12 December 2017

Privacy and Open Justice

'Privacy As Protection of the Incomputable Self: Agonistic Machine Learning' by Mireille Hildebrandt comments
This paper takes the perspective of law and philosophy, integrating insights from computer science. First, I will argue that in the era of big data analytics we need an understanding of privacy that is capable of protecting what is uncountable, incalculable or incomputable about individual persons. To instigate this new dimension of the right to privacy I expand previous work on the relational and ecological nature of privacy and the productive indeterminacy of human identity. Second, I will explain that this does not imply a rejection of machine learning, based on a more in-depth study of the assumptions, operations and implications of the practice of machine learning – highlighting its alignment with purpose limitation as core to its methodological integrity. Instead of rejecting machine learning, I advocate a practice of ‘agonistic machine learning’ as core to scientifically viable integration of data-driven applications into our environments while simultaneously bringing them under the Rule of Law. This should also provide the best means to achieve effective protection against overdetermination of individuals by machine inferences.
'The Media's Standing to Challenge Departures From Open Justice' by Michael Douglas in (2016) 37 Adelaide Law Review comments
 Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organ- isations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice. 
Douglas argues
 The principle of open justice is an essential characteristic of courts, but it is not an absolute principle. A court may depart from open justice by: closing proceedings to the public, concealing information from those present in court, or restricting publication of material arising from the proceedings. Superior courts have the power to depart from open justice in exercise of their inherent jurisdiction. Inferior courts and federal courts created by statute have the same power in exercise of analogous implied powers. Courts may also depart from open justice in exercise of statutory powers. When these powers are exercised, it is appropriate for those with the greatest stake in open justice to question whether the circumstances warrant the departure. Journalists, and the media organisations behind them, have the greatest stake in open justice in Australia. For some, this is an obvious truism. For others, this position is contentious. This article argues that when courts are closed, the media is aggrieved in a way that the remainder of society is not. The issue is important because in some cases it will determine whether an organisation that reports the news - a 'media organisation' - has standing to challenge a departure from open justice. 
To an extent, this was addressed by model legislation on suppression and non- publication orders developed by the Standing Committee of Attorneys-General in 2010. The model legislation was implemented by New South Wales in the Court Suppression and Non-publication Orders Act 2010 (NSW) and in a modified form in relation to federal courts via the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). Other jurisdictions did not implement the model legislation. For much of Australia, the standing of media organisations is an issue addressed by alter native legislation, or the common law. 
The common law position is contentious. In Western Australia, a majority of the Supreme Court held in Re Bromfield; Exparte WA Newspapers Ltd that a newspaper publisher had sufficient interest to establish standing before a magistrate to oppose the making of a suppression order. That decision is contrary to New South Wales Supreme Court decisions, including John Fairfax Group and Nationwide News Pty Ltd v District Court of New South Wales. This article argues that the majority in Re Bromfield ought to be followed, and that the weight of authority provides that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice. 
The article is structured as follows. Part II looks at legislation providing standing to challenge departures from open justice. The legislative provisions are then compared to the common law position. Part III explains how non-parties may become involved in adversarial proceedings, and addresses the controversy over the common law standing of media organisations in more detail. Parts IV-VI seek to resolve that controversy. Part IV is concerned with the jurisdiction of courts to permit non-parties to become involved in proceedings by way of 'intervening', and Part V explains the test for permitting intervention. Part VI applies the preceding analysis to media organisations.