannon: You made that speech. When I look back on how it was reported, I am not sure if you intended to make those comments or if it just came about through questions. I think at the last estimates, when Senator Ludwig was questioning you about this, you made comments about how you had notes and you spoke to the notes. That left me with the impression that maybe you had intended to put these comments about FOI, which I think puts it on another level. Or was it just, as it was originally reported, a response to a question?
Mr Lloyd: That is a very long question you asked me. Senator Ludwig, I think, at that time was talking about the nature of speeches and the lack of them on my website. In response to what I understand to be your question, the comments were made, as I recollect, in the answer to a question from the floor, but they reflect my views. I was asked a question and I considered it and answered conveying my views.
Senator Rhiannon: So you did not have that as a prepared part of your speech. It was a response.
Mr Lloyd: No, it was not part of the speech.
Senator Rhiannon: I was also interested in whether your views have changed on this matter, because you were with the Institute of Public Affairs and then you have come into this position. Now that you have seen FOI on the other side of the fence, so to speak, I was wondering if your views have changed from your current work.
Mr Lloyd: No, I think my views are formed by my broad experience as a senior executive over about 30 years or so, in state and federal coalition and ALP governments, and the IPA. It is just part of my views.
In considering Lloyd's comments it is worth bearing in mind the extensive jurisprudence and theoretical literature about FOI, ALRC and other reports, and the Objects of the current statute -
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

After Myriad

IP Australia is engaged in a brief consultation (ending 30 October) regarding its proposed examination practice in relation to gene technology patent claims, following Yvonne D'arcy v Myriad Genetics Inc and Anor [2015] HCA 35 earlier this month.

IP Australia states
The decision provides clarification of the law as applied to the patenting of isolated nucleic acid sequences and we will move quickly to ensure that patent examination practices are consistent with the findings of the Court. 
We are considering the decision and its implications and will provide a response in due course. In the interim, we have suspended examination of patent applications claiming nucleic acid sequences.
It also states
The Commissioner has considered the High Court’s decision. The decision clearly concludes that a claim to an isolated nucleic acid that merely represents information coding for a polypeptide is not patent eligible. 
The High Court unanimously decided that claims 1–3 did not define a manner of manufacture. As a result of this, we are inviting interested parties to comment on The Commissioner’s proposed examination practice.
The consultation notice indicates
The decision related to Myriad's patent (686004) on the isolated nucleic acid encoding the BRCA1 mutant polypeptide and to methods of testing for the presence of mutations of the representative BRCA1 gene, and thus an increased likelihood of developing breast or ovarian cancer. The High Court was asked to decide whether claims 1-3, directed to the isolated BRCA1 nucleic acid, defined patent eligible subject matter (i.e. a manner of manufacture). 
The High Court unanimously decided that claims 1-3 did not define a manner of manufacture. The Court found that, while formulated as claims to a product (i.e. a nucleic acid molecule), the substance of the invention was the information embodied in the nucleotides of the molecule. The Court decided that the information was an inherent part of the molecule and not created by human action. The Court did not make any finding with respect to the remaining claims of the patent directed to probes, vectors, methods of production and methods of diagnosis. 
Our proposed practice for your comment 
The Commissioner has considered the High Court's decision. The decision clearly concludes that a claim to an isolated nucleic acid that merely represents information coding for a polypeptide is not patent eligible. On this basis, the Commissioners considers that the following are not patent eligible and will not accept claims for:
  • Naturally occurring (human) nucleic acid sequences encoding polypeptides or functional fragments thereof - either isolated or synthesised 
  • Naturally occurring (non-human) nucleic acid sequences encoding polypeptides or functional fragments thereof - either isolated or synthesised 
  • cDNA 
  • Naturally occurring human and non-human coding RNA - either isolated or synthesised
In light of the High Court's decision the Commissioner proposes the following remain patent eligible as they do not merely represent information coding for a polypeptide:
  • Naturally occurring isolated regulatory DNA (e.g. promoters, enhancers, inhibitors, intergenic DNA) 
  • Isolated non-coding (e.g. "Junk") DNA 
  • Isolated non-coding RNA (e.g. miRNA) 
  • Naturally occurring isolated bacteria 
  • Naturally occurring isolated virus 
  • Isolated polypeptides 
  • Synthesised/modified polypeptides 
  • Isolated polyclonal antibodies 
  • Chemical molecules purified from natural sources (e.g. new chemical entities, antibiotics, small molecules) 
  • Isolated cells 
  • Isolated stem cells 
  • Probes 
  • Primers 
  • Isolated interfering/inhibitory nucleic acids (e.g. antisense, ribozymes) 
  • Monoclonal antibodies 
  • Fusion/chimeric nucleic acids 
  • Transgene comprising naturally occurring gene sequences 
  • Vectors/microorganisms/animals/plants comprising a transgene
IP Australia in assimilating the HCA judgment appears tro be grappling with confusion about discovery and invention, alongside questions about obviousness. Industry comments over the past week suggest that exclusion of cDNA is likely to be contentious.

JSCOT endorses ChAFTA

The Joint Standing Committee on Treaties has released an anaemic report on the China-Australia Free Trade Agreement (aka ChAFTA, recently noted here), which will presumably be echoed in an endorsement of the TPPA.

The report concludes -
China is currently Australia’s largest trading partner with two-way trade worth $160 billion in 2013-14. It is both Australia’s largest export market and its largest source of imports. On entry into force of China Australia Free Trade Agreement (ChAFTA), more than 85 per cent of Australia’s trade to China will have tariffs reduced to zero and, on full implementation, 95 per cent of trade will enter China duty-free. The Agreement is expected to promote closer economic integration and further enhance this significant bilateral economic relationship.
In theory, inclusive multilateral trade agreements are the preferred route to trade liberalisation and economic growth. However, bilateral, plurilateral and regional trade agreements are often a more practical way to achieve results. Australia is losing market share in the burgeoning Chinese economy because of existing preferential trade agreements with some of Australia’s major competitors such as New Zealand, Chile and ASEAN. The negotiation of a preferential trade agreement with China appears the most realistic option to combat Australia’s growing competitive disadvantage.
There has been considerable public debate on the advantages and disadvantages of entering into preferential trade agreements. Such agreements involve negotiations and compromise; inevitably some sectors of the economy gain and some lose. ChAFTA has proved more controversial than previous agreements, particularly regarding the provisions for labour mobility.
Labour mobility
The Committee acknowledges the extent of the public concern generated by the labour mobility provisions in ChAFTA and the underlying fear that Australian jobs are threatened. However, promoting temporary entry access to facilitate labour mobility—within the context of robust immigration and employment frameworks—is considered essential to support increased trade and investment.
The Committee recognises that increasing labour mobility comes with risks but is confident that, providing the relevant monitoring organisations are adequately resourced, those risks can be mitigated.
The Committee understands that the classification changes provided in ChAFTA will open up access to temporary entry to a broader range of workers. However, there is no ‘right of entry’ to Australia for Chinese workers. Safeguards remain in place to ensure strict entry criteria are adhered to and enforced.
No immigration system can entirely prevent deliberate unlawful activity. However, Australia’s system for ensuring compliance—including the Fair Work Ombudsman, corporate regulation and the Department of Immigration and Border Protection (DIBP)—can manage and contain these breaches. The Committee reiterates that it is essential to adequately resource all government organisations with responsibility for curbing unlawful immigration activity and recommends that the Government ensure that sufficient funding is provided for this purpose.
The Committee recommends that all government departments and agencies responsible for curbing unlawful immigration activity, particularly the Department of Immigration and Border Protection, are adequately resourced to carry out their functions effectively and efficiently.
Skills assessment
The Committee is satisfied that the administrative changes to the skills assessment process contained in the side letters to ChAFTA do not remove the need for skills assessment for affected occupations. Although the timing of skills assessment has been shifted, licence and regulatory requirements must be met before applicants can commence work in Australia.
Access and utilisation
If the full economic potential of the Agreement is to be achieved, the negotiation and implementation of ChAFTA is only the starting point. The Committee remains concerned that FTAs in general are underutilised and Australian business and industry are not accessing the new opportunities. According to recent research, only 19 per cent of Australian exporters make use of Australia’s existing FTAs.1 To take full advantage of ChAFTA, and the other FTAs Australia has negotiated, Australian business and industry must be provided with the education and support required to understand, navigate and comply with the FTAs’ complexities.
Many small businesses, in particular, have neither the time nor resources to dedicate to untangling the requirements of FTAs. Asked to identify the reason for the lack of utilisation of FTAs, HopgoodGanim lawyers said that there is a knowledge-gap that needs to be addressed:
We find that the main barrier is information and knowledge. A lot of clients do not actually know how to avail themselves of the benefits of those free trade agreements. To be honest, the process itself is not difficult, but it is a process of education, I believe.
In this regard, the Committee notes the work being undertaken by DFAT through the development of the FTA Dashboard and the continuing rollout of the FTA Seminars.
The Committee notes that ChAFTA Article 2.10.2 should also encourage utilisation and access of the Agreement:
In accordance with Article VIII of GATT 1994, neither Party shall impose substantial penalties for minor breaches of customs regulations or procedural requirements. In particular, no penalty in respect of any omission or mistake in customs documentation, which is easily rectified and obviously made without fraudulent intent or gross negligence, shall be greater than necessary to serve merely as a warning.
The Committee concurs with the Export Council of Australia (ECA) that, in accord with the spirit of this provision, the Department of Immigration and Border Protection (DIBP) should exercise leniency when dealing with minor or inadvertent compliance errors.
Business initiatives
The Committee is encouraged by the initiatives instigated by the business community to inform and educate stakeholders. HopgoodGanim hosts regular information events and have structured processes in place to alert their clients to the opportunities available through FTAs. The Australia China Business Council organises approximately 200 events annually around Australia, including business-to-business briefings and roundtables, to disseminate information.
ThomsonAdsett have had a long association with the Asian and Chinese markets and, some time ago, developed a professional tour education service, SAGE (Studying and Advancing Global Eldercare). The program provides an opportunity for professionals in the aged care sector to experience the market firsthand:
The purpose of [SAGE] was to gather together professionals and senior leaders in the industry and travel to different countries to look at what they do in their marketplaces. We have now been to China four times ... and in that process we have developed a very strong relationship with the China National Committee on Ageing, which is one of their peak bodies; it represents and develops policy for China in this space.
The ECA has developed an online FTA Tool designed to assist the trading community to understand the basics of FTAs.
The Committee acknowledges the work currently being done by Austrade to educate business and industry regarding FTAs. The Committee received positive feedback on Austrade’s relationship with business and industry and its existing initiatives. For example, ANZ singled out Austrade’s report on E-commerce in China – a guide for Australian business for special mention as it provides a guide to preparing, selling and distributing a product for the Chinese market as well as explaining Chinese regulation.
Businesses indicated Austrade’s pivotal role in promoting the Australian brand in foreign markets:
Austrade is principally used ... as a vehicle for marketing these programs in countries like China, Korea and Japan. They do a good job of branding Australian education as a high quality provider, which I think is one of the reasons why Australia punches above its weight internationally. So my personal opinion and my experience with them is that they are easy to engage with and do a good job.
However, there is some concern that the demands imposed by Australia’s growing FTA commitments is putting strain on Austrade’s ability to provide targeted, sector specific information. ThomsonAdsett praised Austrade’s role in assisting the company in the past but warned that more will need to be done to ensure that frontline staff have the skills and knowledge to be useful in the complex Chinese market:
... increasingly Austrade cycles staff through its offices quite regularly. I have more knowledge than almost all the staff and I have been telling them where to go rather than the reverse ... the government should ensure that, through Austrade, trade offices are appropriately skilled and knowledgeable in the aged-care and healthcare services sector and understand clearly the different roles and responsibilities of facility operators and professional advisors.
The Committee recognises the central role that Austrade plays in both facilitating access to markets for Australian exporters and promoting the Australian brand in those markets. The Committee recommends that Austrade is sufficiently resourced to support dedicated officers, with the sector specific expertise required to provide information and assistance to access the Chinese market.
The Committee recommends that Austrade is sufficiently resourced to support dedicated officers, with the specific expertise required to provide information and assistance to individual sectors to facilitate access to the Chinese market.
Non-tariff barriers
The Committee recognises that non-tariff barriers continue to present the biggest impediment for many sectors wishing to take advantage of ChAFTA. Although many of these barriers will require government-to- government negotiations and may take considerable time to address, the Committee is aware that some domestic issues can be directly addressed by the Australian government.
The Committee understands that the Department of Agriculture has an ongoing program in place to address non-tariff barriers including sanitary and phytosanitary (SPS) issues, as well as import protocols and export processor accreditation, and that delays are often determined by the priorities of foreign governments. Nonetheless, the Committee urges the Department to make every effort to expedite the negotiation of the required import protocols and export processor accreditation and the removal of SPS barriers.
The Committee recommends that the Department of Agriculture develop a set of performance indicators to measure the Department’s progress in tackling non-tariff barriers and ensure external accountability. The Committee also recommends that both the Department of Agriculture and the relevant sections of DFAT are adequately resourced to ensure that work on reducing non-tariff barriers is prioritised and effective progress made as quickly as possible.
The Committee recommends that: the Department of Agriculture develop a set of performance indicators to measure progress on the removal of non-tariff barriers; and the Department of Agriculture and the relevant sections of the Department of Foreign Affairs and Trade are adequately resourced to enable effective progress to be made in removing non-tariff barriers.
The Financial Services Council reiterated issues it has previously brought to the Committee’s attention regarding the need for domestic regulatory reform to facilitate access to foreign markets.
The Committee recommends that the Government take steps to complete the implementation of the remaining recommendations of the 2010 Johnson Report and tax-related initiatives such as the development of a collective investment vehicle regime and the reduction of withholding tax rates.
Recommendation  ... the Australian Government prioritise implementation of the recommendations of the Review of the Tax Arrangements Applying to Collective Investment Vehicles report and Australia as a Financial Centre — Building on our Strengths (the Johnson Report) in order to achieve full utilisation of the China Australia Free Trade Agreement for Australian financial services.
Antimicrobial resistance
The Committee has been alerted to the dangers presented to the health security of Australians by antimicrobial resistance. The Committee recognises the link between microbial resistance and Australia’s current regulatory framework which enables Australia to control antibiotic use. The Committee is aware that this regulatory framework must not be threatened by Australia’s commitments under FTAs and will be monitoring this area during its examination of future agreements. Framework for review
The Committee welcomes the framework for review built into ChAFTA and urges government, business and industry to fully utilise the framework to address the issues that have been raised during this inquiry. In particular, the Committee encourages government to ensure that comprehensive, structured consultation processes are in place to guarantee effective input from stakeholders.
The Committee acknowledges the widespread community disquiet that has been generated by ChAFTA but considers that many of the concerns are unfounded. The Committee recognises that broad sections of Australian business and industry are expected to receive substantial benefit from greater access to one of the world’s largest economies.
The Committee supports the Treaty and agrees that binding treaty action should be taken.
The Committee supports the Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China and recommends that binding treaty action be taken.

Consumer protection and health insurance

The Australian Competition and Consumer Commission has released Information and informed decision-making in private health insurance - A report to the Australian Senate on anti-competitive and other practices by health insurers and providers in relation to private health insurance For the period of 1 July 2013 to 30 June 2014, its 16th Private Health Insurance report on the private health insurance industry, reflecting a requirement that the Commission report to the Senate on "any anti-competitive practices by health insurers or providers, which reduce the extent of health cover for consumers and increase their out-of-pocket medical and other expenses".

The report is described as "highlighting concerns about the impact of complex information on consumers and the market" and revealing "the increasing challenges facing consumers in choosing between a large number of policies with greater exclusions".

The ACCC draws three conclusions:
  • There are market failures in the private health insurance industry which reduce consumers’ ability to compare policies and make informed choices about their future medical needs. 
  • Existing regulatory settings can change consumers’ incentives in purchasing health insurance. As insurers respond to market demands for affordable policies there are greater risks of unexpected out-of-pocket costs for consumers. 
  • Current practices by some insurers are at risk of breaching the consumer laws. 
The ACCC comments
the complexity of private health insurance policies can affect consumers’ ability to make informed decisions about the policy that best suits their needs. Whether a consumer is purchasing health insurance for the first time, or reviewing and renewing a policy after many years, they have to navigate through a range of issues to make an informed decision.
Consumers may encounter significant difficulty in determining what a procedure will cost and how the relationship between their insurer and the relevant practitioner or hospital will affect this cost. It is in the interests of both consumers and industry to be as clear and transparent as possible so that consumers who are purchasing insurance can make the best decisions about their level of coverage.”
It states
While the report addresses issues specific to the reporting period, it also gives broader consideration to the enduring impact of these issues on consumers. This approach aligns with the ACCC’s 2015 Compliance and Enforcement Policy, which identifies competition and consumer issues in the health and medical sectors as a priority.
Almost one in two Australians hold a private health insurance policy for all or part of their hospital treatment costs. It represents a significant financial investment for many consumers and their families. The ACCC has previously found that the industry is characterised by information asymmetry and complexity. These findings have been replicated in this report.
Competition, complexity and consumer engagement
In general, competition delivers efficient market outcomes where consumers engage with the market and reward suppliers who deliver goods and services that meet their needs. This drives lower prices, better quality products, greater innovation and increased efficiency. However, where there is market failure, competition may not deliver the most efficient outcomes.
It appears there are a number of market failures in the private health insurance industry. In particular, imperfect and asymmetric information impede consumers’ ability to make choices that are likely in their best interests. These problems mean that consumers experience difficulty in determining the effectiveness of various policies given their uncertain future health needs, which makes it difficult for consumers to choose the appropriate level of cover. This in turn affects competition in the industry.
The complexity of the private health insurance system, and its impact on consumers, was a frequent theme of submissions to the ACCC from both consumer and industry bodies. A range of factors contribute to this complexity, including regulatory settings, the sheer number of policies available, the range of potential policy benefits and exclusions, preferred provider arrangements, policy variations and differing terminology between funds which makes comparison difficult.
When faced with such complexity consumer decision-making is affected and consumers are less inclined to review and change policies; that is, consumers become less engaged market participants. Reduced consumer engagement impacts competition, as the incentives for suppliers to offer better policies are reduced, and increases the likelihood of decreasing confidence in the perceived value of policies.
Stakeholders raised a number of concerns about industry practices that impact consumer decision-making, including: • a lack of sufficient and comparable information before purchase • information or terminology that is ambiguous or difficult to interpret • inconsistent information • difficulty locating relevant information • consumer uncertainty about what questions to ask.
As a result, some consumers find it difficult to understand the extent of their cover, the costs they are likely to incur if they use a health service and determining who to seek information from (insurer or health provider), which can exacerbate the problem of information asymmetry.
This may be leading to disengaged consumers. The ACCC’s research indicates that consumers are engaged at the commencement of the purchasing process. However, significant numbers of consumers who contemplate changing their insurance arrangements fail to do so. The reasons for this are varied, but the research suggests that one significant reason is the complexity faced by consumers when undertaking a meaningful comparison process.
Price is a critical factor in many consumers’ decision-making, particularly as premiums are increasing with rising health care costs. The regulatory incentives alongside uncertainties about future health care needs, as well as policy complexities may drive consumers towards lower priced policies than they would otherwise prefer. While price is a legitimate means for consumer decision-making, there are concerns that some consumers are not fully considering the trade-offs between the costs and benefits of the various policies on offer. This is leading to some consumers facing detriment when they come to subsequently claim under the policy and find their procedure is not covered. This is of concern given recent reports that suggest that insurers are encouraging consumers more broadly to downgrade their cover to secure cheaper premiums. As a result, consumers are finding themselves more often without the cover they expected.
The majority of consumers surveyed as part of the quantitative research commissioned by the ACCC indicated general satisfaction with their private health insurance. However, the research highlighted that most consumers do not frequently access their private health insurance and consumer satisfaction is often based on the overall cost of the policy. For some consumers this may mean that their understanding of the relevant inclusions and exclusions of their policy will only be tested when the time comes to make a claim. This is of particular concern given our research indicates that insurers can often change the coverage of their policies or make other changes that impact the benefits available and do not always communicate changes effectively to consumers.
The submissions identified a significant disconnect between consumers’ expectations of the services and rebates they are entitled to receive under their policy, and the reality of the benefits their policy provides. Complaints to regulatory and complaint bodies about unexpected out-of-pocket expenses and ‘bill shock’ are also rising. The ACCC has also received submissions about certain conduct by insurers that may potentially breach the Australian Consumer Law (ACL). For example, some of the conduct may be at risk of misleading consumers. Such conduct has the ability to harm consumers and also competition.  ...
The role of the ACCC 

The ACCC is committed to increasing awareness among consumers about the protections offered by Australia’s consumer laws. We consider it is in the interests of both consumers and insurers to be as clear and transparent as possible so that consumers purchasing insurance can make informed decisions about their level of cover. It is also important that insurers do not assume that compliance with specific private health laws and regulations alone will satisfy obligations that arise under the ACL.
Current trends in the private health insurance industry warrant a closer examination of the conduct of private health insurers and health providers/practitioners. It also warrants consideration of these issues by policy makers to ensure greater transparency and decreased information asymmetry. While the ACCC has an overarching consumer protection role that encompasses the private health insurance sector, we do not have policy responsibility for many of the issues raised in this report.
In line with the ACCC’s current focus on the health and medical sector, we will be closely reviewing some practices in the health insurance industry. The ACCC will consider any issues identified in accordance with the ACCC’s Compliance and Enforcement Policy.
Some of the issues that we are currently considering include:
  • bold headline claims that are heavily qualified in fine print, for example: ‘no gap’ or ‘100% cover’, when significant qualifications apply 
  • misleading conduct through the use of industry terms or phrases that are inconsistent with plain language or consumers’ understanding of commonly used words 
  • the provision of incomplete information that creates the representation that there is broader insurance cover than the consumer has 
  • use of complicated terms and conditions, exclusions and practices that inhibit a consumer’s capacity to make appropriate comparisons and which risk misleading consumers or exposing them to unfair claims assessments.
The ACCC recognises that a number of efforts have been made by industry and government over recent years to address these issues. However, as this report makes clear, further work to enhance consumer engagement is needed.
In response it suggests that -
there to be three key concerns arising from its research on the private health insurance industry:
  • First, there are market failures due to asymmetric and imperfect information. This leads to complexity in private health insurance policies, which reduce consumers’ ability to compare policies and make informed choices. Further, consumers have limited information about their likely future health needs, which may lead to consumers underestimating their future medical needs and instead focusing on the immediate costs and benefits of private health insurance. 
  • Second, existing regulatory settings can change consumers’ incentives in purchasing private health insurance and drive insurers to offer products to primarily reduce consumers’ tax liabilities, rather than also focussing on consumers’ current and future medical needs (which are difficult to predict). As funds respond to market demand for affordable policies, there are increasing policy limitations and exclusions leading to higher numbers of consumers having policies with less cover than they expected. This leads to an increased risk of consumers facing unexpected out-of-pocket expenses and general dissatisfaction with the system. We accept that some consumers in purchasing private health insurance may only be seeking to reduce their tax burden and/or the risk of the LHC loading. However, they still expect basic cover from their purchase. 
  • Third, while health insurers may be strictly compliant with the requirements of the Private Health Insurance Act and the Code, the research has revealed examples where representations by insurers to consumers, including when entwined with policy variations, may be at risk of breaching the consumer laws.
The ACCC enforces competition and consumer law; it is for others to ensure that the regulatory settings are fit for purpose. This report shows though, that there is a market failure in the private health insurance sector and, while many attempts have been made to address this in the past, more is needed if consumers are to have the information they need to make informed choices and allow for effective competition between health insurers.
As is clear from the report, the regulation of the private health insurance sector involves a complex array of legislation and co- and self-regulation. This report has aimed to highlight consumer and stakeholder concerns with the current system; it does not provide a road map for reform (which could be approached by industry driven changes, such as through the Private Health Insurance Code or by changes to private health insurance legislation). Nevertheless, stakeholders repeatedly made a number of suggestions that should be highlighted. They include:
  • Review of the SIS requirements to ensure they serve their purpose as an effective information and comparison tool, with a focus on balancing comparability and thoroughness without overwhelming consumers. Modern technology may help here. 
  • If reform of the SIS is to occur the ACCC would recommend that any proposed reforms be consumer tested through a pilot study before being finalised. Such a review should also look at the best means of providing the SIS to encourage consumers to read it. 
  • Standardisation of terminology used in promoting policies and describing levels of coverage and specific procedures. For example, standardisation around terms such as ‘known gap’ and ‘no gap’ policies, top, medium or low cover and a consistent definition of procedures such as ‘plastic and reconstructive surgery’ so it is clear what the inclusions and exclusions of policies are. 
  • Review of the requirements for minimum policy coverage given the growth of restrictions and exclusions. 
  • The functionality and promotion of www.privatehealth.gov.au. This is a valuable and independent site and the one place where all private health insurance policies can be compared. With the Commonwealth Ombudsman recently taking over responsibility for the site, an investment in improving its functionality to enable consumers to compare on factors beyond price would be beneficial. Benefits would also flow from better promotion of the site to consumers. 
  • Review of the triggers for requiring insurers to inform consumers about any changes that may affect their out-of-pocket expenses or choice of hospital or practitioner and how these changes are communicated. As with any changes to the SIS, the ACCC would recommend that any review should also look at the most effective ways of communicating this information and run a pilot to test effectiveness prior to making formal changes. 
  • Considering how consumers can more easily calculate their likely out-of-pocket expenses before committing to a policy and/or procedure. Intelligent, interactive tools should be considered to assist with this. Stakeholder submissions raised suggestions that could be explored to advance this goal, including:
  • health providers/practitioners providing standardised cost estimates to consumers that include specific information such as MBS item numbers for each part of the procedure 
  • health providers/practitioners providing average or maximum rates for all procedures for the MBS item numbers covered 
  • insurers providing a detailed and easily searchable schedule of benefits and services they cover, including specific details about MBS item numbers, eligible aids/appliance, inclusions and exclusions, health practitioners eligible to provide services and referral requirements and item limits.


'Lost & Found: Intellectual Property of the Fragrance Industry; From Trade Secret to Trade Dress' (USC Law Legal Studies Paper No. 15-27) by Charles Patrick Cronin comments
The foundations of the modern fragrance industry can be traced to fragrance producers established in the south of France during the sixteenth century. Through the nineteenth century, French flower farms, essential oil extractors, and manufacturers of branded fragrances, were family enterprises, and it was relatively easy for these businesses to maintain proprietary information about distillation techniques, the composition of branded perfumes, etc.
The inexorable consolidation in the fragrance manufacturing industry over the past century has resulted in an industry now dominated by a handful of large fragrance multinationals that are increasingly vulnerable to misappropriation of their intellectual property, and particularly of their fragrance formulas developed at significant expense. The itinerancy of perfumers today has engendered unease among these fragrance houses as to the security of their most valuable assets: formulas and other trade secrets that can now be readily obtained, copied, and shared by employees with access to relevant information stored on the company’s servers.
Even more disconcerting today to the fragrance industry is the potential of analytic technologies to reveal the chemical composition of fragrances. Unlike digital technologies that have similarly discombobulated the media industry because they enable surreptitious copyright infringement, chemical analytic technologies do not enable the illegal acquisition or distribution of intellectual property. In fact it is generally lawful not only to use these technologies to obtain the fragrance formulas of competitors, but also to use the acquired information to develop competing products.
Concurrent with the erosion of the fragrance industry’s trade secrets has been the increasingly widespread deployment of fragrances as a component of multi-sensory trade dress used to brand a wide range of commercial spaces including retail stores, cinemas, hotels, etc. This article proposes that while trade secrets underlying the creation of fragrances have lost much of their efficacy, trademark and unfair competition law may offer a hitherto mostly unrealized legal protection of the deployment of fragrances as trade dress. After considering the limited efficacy of copyright and patent protection for fragrances the article canvasses the growing use of fragrance as a component of trade dress, and the potential legal protection, and financial implications, of trademark and unfair competition law.

19 October 2015

Decriminalisation of affinity

'The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States' by Marie-Amelie George in (2015) 24(2) Journal of the History of Sexuality 225-61 comments
 Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978.
This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy. State commissions evaluating sexual psychopath laws relied on Kinsey’s data to argue that the statutory schemes were not based on scientific evidence and therefore needed to be amended or repealed. The majority of their reports commented on the inappropriateness of including consensual sodomy under the umbrella of psychopathy, thereby separating homosexuality not just from pedophilia but also from violence. Several commissions also questioned whether consensual sodomy should be criminalized at all. The sexual psychopath commission reports influenced the ALI’s decision to decriminalize sodomy, presaging and contributing to a significant change in American criminal law, as members of the MPC committee drew upon the commission debates in their arguments for the decriminalization of consensual sodomy. The state commission reports, by providing a forum for politicians and lawyers to develop and express a reformist viewpoint, created a discourse in favor of changing criminal laws on consensual sodomy. This thus article identifies the missing link between a legal regime that characterized homosexuality as psychopathy and one that adjudicated consensual homosexual sodomy as noncriminal conduct.

Judicial Appointments

The Australasian Institute of Judicial Administration has released its 12 page 'Suggested Criteria for Judicial Appointments' [PDF], centred on prospective members of the judiciary having the following criteria have
1. Intellectual Capacity
• Legal expertise
• Litigation experience or familiarity with court processes, including alternative dispute resolution
• Ability to absorb and analyse information
• Appropriate knowledge of the law and its underlying principles, and the ability to acquire new knowledge.
2. Personal Qualities
• Integrity and independence of mind
• Sound judgement
• Decisiveness
• Objectivity
• Diligence
• Sound temperament
• Ability and willingness to learn and develop professionally and to adapt to change
3. An Ability to Understand and Deal Fairly
• Impartiality
• Awareness of and respect for the diverse communities which the courts serve and an understanding of differing needs
• Commitment to justice, independence, public service and fair treatment
• Willingness to listen with patience and courtesy
• Commitment to respect for all court users
4. Authority and Communication Skills
• Ability to explain the procedure and any decisions reached clearly and succinctly to all those involved
• Ability to inspire respect and confidence
• Ability to maintain authority when challenged
• Ability to communicate orally and in writing in clear standard English
5. Efficiency
• Ability to work expeditiously
• Ability to organise time effectively to discharge duties promptly
• Ability to manage workload effectively
• Ability to work constructively with others
6. Leadership and Management Skills
• Ability to form strategic objectives and to provide leadership to implement them effectively
• Ability to engage constructively and collegially with others in the court, including courts administration
• Ability to represent the court appropriately including to external bodies such as the legal profession
• Ability to motivate, support and encourage the professional development of others in the court
• Ability to manage change effectively
• Ability to manage available resources

National Health Practitioner Ombudsman

The latest report of the National Health Practitioner Ombudsman and Privacy Commissioner, an entity that is independent of the Commonwealth Privacy Commissioner and has attracted little attention (arguably resulting in a low number of complaints), states
The office of the National Health Practitioner Ombudsman and Privacy Commissioner is an independent, statutory agency established under the Health Practitioner Regulation National Law (the National Law) as enacted in participating states and territories. The office provides ombudsman, privacy and freedom of information services, and has an important role in promoting public and health practitioner confidence in the administration of health practitioner regulation. ...
The National Health Practitioner Ombudsman and Privacy Commissioner was established on 1 July 2010, to coincide with the introduction of the National Law. In the past, the office had difficulties with resourcing and effectively managing its statutory responsibilities.
Following an independent review in early 2014, the Australian Health Ministers’ Advisory Council appointed Ms Pauline Ireland as Ombudsman. Ms Ireland employed a number of staff to manage the complaints backlog and set up improved complaints handling and financial management procedures for the office. In 2014, the Australian Health Ministers’ Advisory Council also agreed to provide funding of $1.5 million a year to resource the office, as recommended by the independent review.
When I started my appointment in late 2014, I was pleased to find that due to the work of Ms Ireland and staff, the complaints backlog had been significantly reduced and the office was operating effectively and efficiently.
In mid May 2015, the office moved to more suitable accommodation at the premises of the Victorian Department of Health and Human Services at 50 Lonsdale Street, Melbourne. This co-location will reduce administration costs as it allows us to use the Department of Health and Human Services infrastructure, services and systems on a shared services basis. Work on the complaints backlog is now complete, with 350 complaints, including a number of older complex and difficult cases, finalised during 2014–15. ...
Now that the complaints backlog has been finalised, the office can deal with complaints as they are received and focus on longer-term priorities. The recruitment of two suitably qualified and experienced staff members has now been completed, which will ensure the office has sufficient expertise to manage its statutory and administrative requirements now and in the future.
Longer-term priorities for the office include: • sourcing a complaints management and reporting system • updating the office website.
A complaints management and reporting system will allow us to better manage our workload and provide accurate monitoring and reporting. It will also enable us to deal with complaints more effectively and efficiently and improve complaint-handling timeframes. Updating and improving our website will provide better information to stakeholders, including health practitioners and the public, and make the site more accessible and user friendly. It will also raise the profile of the office and our services, particularly outside Victoria.
A key role for the National Health Practitioner Ombudsman and Privacy Commissioner is promoting confidence in the national regulatory scheme, particularly in relation to the administrative actions of the Australian Health Practitioner Regulation Agency and the 14 national boards that regulate health professionals. We act as an independent and impartial third-party reviewer in relation to complaints about aspects of the national scheme. We also provide feedback to the Australian Health Practitioner Regulation Agency and the national boards about systemic issues identified through complaints and assist them to improve their processes.
We aim to provide a complaints handling service to consumers and health practitioners that is independent, objective, accessible and timely. Many of the complaints the office receives are of a complex and difficult nature. This means we need staff who are well qualified and experienced in investigation and complaints handling. The office has a relatively narrow jurisdiction, which focuses on the administrative actions of the Australian Health Practitioner Regulation Agency and the boards in respect of their regulation of Australian health practitioners. Administrative actions include actions taken by the Australian Health Practitioner Regulation Agency to assess and investigate notifications under the National Law, and the way the relevant board makes decisions on matters raised. We examine whether due process is followed and if relevant considerations are taken into account.
As Ombudsman, I have no power to overturn the decisions of the Australian Health Practitioner Regulation Agency or a board. However, based on evidence, I can raise issues with these bodies and make recommendations for them to consider. The office also has jurisdiction to investigate complaints about privacy and freedom of information issues, but these complaints currently form only a very small portion of our complaint caseload.
The majority of complaints concern the administrative actions of the Australian Health Practitioner Regulation Agency and the boards in relation to notifications about matters such as the health, conduct or performance of health practitioners. Other issues include complaints by health practitioners in relation to their registration and a small number of complaints about privacy issues. In 2014–15, almost half (47 per cent) the complaints were lodged by members of the public in relation to the way their notification about a health practitioner was handled by the Australian Health Practitioner Regulation Agency and the boards. Twenty-three per cent were lodged by health practitioners regarding the way a notification about them was handled by the Australian Health Practitioner Regulation Agency and the boards. Twenty-four per cent of complaints were from health practitioners regarding problems with their registration.
The office received a total of 75 complaints during 2014–15, which is a significant decline from the 196 complaints received in 2013–14. The decline in complaints in 2014–15 may be due to: • improved timeframes and communication with notifiers and registrants by the Australian Health Practitioner Regulation Agency • national boards not making significant changes to registration requirements during this time • finalising many older complaints brought to the Australian Health Practitioner Regulation Agency for review after the introduction of the National Law on 1 July 2010.
In addition, we have worked more effectively with the Australian Health Practitioner Regulation Agency and the boards to provide feedback about complaints and to identify process improvements, which may assist in reducing the number of complaints.
The report explains that
The National Health Practitioner Ombudsman and Privacy Commissioner is responsible for providing ombudsman, freedom of information and privacy oversight of the actions of the national agencies established under the National Law.
The National Law confers specified jurisdiction on the National Health Practitioner Ombudsman and Privacy Commissioner that is derived from the Ombudsman Act 1976 (Cth) (the Ombudsman Act), the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth). These Commonwealth Acts are modified by the National Law Regulation to make them suitable for the National Registration and Accreditation Scheme for Health Practitioners (the national scheme), noting in particular that the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) both apply as if the amendments made to these Acts by the Freedom of Information Amendment (Reform) Act 2010 (Cth) had not taken effect. For efficiency, the separate Ombudsman and Privacy Commissioner roles are combined in the single office of the National Health Practitioner Ombudsman and Privacy Commissioner.
These arrangements ensure the accountability, transparency and responsiveness of the regulatory system...
These arrangements ensure the accountability, transparency and responsiveness of the regulatory system administered by the national agencies for the national scheme, namely: • the Australian Health Practitioner Regulation Agency • the national boards (Aboriginal and Torres Strait Islander Health Practice, Chinese Medicine, Chiropractic, Dental, Medical, Medical Radiation Practice, Nursing and Midwifery, Occupational Therapy, Optometry, Osteopathy, Pharmacy, Physiotherapy, Podiatry and Psychology) • the Australian Health Practitioner Regulation Agency’s Agency Management Committee • the Australian Health Workforce Advisory Council.
The Australian Health Practitioner Regulation Agency is the national agency responsible for administering the national scheme. This includes supporting the national boards to exercise their functions, which include: • registering qualified and competent health practitioners and, if necessary, imposing conditions on their registration • developing standards, codes and guidelines for the 14 registered health professions • approving accredited programs of study • overseeing the assessment and investigation of notifications (complaints) about registered health practitioners • establishing panels to conduct hearings about the performance or health of health practitioners and, where necessary, referring matters to the responsible tribunal in a participating jurisdiction.
The 14 national boards are the ultimate decision makers regarding whether a person is qualified and suitable for registration as a health practitioner, or whether action should be taken against a registered health practitioner following a notification (complaint) about the practitioner’s professional conduct.
However, some of the boards’ functions are delegated to the Australian Health Practitioner Regulation Agency, which is why the National Health Practitioner Ombudsman and Privacy Commissioner must generally take into account both the actions of the Australian Health Practitioner Regulation Agency and the national boards when considering administrative processes that are the subject of a complaint.
Notifications (complaints) under the national scheme
When notifications about matters such as the health, conduct or performance of a health practitioner are received, the relevant national board’s role is to assess the matter to determine whether the health practitioner’s conduct may warrant some action (such as cautioning the practitioner, cancelling or suspending their registration, or imposing conditions on their registration). To assist the national boards, the Australian Health Practitioner Regulation Agency makes inquiries and gathers information to inform the boards’ consideration of the issues.
The National Health Practitioner Ombudsman and Privacy Commissioner’s role is to investigate administrative actions the Australian Health Practitioner Regulation Agency and the national boards have taken in relation to a notification. Administrative actions include the actions the Australian Health Practitioner Regulation Agency takes to assess and investigate notifications under the National Law, and how a board makes decisions after considering a matter. The National Health Practitioner Ombudsman and Privacy Commissioner examines whether the Australian Health Practitioner Regulation Agency and the board followed due process and took account of relevant considerations. We do not have the power to overturn decisions of the Australian Health Practitioner Regulation Agency or the national boards. However, based on evidence we can raise issues with these agencies and make recommendations for them to consider.
The National Law does not give the National Health Practitioner Ombudsman and Privacy Commissioner, the Australian Health Practitioner Regulation Agency or the national boards the ability to determine whether compensation should be paid to individuals. ...
The National Health Practitioner Ombudsman and Privacy Commissioner cannot:
  • change the outcome of an administrative action or decision taken by the Australian Health Practitioner Regulation Agency or a national board 
  • force the Australian Health Practitioner Regulation Agency or a national board to review or change a decision 
  • provide legal advice or act as an advocate for anyone aggrieved by a decision or action taken by the Australian Health Practitioner Regulation Agency or a national board 
  • recommend that the Australian Health Practitioner Regulation Agency or a national board pay compensation 
  • force the Australian Health Practitioner Regulation Agency or a national board to release a document determined to be exempt under the Freedom of Information Act 
  • recommend that the Australian Health Practitioner Regulation Agency or a national board take an action that is not available to it under the National Law.

18 October 2015

Reporting Animal Harm

'Mandated Reporting of Suspected Animal Harm by Australian Veterinarians: Community Attitudes' by Donna Acutt, Tania Signal and Nik Taylor in (2015) 28(3) Anthrozoƶs: A multidisciplinary journal of the interactions of people and animals 437-447 comments
 Research demonstrates that animal abuse is linked with various forms of interpersonal violence and that veterinarians themselves are concerned about this link. However, Australian veterinarians are not currently mandated to report cases of suspected animal abuse (AA), a position outlined by the Australian Veterinary Association under their “Animal Welfare principles and philosophy–Animal Abuse” section. A range of barriers to reporting suspected abuse cases have been identified. Barriers specifically mentioned in the AVA statement regarding the non-mandatory reporting stance were presented to a community sample of 209 participants. While 161 (77%) indicated they were aware that certain professionals were mandated to report animal abuse, notably 76% of these (n=123) indicated (incorrectly) that veterinary professionals in Australia were so mandated. Over half of the participants (n=117, 58%) indicated that “Concerns about the continued welfare of the animal victim” was, in their opinion, the most significant barrier to introducing mandatory reporting for the veterinary profession in Australia. The implications of community opinion regarding veterinarians and mandated reporting, along with acknowledgement of barriers and potential consequences of mandated reporting, are discussed.
The authors state
Veterinarians are health professionals and their unique role in caring for the health and welfare of the nonhuman population potentially means they have a role to play in the identification and possible prevention of interpersonal violence directed at both nonhuman animals and humans (McHendrix 2009). While important for animal welfare alone, the positive identification by veterinarians of non-accidental animal mistreatment may also herald other forms of mistreatment within human relationships including domestic violence (DV) and child abuse (Gallagher, Allen and Jones 2008; Williams et al. 2008).
As outlined by the Australian Veterinary Association’s (AVA) statement under “Animal welfare principles and philosophy–Animal abuse” (AVA 2013, Policy 1.2), veterinarians in Australia are not currently mandated to report suspected cases of animal abuse (AA) or child abuse (which in some Australian states includes mandated reporting of suspected exposure to domestic violence, CFCA Fact Sheet 2014). Although the AVA recommends the reporting of suspected AA to the relevant authorities, members are under no legal obligation to do so. The primary—and understandable—justification for this stance is the concern that members of the public will be reluctant to bring ill or injured animals to the attention of veterinarians for fear of being reported, thus placing abused animals at further risk (AVA 2013, Policy 1.2). This echoes the concerns raised by the American Medical Association when mandated reporting of suspected child abuse was implemented in 1966 (Vulliamy and Sullivan 2000). Two studies, one based in the US (Ascione and Barnard 1998) and the other in Australia (Green and Gullone 2005), have investigated potential barriers to mandated reporting of AA as perceived by veterinarians. Both studies identified three significant barriers: 1) inadequate training in recognizing and definitively identifying AA or neglect, 2) ethical and legal obligations in the context of client/patient confidentiality, and 3) lack of knowledge regarding relevant community-based support agencies for all concerned parties (i.e., services for perpetrators and/or possible victims of family violence). Potential loss of income was also noted as a possible factor behind not reporting suspected AA both in Australia and New Zealand (Green and Gullone 2005; Robertson 2010).
Identification of AA can be challenging for a number of reasons including the often covert/solitary nature of the abuse, controlling behaviors of the abuser, embarrassment/shame on behalf of the witnessing owner/caregiver, as well as the aforementioned definitional issues regarding what constitutes AA (Ascione 2005; McPhedran 2009). However, members of society in close proximity to the perpetrator (e.g., parents, family members, neighbors, teachers; Dadds, Turner and McAloon 2002) as well as community health professionals who may come into contact with the family are in a unique position to identify AA (Flynn 2000a; Balkin, Janssen and Merck 2013). Various community professions have been identified as important stake- holders (Lawrie 2008) vital to the identification and prevention of AA, namely, law enforcement agencies (particularly police), animal protection officers, teachers, social workers, animal management officers (e.g., dog control), environmental health workers (in Indigenous communities), and veterinarians. Lawrie argues that these community professionals have the potential to be in a prime position to witness first-hand the confirmation and potential consequences of animal/human abuse—perhaps without even recognizing the relationship between non- accidental injury of animals and other forms of family violence.
The repercussions of AA, whist initially presenting as personal and private, have the potential to negatively impact the community (Flynn 2000a; Baldry 2003; Wright and Hensley 2003). Australian researchers, Fawcett and Gullone (2002), suggest that patterns of AA mirror those of DV, in that animals are just as likely as human victims of DV to experience physical or sexual abuse, neglect, and/or psychological abuse. Human victims of DV, overwhelmingly women and children, may be further traumatized through the actual mistreatment and/or threatened mistreatment of their pets. This has implications for the management of animals in violent situations as well as for the relationship between family members and their animals, which may well be strengthened due to their joint experiences of abuse (Flynn 2000a; 2000b; 2012). Conversely, those experiencing family violence may take out their frustrations and anger on the animal, a behavior more commonly seen in children of families who experience DV (Fawcett and Gullone 2002). Fawcett and Gullone (2002) argue that the recognition of the relationship between AA and forms of interpersonal/familial violence by community welfare organizations (specifically, animal welfare agencies, child welfare groups, DV experts, and law enforcement organizations) is needed, concluding that there is a need to promote cooperation, cross-reporting, and cross-training between community welfare agencies and public health professionals (both human and nonhuman focused).
The importance of cross-reporting within domestic (or family) violence situations has been highlighted by a number of researchers. For example, Volant et al. (2008) interviewed 102 women currently accessing DV services in Victoria, Australia and 102 matched “community” women without a history of DV in their presenting relationship; all women in the study had a pet. Similar to previous (American) studies (e.g., Ascione et al. 2007) they found there was a significantly higher prevalence of threatened and/or actual AA in the women accessing DV services. The children of these women were also more likely to have observed and/or engaged in AA than those children from the community group. Importantly, the study also reinforced previous findings that women often delay leaving DV situations based on concerns for their animal’s continued welfare, with the attendant possibility of an escalation in violence (e.g., Ascione, Weber and Wood 1997; Taylor, Signal and Stark 2006). Volant et al. concluded that the positive identification of “at risk” members of the community (both human and animal) by community professionals (i.e., veterinarians, animal welfare agents, police, child welfare agents, counselors) may enable the negative consequences of AA and the potential for interpersonal violence to be addressed more effectively.
However, when Tiplady, Walsh and Phillips (2012) interviewed 26 women with experience of DV to examine the effects of intimate partner violence (IPV) on the welfare of companion animals, only two participants (8%) reported specifically mentioning AA to the veterinarian treating their animal despite a number of animals reportedly being euthanized due to injuries suffered. The remaining 24 women (92%) stated that they would be hesitant about discussing AA with a veterinarian. Several reasons were given for this reluctance: 1) general shame regarding the abuse, 2) a fear of being judged by the veterinarian, sometimes combined with a fear the veterinarian would not believe them, 3) a fear of the consequences if the abuser found out they had spoken to a veterinarian, and 4) some women simply did not feel as though they could talk with their veterinarian about AA. Thus, it is clear that there are numerous barriers for those experiencing interconnected AA and familial violence in approaching veterinarians and/or reporting the AA. However, research also demonstrates that support from the human services addressing family violence is often limited in regards to AA (e.g., Taylor, Signal and Stark 2006). This can leave vulnerable women and children who have companion animals with few, or no, options when seeking to leave violent situations. Consequently, it is important to look at multiple ways that this might be addressed. One such way is through veterinary reporting schemes. However, this is not without its own set of problems. As well as reluctance to approach veterinarians by women ex- periencing linked animal abuse and family violence, there are barriers from the veterinarian’s point of view and these are often exacerbated when considering mandatory reporting. As Gullone and Clark (2008) point out, most studies into the feasibility of mandatory (cross) reporting of animal and human directed abuse between various human and animal welfare organizations have occurred in the US, Canada, and the UK. These studies have resulted in the promotion of legislative changes surrounding AA, and consequentially policies regulating the (cross) reporting of AA in conjunction with DV and child abuse have been initiated. These policies govern child protective service providers, social welfare groups, and animal health professionals (e.g., AVMA 2014). According to the AVMA (2014), there are now eleven states of the US with mandatory reporting of suspected AA by veterinarians.
In contrast, the stance of the Canadian Veterinarian Medical Association (CVMA 2013) is that while there is a moral duty to report AA, there is no “legal obligation” (p. 3) to do so. Despite this, it is now mandatory for veterinarians to report suspected cases of AA in three provinces of Canada (Nova Scotia, Ontario, and Manitoba). The British Veterinary Association (BVA) also acknowledges the relationship between AA and other forms of interpersonal vio- lence, further suggesting that veterinarians can play a significant role in identifying this cycle (BVA 2013). The Code of Professional Conduct of the Veterinarian Council of New Zealand (VCNZ n.d.) states that New Zealand veterinarians have a legal and professional obligation to act swiftly if they become aware that an animal is being mistreated.
In one of the few studies examining perceptions of Australian veterinarians on this topic, Green and Gullone (2005) surveyed 185 veterinarians regarding their knowledge of AA, atti-tude toward reporting it, and opinions regarding the possible role of veterinarians in addressing the AA/human violence link. Participants were mainly from small animal practices (arguably the most likely to “see” AA) located in suburban areas. Approximately 40% indicated seeing AA cases 1–3 times a year and only 8% indicated never seeing/diagnosing them. Barriers to mandatory reporting mentioned by participants included: concerns about client confidentiality, uncertainty whether the case would be handled effectively, inadequate training in recognizing definitive abuse (animal and/or human), and loss of income through reducing their client base. These results reflect similar conclusions reached in previous US and NZ studies (Ascione and Barnard 1998; Williams et al. 2008). Green and Gullone (2005) concluded that, in order for Australian veterinarians to better assist the animal victim and possibly the human victim, they should be better equipped through increased knowledge-based education and improved awareness of community resources for all participants.
While each State and Territory in Australia has its own veterinary registration board which enforces policy and standards, the Australian Veterinary Association (AVA) is the professional organization that represents veterinarians across Australia. As noted earlier in regards to AA, AVA policy states that it is not mandatory for veterinarians to report suspected cases of AA in Australia; however, it is recommended that such cases are reported to the relevant authority. The stated reason for not mandating reporting is that “ ... members of the community may be reluctant to bring in sick or injured animals for treatment for fear of being reported” (AVA 2013). Although the motivation behind the policy is laudable, there appears to have been no assessment of whether this is actually the case for members of the community, that is, that they will stop taking their animals to veterinarians. Arkow (1994), for example, found that members of the general population regard members of the veterinary profession as playing a key role in animal protection. Indeed, recent commentary in New Zealand asks whether, given increasing attention paid to issues of animal welfare, non-reporting of suspected animal abuse puts veterinarians at risk of both “public criticism and adverse legal accountability” (Robertson 2010, p. 114). One of the side effects of the current AVA stance (i.e., encouraging but not mandating reporting) is that veterinarians who do report are not provided legislative immunity. As Robertson (2010) points out, although a veterinarian may make an anonymous report to the RSPCA or animal welfare enforcement agency (including police), any subsequent investigation is likely to involve assessment of previous veterinary treatment and thus lead back to the veterinarian concerned. Anonymity is therefore exceedingly difficult, if not impossible, to preserve for the veterinarian. With mandatory reporting (and attendant legal immunity in case of un-substantiated reports), one advantage is that veterinarians would be protected from liability. As it currently stands in Australia, veterinarians may be in the unenviable position of meeting community expectations to report suspected cases of AA as a key stakeholder in animal welfare/animal protection but on the other hand not being (legally) supported if they do report suspected AA.
Given the complex nature of the problem, it is timely, and helpful to the debate, to assess the opinions of members of the general (Australian) community regarding mandatory report- ing by veterinarians. In particular, it is helpful to investigate the problems and benefits they identify in implementing mandatory reporting and what demographic characteristics (e.g., gen- der, awareness/endorsement of the link between animal and human violence) might affect these attitudes