13 November 2018

Gendered AI

From Alexa to Siri and the GDPR: The Gendering of Virtual Personal Assistants and the Role of EU Data Protection Law' by Nora Ni Loideain and Rachel Adams comments
With female names, voices and characters, artificially intelligent Virtual Personal Assistants such as Siri, Alexa and Cortana, appear to be decisively gendered female. Through an exploration of the various facets of gendering at play in the design of Siri, Alexa and Cortana, we argue that this can be understood as posing a societal harm, insofar as they reproduce normative assumptions about the role of women as submissive and secondary to men. As a potential solution to this problem, this article then turns to explore the scope and potential of data protection law. In particular, we examine the role of data privacy impact assessments that highlight the need to go beyond the data privacy paradigm.

12 November 2018

Family Law Review

The ALRC Discussion paper regarding the Review of the Family Law System (submissions due this week) offers the following proposals and questions
2. Education, Awareness and Information 
Proposal 2–1 The Australian Government should develop a national education and awareness campaign to enhance community understanding of the family law system. This should include information about: · the benefits of seeking information, advice and support when contemplating or experiencing separation; · the duties and responsibilities of parents and the importance of taking a child- centred approach to post-separation parenting that prioritises children’s safety and best interests; · the existence and location of the proposed Families Hubs (Proposals 4–1 to 4–4) as a place where people experiencing separation can access advice and support services; · the availability of the proposed family law system information package (Proposals 2–5 to 2–8) that provides practical information to assist people, including children and young people, to understand and navigate the family law system, including how to access the package; and · the availability of alternative dispute resolution processes to assist and empower people experiencing separation to reach agreement about arrangements for their children and property outside of court proceedings. 
Proposal2–2 The national education and awareness campaign should be developed in consultation with Aboriginal and Torres Strait Islander, culturally and linguistically diverse, LGBTIQ and disability organisations and be available in a range of languages and formats. 
Proposal 2–3 The Australian Government should work with state and territory governments to facilitate the promotion of the national education and awareness campaign through the health and education systems and any other relevant agencies or bodies. 
Proposal 2–4 The Australian Government should work with state and territory governments to support the development of referral relationships to family law services, including the proposed Families Hubs (Proposals 4–1 to 4–4), from: · universal services that work with children and families, such as schools, childcare facilities and health services; and x Review of the Family Law System · first point of contact services for people who have experienced family violence, including state and territory specialist family violence services and state and territory police and child protection agencies. 
Proposal 2–5 The Australian Government should convene a standing working group with representatives from government and non-government organisations from each state and territory to: · advise on the development of a family law system information package to facilitate easy access for people to clear, consistent, legally sound and nationally endorsed information about the family law system; and · review the information package on a regular basis to ensure that it remains up- to-date. 
Proposal 2–6 The family law system information package should be tailored to take into account jurisdictional differences and should include information about: · the legal framework for resolving parenting and property matters; · the range of legal and support services available to help separating families and their children and how to access these services; and · the different forums and processes for resolving disputes. 
Proposal 2–7 The family law system information package should be accessible in a range of languages and formats, including: · electronically via a central website; · as printed material available at key entry points to the family law system and universal services; and · through interactive means, including a national telephone helpline and a national web-chat service. 
Proposal 2–8 The family law system information package should be: · developed with reference to existing government and non-government information resources and services; · developed in consultation with Aboriginal and Torres Strait Islander, culturally and linguistically diverse, LGBTIQ and disability organisations; and · user-tested for accessibility by community groups including children and young people, Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse communities, LGBTIQ people and people with disability. 
Simpler and Clearer Legislation 
Proposal 3–1 The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted with the aim of simplification and assisting readability, by: · simplifying provisions to the greatest extent possible; · restructuring legislation to assist readability, for example by placing the most important substantive provisions as early as possible; · redrafting the Act, Regulations and Rules in ordinary English, by modernising language, and as far as possible removing terms that are unlikely to be understood by general readers, such as legal Latin, archaisms, and unnecessarily technical terms; · user testing key provisions for reader comprehension during the drafting process, for example, through focus groups, to ensure that the legislation is understood as intended; · removing or rationalising overlapping or duplicative provisions as far as possible; · removing provisions establishing the Family Court of Australia and the Australian Institute of Family Studies to separate legislation; · removing provisions defining parentage for the purposes of Commonwealth law to separate legislation; and · considering what provisions should be contained in subordinate legislation rather than the Act. 
Proposal 3–2 Family law court forms should be comprehensively reviewed to improve usability, including through: · only gathering information that is absolutely required, and simplifying how information is gathered (eg through use of check-boxes); · using smart forms, to pre-populate information from previously completed forms (such as name and address), ask contextual questions based on previous answers, and provide contextual help within the form; · using real-time help functions, such as a live-chat functionality, and links to audio-visual help; · providing collaborative functions in circumstances where forms require information from both parties to allow them both to easily enter information; · ensuring that all forms are drafted in ordinary English and where possible providing alternative forms in Easy English to assist litigants with limited literacy or English skills; · providing a paper form for use by individuals without access to technology; and  · providing a single set of forms for all courts exercising jurisdiction under the Family Law Act 1975 (Cth). 
Proposal 3–3 The principle (currently set out in s 60CA of the Family Law Act 1975 (Cth)) that the child’s best interests must be the paramount consideration in making decisions about children should be retained but amended to refer to ‘safety and best interests’. 
Proposal 3–4 The objects and principles underlying pt VII of the Family Law Act 1975 (Cth) set out in s 60B should be amended to assist the interpretation of the provisions governing parenting arrangements as follows: · arrangements for children should be designed to advance the child’s safety and best interests; · arrangements for children should not expose children or their carers to abuse or family violence or otherwise impair their safety; · children should be supported to maintain relationships with parents and other people who are significant in their lives where maintaining a relationship does not expose them to abuse, family violence or harmful levels of ongoing conflict; · decisions about children should support their human rights as set out in the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities; and · decisions about the care of an Aboriginal or Torres Strait Islander child should support the child’s right to maintain and develop the child’s cultural identity, including the right to: (a) maintain a connection with family, community, culture and country; and (b) have the support, opportunity and encouragement necessary to participate in that culture, consistent with the child’s age and developmental level and the child’s views, and to develop a positive appreciation of that culture. 
Proposal 3–5 The guidance in the Family Law Act 1975 (Cth) for determining the arrangements that best promote the child’s safety and best interests (currently set out mainly in s 60CC), should be simplified to provide that the following matters must be considered: · any relevant views expressed by the child; · whether particular arrangements are safe for the child and the child’s carers, including safety from family violence or abuse; · the developmental, psychological and emotional needs of the child; · the capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child;  · the benefit to a child of being able to maintain relationships that are significant to them, including relationships with their parents, where it is safe to do so; and · anything else that is relevant to the particular circumstances of the child. 
Proposal3–6 The Family Law Act 1975 (Cth) should provide that, in determining what arrangements best promote the safety and best interests of an Aboriginal or Torres Strait Islander child, the maintenance of the child’s connection to their family, community, culture and country must be considered. 
Proposal 3–7 The decision making framework for parenting arrangements in pt VII of the Family Law Act 1975 (Cth) should be further clarified by: · replacing the term ‘parental responsibility’ with a more easily understood term, such as ‘decision making responsibility’; and · making it clear that in determining what arrangements best promote the child’s safety and best interests, decision makers must consider what arrangements would be best for each child in their particular circumstances. 
Question3–1 How should confusion about what matters require consultation between parents be resolved? 
Proposal 3–8 The Family Law Act 1975 (Cth) should be amended to explicitly state that, where there is already a final parenting order in force, parties must seek leave to apply for a new parenting order, and that in considering whether to allow a new application, consideration should be given to whether: · there has been a change of circumstances that, in the opinion of the court, is significant; and · it is safe and in the best interests of the child for the order to be reconsidered. 
Proposal 3–9 The Attorney-General’s Department (Cth) should commission a body with relevant expertise, including in psychology, social science and family violence, to develop, in consultation with key stakeholders, evidence-based information resources to assist families in formulating care arrangements for children after separation that support children’s wellbeing. This resource should be publicly available and easily accessible, and regularly updated. 
Proposal 3–10 The provisions for property division in the Family Law Act 1975 (Cth) should be amended to more clearly articulate the process used by the courts for determining the division of property. 
Proposal 3–11 The provisions for property division in the Family Law Act 1975 (Cth) should be amended to provide that courts must: · in determining the contributions of the parties, take into account the effect of family violence on a party’s contributions; and · in determining the future needs of the parties, take into account the effect of any family violence on the future needs of a party. 
Proposal 3–12 The Attorney-General’s Department (Cth) should commission further research on property and financial matters after separation, including property adjustment after separation, spousal maintenance, and the economic wellbeing of former partners and their children after separation. 
Proposal 3–13 The Australian Government should work with the financial sector to establish protocols for dividing debt on relationship breakdown to avoid hardship for vulnerable parties, including for victims of family violence. 
Proposal3–14 If evaluation of action flowing from this Inquiry finds that voluntary industry action has not adequately assisted vulnerable parties, the Australian Government should consider relaxing the requirement that it not be foreseeable, at the time the order is made, that to make the order would result in the debt not being paid in full. 
Proposal 3–15 The Australian Government should develop information resources for separating couples to assist them to understand superannuation, and how and why superannuation splitting might occur. 
Proposal 3–16 The Family Law Act 1975 (Cth) should require superannuation trustees to develop standard superannuation splitting orders on common scenarios. Procedural fairness should be deemed to be satisfied where parties develop orders based on these standard templates. The templates should be published on a central register. 
Proposal 3–17 The Australian Government should develop tools to assist parties to create superannuation splitting orders. These could include: · a tool to look up the legal name and contact details of superannuation funds; · a tool, with appropriate safeguards, to identify the superannuation accounts held by a former partner from Australian Tax Office records, with necessary amendments to the taxation law to support this; · tools to assist parties with process requirements, such as making superannuation information requests, providing draft orders to superannuation trustees for comment where standard orders are not used, and providing final orders to trustees; and · allowing auto-generation of standard form orders based on the standard orders provided by the superannuation trustee and user-entered data. 
Question 3–2 Should provision be made for early release of superannuation to assist a party experiencing hardship as a result of separation? If so, what limitations should be placed on the ability to access superannuation in this way? How should this relate to superannuation splitting provisions? 
Question 3–3 Which, if any, of the following approaches should be adopted to reform provisions about financial agreements in the Family Law Act 1975 (Cth): · amendments to increase certainty about when financial agreements are binding; Proposals and 
Questions xv · amendments to broaden the scope for setting aside an agreement where it is unjust to enforce the agreement, for example, because there has been family violence, or a change of circumstances that was unforeseen when the agreement was entered into; · replacing existing provisions about financial agreements with an ability to make court-approved agreements; or · removing the ability to make binding pre-nuptial financial agreements from family law legislation, and preserving the operation of any existing valid agreements? 
Proposal3–18 The considerations that are applicable to spousal maintenance (presently located in s 75 of the Family Law Act 1975 (Cth)) should be located in a separate section of family law legislation that is dedicated to spousal maintenance applications (‘dedicated spousal maintenance considerations’). 
Proposal 3–19 The dedicated spousal maintenance considerations should include a requirement that the court consider the impact of any family violence on the ability of the applicant to adequately support themselves. 
Question 3–4 What options should be pursued to improve the accessibility of spousal maintenance to individuals in need of income support? Should consideration be given to: · greater use of registrars to consider urgent applications for interim spousal maintenance; · administrative assessment of spousal maintenance; or · another option? 
4. Getting Advice and Support 
Proposal 4–1 The Australian Government should work with state and territory governments to establish community-based Families Hubs that will provide separating families and their children with a visible entry point for accessing a range of legal and support services. These Hubs should be designed to: · identify the person’s safety, support and advice needs and those of their children; · assist clients to develop plans to address their safety, support and advice needs and those of their children; · connect clients with relevant services; and · coordinate the client’s engagement with multiple services. 
Proposal 4–2 The Australian Government should work with state and territory governments to explore the use of digital technologies to support the assessment of xvi Review of the Family Law System client needs, including their safety, support and advice needs, within the Families Hubs. 
Proposal4–3 Families Hubs should advance the safety and wellbeing of separating families and their children while supporting them through separation. They should include on-site out-posted workers from a range of relevant services, including: · specialist family violence services; · legal assistance services (such as community legal centres); · family dispute resolution services; · therapeutic services (such as family counselling and specialised services for children); · financial counselling services; · housing assistance services; · health services (such as mental health services and alcohol and other drug services); · gambling help services; · children’s contact services; and · parenting support programs or parenting education services (including a program for fathers). 
Proposal 4–4 Local service providers, including Aboriginal and Torres Strait Islander, culturally and linguistically diverse, LGBTIQ and disability organisations, specialist family violence services and legal assistance services, including community legal services, should play a central role in the design of Families Hubs, to ensure that each hub is culturally safe and accessible, responsive to local needs, and builds on existing networks and relationships between local services. 
Proposal 4–5 The Australian Government should, subject to positive evaluation, expand the Family Advocacy and Support Service (FASS) in each state and territory to include: · an information and referral officer to conduct intake, risk and needs screening and triage, as well as providing information and resources; · a family violence specialist legal service and a family violence specialist support service to assist clients who have experienced or are experiencing family violence; and · an additional legal service and support service, to assist clients who are alleged to have used family violence and clients who are not affected by family violence but have other complex needs. 
Proposal 4–6 The FASS support services should be expanded to provide case management where a client has complex needs and cannot be linked with an appropriate support service providing ongoing case management. 
Proposal 4–7 The level and duration of support provided by the FASS should be flexible depending on client need and vulnerability, as well as legal aid eligibility for ongoing legal services. 
Proposal 4–8 The Australian Government should, subject to positive evaluation, roll out the expanded FASS to a greater number of family court locations, including in rural, regional and remote locations. 
5. Dispute Resolution 
Proposal 5–1 The guidance as to assessment of suitability for family dispute resolution that is presently contained in reg 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) should be relocated to the Family Law Act 1975 (Cth). 
Proposal 5–2 The new legislative provision proposed in Proposal 5–1 should provide that, in addition to the existing matters that a family dispute resolution provider must consider when determining whether family dispute resolution is appropriate, the family dispute resolution provider should consider the parties’ respective levels of knowledge of the matters in dispute, including an imbalance in knowledge of relevant financial arrangements. 
Proposal 5–3 The Family Law Act 1975 (Cth) should be amended to require parties to attempt family dispute resolution prior to lodging a court application for property and financial matters. There should be a limited range of exceptions to this requirement, including: · urgency, including where orders in relation to the ownership or disposal of assets are required or a party needs access to financial resources for day to day needs; · the complexity of the asset pool, including circumstances involving third party interests (apart from superannuation trustees); · where there is an imbalance of power, including as a result of family violence; · where there are reasonable grounds to believe non-disclosure may be occurring; · where one party has attempted to delay or frustrate the resolution of the matter; and · where there are allegations of fraud. 
Proposal 5–4 The Family Law Act 1975 (Cth) should be amended to specify that a court must not hear an application for orders in relation to property and financial matters unless the parties have lodged a genuine steps statement at the time of filing the application. The relevant provision should indicate that if a court finds that a party has xviii Review of the Family Law System not made a genuine effort to resolve a matter in good faith, they may take this into account in determining how the costs of litigation should be apportioned. 
Proposal 5–5 The Family Law Act 1975 (Cth) should include a requirement that family dispute resolution providers in property and financial matters should be required to provide a certificate to the parties where the issues in dispute have not been resolved. The certificate should indicate that: · the matter was assessed as not suitable for family dispute resolution; · the person to whom the certificate was issued had attempted to initiate a family dispute resolution process but the other party has not responded; · the parties had commenced family dispute resolution and the process had been terminated; or · the matter had commenced and concluded with partial resolution of the issues in dispute. 
Question 5–1 Should the requirement in the Family Law Act 1975 (Cth) that proceedings in property and financial matters must be instigated within twelve months of divorce or two years of separation from a de facto relationship be revised? 
Proposal 5–6 The Family Law Act 1975 (Cth) should set out the duties of parties involved in family dispute resolution or court proceedings for property and financial matters to provide early, full and continuing disclosure of all information relevant to the case. For parties involved in family dispute resolution or court proceedings, disclosure duties should apply to: · earnings, including those paid or assigned to another party; · vested or contingent interests in property, including that which is owned by a legal entity that is fully or partially owned or partially controlled by a party; · income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity; · superannuation interests; and · liabilities and contingent liabilities. 
Proposal 5–7 The provisions in the Family Law Act 1975 (Cth) setting out disclosure duties should also specify that if a court finds that a party has intentionally failed to provide full, frank and timely disclosure it may: · impose a consequence, including punishment for contempt of court; · take the party’s non-disclosure into account when determining how costs are to be apportioned; · stay or dismiss all or part of the party’s case; or  · take the party’s non-disclosure into account when determining how the financial pool is to be divided. 
Question 5–2 Should the provisions in the Family Law Act 1975 (Cth) setting out disclosure duties be supported by civil or criminal penalties for non-disclosure? 
Proposal5–8 The Family Law Act 1975 (Cth) should set out advisers’ obligations in relation to providing advice to parties contemplating or undertaking family dispute resolution, negotiation or court proceedings about property and financial matters. Advisers (defined as a legal practitioner or a family dispute resolution practitioner) must advise parties that: · they have a duty of full, frank and continuing disclosure, and, in the case of family dispute resolution, that compliance with this duty is essential to the family dispute resolution process; and · if the matter proceeds to court and a party fails to observe this duty, courts have the power to: (a) impose a consequence, including punishment for contempt of court; (b) take the party’s non-disclosure into account when determining how costs are to be apportioned; (c) stay or dismiss all or part of the party’s case; and (d) take the party’s non-disclosure into account when determining how the financial pool is to be divided. 
Question 5–3 Is there a need to review the process for showing that the legal requirement to attempt family dispute resolution prior to lodging a court application for parenting orders has been satisfied? Should this process be aligned with the process proposed for property and financial matters? 
Proposal 5–9 The Australian Government should work with providers of family dispute resolution services, legal assistance services, specialist family violence services and Aboriginal and Torres Strait Islander, culturally and linguistically diverse, LGBTIQ and disability organisations to support the further development of culturally appropriate and safe models of family dispute resolution for parenting and financial matters. This should include: · examining the feasibility of means-tested fee for service and cost recovery models to be provided by legal aid commissions and community organisations such as Family Relationship Centres; · the further development of dispute resolution models for property and financial matters involving, where necessary, support by financial counsellors and the provision of legal advice by private practitioners and legal assistance services, such as legal aid commissions, community legal centres and the Legal Advice Line that is part of Family Relationships Advice Line; and · amendments to existing funding agreements and practice agreements to support this work. 
Proposal 5–10 The Australian Government should work with providers of family dispute resolution services, private legal services, financial services, legal assistance services, specialist family violence services and Aboriginal and Torres Strait Islander, culturally and linguistically diverse, LGBTIQ and disability organisations to develop effective practice guidelines for the delivery of legally assisted dispute resolution (LADR) for parenting and property matters. These Guidelines should include: · guidance as to when LADR should not be applied in matters involving family violence and other risk related issues; · effective practice in screening, assessing and responding to risk arising from family violence, child safety concerns, mental ill-health, substance misuse and other issues that raise questions of risk; · the respective roles and responsibilities of the professionals involved; · the application of child-inclusive practice; · the application of approaches to support cultural safety for Aboriginal and Torres Strait Islander people; · the application of approaches to support cultural safety for families from culturally and linguistically diverse communities; · the application of approaches to support effective participation for LGBTIQ families; · the application of approaches that support effective participation for families where parents or children have disability; · practices relating to referral to other services, including health services, specialist family violence services and men’s behaviour change programs; · practices relating to referrals from and to the family courts; and · information sharing and collaboration with other services involved with the family. 
Proposal5–11 These Guidelines should be regularly reviewed to support evidence-informed policy and practice in this area. 
6. Reshaping the Adjudication Landscape 
Proposal 6–1 The family courts should establish a triage process to ensure that matters are directed to appropriate alternative dispute resolution processes and specialist pathways within the court as needed. 
Proposal6–2 The triage process should involve a team-based approach combining the expertise of the court’s registrars and family consultants to ensure initial and ongoing risk and needs assessment and case management of the matter, continuing, if required, until final decision. 
Proposal 6–3 Specialist court pathways should include: · a simplified small property claims process; · a specialist family violence list; and · the Indigenous List. 
Proposal 6–4 The Family Law Act 1975 (Cth) should provide for a simplified court process for matters involving smaller property pools. The provisions should allow for: · the court to have discretion, subject to the requirements of procedural fairness, not to apply formal rules of evidence and procedure in a given case; · the proceedings to be conducted without legal technicality; and · the simplified court procedure to be applied by the court on its own motion or on application by a party. 
Proposal 6–5 In considering whether the simplified court procedure should be applied in a particular matter, the court should have regard to: · the relative financial circumstances of the parties; · the parties’ relative levels of knowledge of their financial circumstances; · whether either party is in need of urgent access to financial resources to meet the day to day needs of themselves and their children; · the size and complexity of the asset pool; and · whether there are reasonable grounds to believe there is history of family violence involving the parties, or risk of family violence. The court should give weight to each of these factors as it sees fit. 
Proposal 6–6 The family courts should consider developing case management protocols to support implementation of the simplified process for matters with smaller property pools, including provision for: · case management by court registrars to establish, monitor and enforce timelines for procedural steps, including disclosure; · conducting a conciliation conference once the asset pool has been identified; and · establishing a standard timetable for processing claims with expected timeframes for case management of events (mentions, conciliation conferences and trial). 
Proposal 6–7 The family courts should consider establishing a specialist list for the hearing of high risk family violence matters in each registry. The list should have the following features: · a lead judge with oversight of the list; · a registrar with responsibility for triaging matters into the list and ongoing case management; · family consultants to prepare short and long reports on families whose matters are heard in the list; and · a cap on the number of matters listed in each daily hearing list. All of the professionals in these roles should have specialist family violence knowledge and experience. 
Question 6–1 What criteria should be used to establish eligibility for the family violence list? 
Question 6–2 What are the risks and benefits of early fact finding hearings? How could an early fact finding process be designed to limit risks? 
Proposal 6–8 The Australian Government should work with state and territory governments to develop and implement models for co-location of family law registries and judicial officers in local court registries. This should include local courts in rural, regional and remote locations. 
Question 6–3 What changes to the design of the Parenting Management Hearings process are needed to strengthen its capacity to apply a problem-solving approach in children’s matters? Are other changes needed to this model? 
Question 6–4 What other ways of developing a less adversarial decision making process for children’s matters should be considered? 
Proposal 6–9 The Australian Government should develop a post-order parenting support service to assist parties to parenting orders to implement the orders and manage their co-parenting relationship by providing services including: · education about child development and conflict management; · dispute resolution; and · decision making in relation to implementation of parenting orders. 
Proposal6–10 The Australian Government should work with relevant stakeholders, including the Community Services and Health Industry Skills Council, the Australian Psychological Society, the Australian Association of Social Workers, the Mediator Standards Board, Family & Relationship Services Australia and specialist family violence services peak bodies, to develop intake assessment processes for the post-order parenting support service. 
Proposal 6–11 The proposed Family Law Commission (Proposal 12–1) should develop accreditation and training requirements for professionals working in the post-order parenting support service. 
Proposal 6–12 The Australian Government should ensure that all family court premises, including circuit locations and state and territory court buildings that are used for family law matters, are safe for attendees, including ensuring the availability and suitability of: · waiting areas and rooms for co-located service providers, including the extent to which waiting areas can accommodate large family groups; · safe waiting areas and rooms for court attendees who have concerns for their safety while they are at court; · private interview rooms; · multiple entrances and exits; · child-friendly spaces and waiting rooms; · security staffing and equipment; · multi-lingual and multi-format signage; · remote witness facilities for witnesses to give evidence off site and from court- based interview rooms; and · facilities accessible for people with disability. 
7. Children in the Family Law System 
Proposal 7–1 Information about family law processes and legal and support services should be available to children in a range of age-appropriate and culturally appropriate forms. 
Proposal 7–2 The proposed Families Hubs (Proposals 4–1 to 4–4) should include out-posted workers from specialised services for children and young people, such as counselling services and peer support programs. 
Proposal7–3 The Family Law Act 1975 (Cth) should provide that, in proceedings concerning a child, an affected child must be given an opportunity (so far as practicable) to express their views. 
Proposal 7–4 The Family Law Act 1975 (Cth) should provide that, in any family dispute resolution process concerning arrangements for a child, the affected child must be given an opportunity (so far as practicable) to express any views about those arrangements. 
Proposal 7–5 The Attorney-General’s Department (Cth) should work with the family relationship services sector to develop best practice guidance on child-inclusive family dispute resolution, including in relation to participation support where child- inclusive family dispute resolution is not appropriate. 
Proposal 7–6 There should be an initial and ongoing assessment of risk to the child of participating in family law proceedings or family dispute resolution, and processes put in place to manage any identified risk. 
Proposal 7–7 Children should not be required to express any views in family law proceedings or family dispute resolution. 
Proposal 7–8 Children involved in family law proceedings should be supported by a ‘children’s advocate’: a social science professional with training and expertise in child development and working with children. The role of the children’s advocate should be to: · explain to the child their options for making their views heard; · support the child to understand their options and express their views; · ensure that the child’s views are communicated to the decision maker; and · keep the child informed of the progress of a matter, and to explain any outcomes and decisions made in a developmentally appropriate way. 
Proposal 7–9 Where a child is not able to be supported to express a view, the children’s advocate should: · support the child’s participation to the greatest extent possible; and · advocate for the child’s interests based on an assessment of what would best promote the child’s safety and developmental needs. 
Proposal 7–10 The Family Law Act 1975 (Cth) should make provision for the appointment of a legal representative for children involved in family law proceedings (a ‘separate legal representative’) in appropriate circumstances, whose role is to: · gather evidence that is relevant to an assessment of a child’s safety and best interests; and · assist in managing litigation, including acting as an ‘honest broker’ in litigation. 
Question 7–1 In what circumstances should a separate legal representative for a child be appointed in addition to a children’s advocate? 
Question7–2 How should the appointment, management and coordination of children’s advocates and separate legal representatives be overseen? For example, should a new body be created to undertake this task? 
Question 7–3 What approach should be taken to forensic issues relating to the role of the children’s advocate, including: · admissibility of communications between the children’s advocate and a child; and · whether the children’s advocate may become a witness in a matter? 
Proposal 7–11 Children should be able to express their views in court proceedings and family dispute resolution processes in a range of ways, including through: · a report prepared by the children’s advocate; · meeting with a decision maker, supported by a children’s advocate; or · directly appearing, supported by a children’s advocate. 
Proposal 7–12 Guidance should be developed to assist judicial officers where children seek to meet with them or otherwise participate in proceedings. This guidance should cover matters including how views expressed by children in any such meeting should be communicated to other parties to the proceeding. 
Proposal 7–13 There should be a Children and Young People’s Advisory Board for the family law system. The Advisory Board should provide advice about children’s experiences of the family law system to inform policy and practice development in the system. 
8. Reducing Harm 
Proposal 8–1 The definition of family violence in the Family Law Act 1975 (Cth) should be amended to: · clarify some terms used in the list of examples of family violence and to include other behaviours (in addition to misuse of systems and processes (Proposal 8– 3)) including emotional and psychological abuse and technology facilitated abuse; and · include an explicit cross-reference between the definitions of family violence and abuse to ensure it is clear that the definition of abuse encompasses direct or indirect exposure to family violence. 
Question 8–1 What are the strengths and limitations of the present format of the family violence definition? Question 8–2 Are there issues or behaviours that should be referred to in the definition, in addition to those proposed? 
Proposal 8–2 The Australian Government should commission research projects to examine the strengths and limitations of the definition of family violence in the Family Law Act 1975 (Cth) in relation to the experiences of: · Aboriginal and Torres Strait Islander people; · people from culturally and linguistically diverse backgrounds; and · LGBTIQ people. 
Proposal 8–3 The definition of family violence in the Family Law Act 1975 (Cth) should be amended to include misuse of legal and other systems and processes in the list of examples of acts that can constitute family violence in s 4AB(2) by inserting  a new subsection referring to the ‘use of systems or processes to cause harm, distress or financial loss’. 
Proposal8–4 The existing provisions in the Family Law Act 1975 (Cth) concerning dismissal of proceedings that are frivolous, vexatious, an abuse of process or have no reasonable prospect of success (‘unmeritorious proceedings’) should be rationalised. 
Proposal 8–5 The Family Law Act 1975 (Cth) should provide that, in considering whether to deem proceedings as unmeritorious, a court may have regard to evidence of a history of family violence and in children’s cases must consider the safety and best interests of the child and the impact of the proceedings on the other party when they are the main caregiver for the child. 
Question 8–3 Should the requirement for proceedings to have been instituted ‘frequently’ be removed from provisions in the Family Law Act 1975 (Cth) setting out courts powers to address vexatious litigation? Should another term, such as ‘repeated’ be substituted? 
Question 8–4 What, if any, changes should be made to the courts’ powers to apportion costs in s 117 of the Family Law Act 1975 (Cth)? 
Proposal 8–6 The Family Law Act 1975 (Cth) should provide that courts have the power to exclude evidence of ‘protected confidences’: that is, communications made by a person in confidence to another person acting in a professional capacity who has an express or implied duty of confidence. The Act should provide that: · Subpoenas in relation to evidence of protected confidences should not be issued without leave of the court. · The court should exclude evidence of protected confidences where it is satisfied that it is likely that harm would or might be caused, directly or indirectly, to a protected confider, and the nature and extent of the harm outweighs the desirability of the evidence being given. Harm should be defined to include actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). · In exercising this power, the court should consider the probative value and importance of the evidence to the proceedings and the effect that allowing the evidence would have on the protected confider. · In family law proceedings concerning children, the safety and best interests of the child should be the paramount consideration when deciding whether to exclude evidence of protected confidences. Such evidence should be excluded where a court is satisfied that admitting it would not promote the safety and best interests of the child. · The protected confider may consent to the evidence being admitted. · The court should have the power to disallow such evidence on its own motion or by application of the protected confider or the confidant. Where a child is the protected confider, a representative of the child may make the claim for protection on behalf of the child. · The court is obliged to give reasons for its decision. 
Proposal8–7 The Attorney-General’s Department (Cth) should convene a working group comprised of the family courts, the Family Law Section of the Law Council of Australia, the Royal Australian and New Zealand College of Psychiatrists, the Australian Psychological Society, the Royal Australian College of General Practitioners, Family & Relationship Services Australia, National Legal Aid, Women’s Legal Services Australia and specialist family violence services peak bodies and providers to develop guidelines in relation to the use of sensitive records in family law proceedings. These guidelines should identify: · principles to consider when a subpoena of sensitive records is in contemplation; · obligations of professionals who are custodians of sensitive records in relation to the provision of those records; · processes for objecting to a subpoena of sensitive records; and · how services and professionals need to manage implications for their clients regarding the possibility that material may be subpoenaed and any potential consequences for their clients if a subpoena is issued. 
9. Additional Legislative Issues 
Proposal 9–1 The Family Law Act 1975 (Cth) should include a supported decision making framework for people with disability to recognise they have the right to make choices for themselves. The provisions should be in a form consistent with the following recommendations of the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws: · Recommendations 3–1 to 3–4 on National Decision Making Principles and Guidelines; and · Recommendations 4–3 to 4–5 on the appointment, recognition, functions and duties of a ‘supporter’. 
Proposal 9–2 The Australian Government should ensure that people who require decision making support in family law matters, and their supporters, are provided with information and guidance to enable them to understand their functions and duties. 
Proposal 9–3 The Family Law Act 1975 (Cth) should include provisions for the appointment of a litigation representative where a person with disability, who is involved in family law proceedings, is unable to be supported to make their own decisions. The Act should set out the circumstances for a person to have a litigation representative and the functions of the litigation representative. These provisions should be in a form consistent with recommendations 7–3 to 7–4 recommendations of ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws. 
Proposal 9–4 Family courts should develop practice notes explaining the duties that litigation representatives have to the person they represent and to the court. 
Proposal 9–5 The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings. 
Proposal9–6 The Australian Government should work with the National Disability Insurance Agency (NDIA) to consider how referrals can be made to the NDIA by family law professionals, and how the National Disability Insurance Scheme (NDIS) could be used to fund appropriate supports for eligible people with disability to: · build parenting abilities; · access early intervention parenting supports; · carry out their parenting responsibilities; · access family support services and alternative dispute resolution processes; and · navigate the family law system. 
Proposal 9–7 The Australian Government should ensure that the family law system has specialist professionals and services to support people with disability to engage with the family law system. 
Question 9–1 In relation to the welfare jurisdiction: · Should authorisation by a court, tribunal, or other regulatory body be required for procedures such as sterilisation of children with disability or intersex medical procedures? What body would be most appropriate to undertake this function? · In what circumstances should it be possible for this body to authorise sterilisation procedures or intersex medical procedures before a child is legally able to personally make these decisions? · What additional legislative, procedural or other safeguards, if any, should be put in place to ensure that the human rights of children are protected in these cases? 
Proposal 9–8 The definition of family member in s 4(1AB) of the Family Law Act 1975 (Cth) should be amended to be inclusive of Aboriginal and Torres Strait Islander concepts of family. 
Question 9–2 How should a provision be worded to ensure the definition of family member covers Aboriginal and Torres Strait Islander concepts of family? 
10. A Skilled and Supported Workforce 
Proposal10–1 The Australian Government should work with relevant non- government or ganisations and key professional bodies to develop a workforce capability plan for the family law system. 
Proposal 10–2 The workforce capability plan for the family law system should identify: · the different professional groups working in the family law system; · the core competencies that particular professional groups need; and · the training and accreditation needed for different professional groups. 
Proposal 10–3 The identification of core competencies for the family law system workforce should include consideration of the need for family law system professionals to have: · an understanding of family violence; · an understanding of child abuse, including child sexual abuse and neglect; · an understanding of trauma-informed practice, including an understanding of the impacts of trauma on adults and children; · an ability to identify and respond to risk, including the risk of suicide; · an understanding of the impact on children of exposure to ongoing conflict; · cultural competency, in relation to Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse communities and LGBTIQ people; · disability awareness; and · an understanding of the family violence and child protection systems and their intersections with the family law system. 
Question10–1 Are there any additional core competencies that should be considered in the workforce capability plan for the family law system? 
Proposal 10–4 The Family Law Commission proposed in Proposal 12–1 should oversee the implementation of the workforce capability plan through training— including cross-disciplinary training—and accreditation of family law system professionals. 
Proposal10–5 In developing the workforce capability plan, the capacity for family dispute resolution practitioners to conduct family dispute resolution in property and financial matters should be considered. This should include consideration of existing training and accreditation requirements. 
Question10–2 What qualifications and training should be required for family dispute resolution practitioners in relation to family law disputes involving property and financial issues? 
Proposal 10–6 State and territory law societies should amend their continuing professional development requirements to require all legal practitioners undertaking family law work to complete at least one unit of family violence training annually. This  training should be in addition to any other core competencies required for legal practitioners under the workforce capability plan. 
Proposal10–7 The Family Law Act 1975 (Cth) should provide for the accreditation of Children’s Contact Service workers and impose a requirement that these workers hold a valid Working with Children Check. 
Question10–3 Should people who work at Children’s Contact Services be required to hold other qualifications, such as a Certificate IV in Community Services or a Diploma of Community Services? 
Proposal10–8 All future appointments of federal judicial officers exercising family law jurisdiction should include consideration of the person’s knowledge, experience and aptitude in relation to family violence. 
Question 10–4 What, if any, other changes should be made to the criteria for appointment of federal judicial officers exercising family law jurisdiction? 
Question10–5 What, if any, changes should be made to the process for appointment of federal judicial officers exercising family law jurisdiction? 
Proposal10–9 The Australian Government should task the Family Law Commission (Proposal 12–1) with the development a national accreditation system with minimum standards for private family report writers as part of the newly developed Accreditation Rules. 
Proposal 10–10 The Family Law Commission (Proposal 12–1) should maintain a publicly available list of accredited private family report writers with information about their qualifications and experience as part of the Accreditation Register. 
Proposal 10–11 When requesting the preparation of a report under s 62G of the Family Law Act 1975 (Cth), the family courts should provide clear instructions about why the report is being sought and the particular issues that should be reported on. 
Proposal 10–12 In appropriate matters involving the care, welfare and development of a child, judges should consider appointing an assessor with expert knowledge in relation to the child’s particular needs to assist in the hearing and determination of the matter. 
Proposal10–13 The Family Law Act 1975 (Cth) should provide that, where concerns are raised about the parenting ability of a person with disability in proceedings for parenting orders, a report writer with requisite skills should: · prepare a report for the court about the person’s parenting ability, including what supports could be provided to improve their parenting; and · make recommendations about how that person’s disability may, or may not, affect their parenting. 
Proposal 10–14 The Family Law Act 1975 (Cth) should be amended to provide that in parenting proceedings involving an Aboriginal or Torres Strait Islander child, a cultural report should be prepared, including a cultural plan that sets out how the child’s ongoing connection with kinship networks and country may be maintained. 
Question 10–6 Should cultural reports be mandatory in all parenting proceedings involving an Aboriginal or Torres Strait Islander child? 
Proposal 10–15 The Australian Government should, as a condition of its funding agreements, require that all government funded family relationships services and family law legal assistance services develop and implement wellbeing programs for their staff. 
11. Information Sharing 
Proposal 11–1 State and territory child protection, family violence and other relevant legislation should be amended to: · remove any provisions that prevent state and territory agencies from disclosing relevant information, including experts’ reports, to courts, bodies and agencies in the family law system in appropriate circumstances; and · include provisions that explicitly authorise state and territory agencies to disclose relevant information to courts, bodies and agencies in the family law system in appropriate circumstances. The relevant agencies can be identified through the proposed information sharing framework (Proposals 11–2 and 11–3). 
Question 11–1 What other information should be shared or sought about persons involved in family law proceedings? For example, should: · State and territory police be required to enquire about whether a person is currently involved in family law proceedings before they issue or renew a gun licence? · State and territory legislation require police to inform family courts if a person makes an application for a gun licence and they have disclosed they are involved in family law proceedings? · The Family Law Act 1975 (Cth) require family courts to notify police if a party to proceedings makes an allegation of current family violence? · The Family Law Act 1975 (Cth) give family law professionals discretion to notify police if they fear for a person’s safety and should such professionals be provided with immunity against actions against them, including defamation, if they make such a notification? 
Proposal 11–2 
The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare and wellbeing of families and children between the family law, family violence and child protection systems. The framework should include: · relevant federal, state and territory court documents; · child protection records; · police records; · experts’ reports; and · other relevant information. 
Proposal11–3 The information sharing framework should include the legal framework for sharing information and information sharing principles, as well as guidance about: · why information needs to be shared; · what information should be shared; · circumstances when information should be shared; · mechanisms for information sharing, including technological solutions; · how information that is shared can be used; · who is able to share information; · roles and responsibilities of professionals in the system in relation to information sharing; · interagency education and training; · interagency collaboration; and · monitoring and evaluation of information sharing initiatives. 
Question 11–2 Should the information sharing framework include health records? If so, what health records should be shared? 
Question 11–3 Should records be shared with family relationships services such as family dispute resolution services, Children’s Contact Services, and parenting order program services? 
Proposal 11–4 The Australian Government and state and territory governments should consider expanding the information sharing platform as part of the National Domestic Violence Order Scheme to include family court orders and orders issued under state and territory child protection legislation. 
Proposal 11–5 State and territory governments should consider providing access for family courts and appropriate bodies and agencies in the family law system to  relevant inter-jurisdictional and intra-jurisdictional child protection and family violence information sharing platforms. 
Proposal 11–6 The family courts should provide relevant professionals in the family violence and child protection systems with access to the Commonwealth Courts Portal to enable them to have reliable and timely access to relevant information about existing family court orders and pending proceedings. 
Proposal 11–7 The Australian Government should work with states and territory governments to co-locate child protection and family violence support workers at each of the family law court premises. 
Proposal 11–8 The Australian Government and state and territory governments should work together to facilitate relevant entities, including courts and agencies in the family law, family violence and child protection systems, entering into information sharing agreements for the sharing of relevant information about families and children. 
Proposal 11–9 The Australian Government and state and territory governments should work together to develop a template document to support the provision of a brief summary of child protection department or police involvement with a child and family to family courts. 
Question 11–4 If a child protection agency has referred a parent to the family courts to obtain parenting orders, what, if any, evidence should they provide the courts? For example, should they provide the courts with any recommendations they may have in relation to the care arrangements of the children? 
Proposal 11–10 The Australian Government should develop and implement an information sharing scheme to guide the sharing of relevant information about families and children between courts, bodies, agencies and services within the family law system.  
Proposal 11–11 The Family Law Act 1975 (Cth) should support the sharing of relevant information between entities within the family law system. The information sharing scheme should include such matters as: · what information should be shared; · why information should be shared; · circumstances when information should be shared; · mechanisms for information sharing; · how information that is shared can be used; · who is able to share information; and · roles and responsibilities of professionals in the system in relation to information sharing. 
Proposal 11–12 The Australian Government should work with states and territories to ensure that the family relationships services they fund are captured by, and comply with, the information sharing scheme. 
Question 11–5 What information should be shared between the Families Hubs (Proposals 4–1 to 4–4) and the family courts, and what safeguards should be put in place to protect privacy? For example: · Should all the information about services within the Families Hubs that were accessed by parties be able to be shared freely with the family courts? · What information should the family courts receive (ie services accessed, number of times accessed, or more detailed information about treatment plans etc)? · Should client consent be needed to share this information? · Who would have access to the information at the family courts? · Would the other party get access to any information provided by the Families Hubs services to the family courts? · Should there be capacity for services provided through the Families Hubs to provide written or verbal evidence to the family courts? 
12. System Oversight and Reform Evaluation 
Proposal 12–1 The Australian Government should establish a new independent statutory body, the Family Law Commission, to oversee the family law system. The aims of the Family Law Commission should be to ensure that the family law system operates effectively in accordance with the objectives of the Family Law Act 1975 (Cth) and to promote public confidence in the family law system. The responsibilities of the Family Law Commission should be to: · monitor the performance of the system; · manage accreditation of professionals and agencies across the system, including oversight of training requirements; · issue guidelines to family law professionals and service providers to assist them to understand their legislative duties; · resolve complaints about professionals and services within the family law system, including through the use of enforcement powers; · improve the functioning of the family law system through inquiries, either of its own motion or at the request of government; · be informed by the work of the Children and Young People’s Advisory Board (Proposal 7–13); · raise public awareness about the roles and responsibilities of professionals and service providers within the family law system; and  make recommendations about research and law reform proposals to improve the system. 
Proposal12–2 The Family Law Commission should have responsibility for accreditation and oversight of professionals working across the system. In discharging its function to accredit and oversee family law system professionals, the Family Law Commission should: · develop Accreditation Rules; · administer the Accreditation Rules including the establishment and maintenance of an Accreditation Register; · establish standards and other obligations that accredited persons must continue to meet to remain accredited, including oversight of training requirements; · establish and administer processes for the suspension or cancellation of accreditation; and · establish and administer a process for receiving and resolving complaints against practitioners accredited under the Accreditation Rules. 
Proposal 12–3 The Family Law Commission should have power to: · conduct own motion inquiries into issues relevant to the performance of any aspect of the family law system; · conduct inquiries into issues referred by government relevant to the performance of any aspect of the family law system; and · make recommendations to improve the performance of an aspect of the family law system as a result of an inquiry. 
Proposal12–4 The Family Law Commission should have responsibility for raising public awareness about the family law system and the roles and responsibilities of professionals and services within the system. 
Proposal12–5 The Family Law Commission should have responsibility for providing information and education to family law professionals and service providers about their legislative duties and functions. 
Proposal 12–6 The Family Law Commission should identify research priorities that will help inform whether the family law system is meeting both its legislative requirements and its public health goals. 
Proposal12–7 The Australian Government should build into its reform implementation plan a rigorous evaluation program to be conducted by an appropriate organisation. 
Proposal12–8 The Australian Government should develop a cultural safety framework to guide the development, implementation and monitoring of reforms to the family law system arising from this review to ensure they support the cultural safety and responsiveness of the family law system for client families and their children. The framework should be developed in consultation with relevant organisations, including Aboriginal and Torres Strait Islander, culturally and linguistically diverse, and LGBTIQ organisations. 
Proposal 12–9 The cultural safety framework should address: · the provision of community education about the family law system; · the development of a culturally diverse and culturally competent workforce; · the provision of, and access to, culturally safe and responsive legal and support services; and · the provision of, and access to, culturally safe and responsive dispute resolution and adjudication processes. 
Proposal12–10 Family law service providers should be required to provide services that are compliant with relevant parts of the cultural safety framework. 
Proposal12–11 Privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975 (Cth) should be maintained, with the following amendments: · s 121 should be redrafted to make the obligations it imposes easier to understand; · an explicit exemption to the restriction on publication or dissemination of accounts of proceedings should be provided for providing accounts of family law proceedings to professional regulators, and for use of accounts by professional regulators in connection with their regulatory functions; · an avoidance of doubt provision should be inserted to clarify that government agencies, family law services, service providers for children, and family violence service providers are not parts of the ‘public’ for the purposes of the provision; · the offence of publication or dissemination of accounts of proceedings should only apply to public communications, and legislative provisions should clarify that the offence does not apply to private communications; and · to ensure public confidence in family law decision making, an obligation should be placed on any courts exercising family law jurisdiction, other than courts of summary jurisdiction, to publish anonymised reports of reasons for decision for final orders. 
Question 12–1 Should privacy provisions in the Family Law Act 1975 (Cth) be amended explicitly to apply to parties who disseminate identifying information about family law proceedings on social media or other internet-based media?  
Question12–2 Should a Judicial Commission be established to cover at least Commonwealth judicial officers exercising jurisdiction under the Family Law Act 1975 (Cth)? If so, what should the functions of the Commission be?

09 November 2018

VET mess

Another instance of problems in the VET sector, with announcement by the Australian Competition and Consumer Commission that it has launched Federal Court proceedings against Productivity Partners Pty Ltd, trading as Captain Cook College, alleging systemic unconscionable conduct in breach of the Australian Consumer Law. T

The ACCC alleges that from 7 September 2015 the College, in seeking to improve its financial performance, removed consumer safeguards from its enrolment and withdrawal processes for online courses. ACCC Commissioner Sarah Court stated
We allege that Captain Cook College engaged in systemic unconscionable conduct designed to maximise profit at the expense of their students 
We are very concerned by Captain Cook College’s decision to make process changes that we will submit removed consumer safeguards. We allege that this significantly reduced the College’s ability to detect misconduct by its sales agents and assess a consumer’s suitability or participation in the course they had been enrolled in. 
We further allege that the removal of consumer safeguards increased the number of students that Captain Cook College enrolled and who remained enrolled, allowing the College to increase VET FEE-HELP payments from the Commonwealth,” 
The ACCC indicates that  approximately 5,500 affected consumers whose enrolment was processed during the period from 7 September 2015 have VET FEE-HELP debt, totalling over $60 million. Around 98% of those 5,500 people failed to complete any part of the course in which they were enrolled. Around 86% never logged in to their online course.

The ACCC also alleges that the College made false or misleading representations, engaged in unconscionable conduct and failed to provide unsolicited consumer agreement protections in its dealings with four individual consumers.  Further,  Ian Cook (former Captain Cook College CEO), Site Group International Limited (Site, the parent company ) and Blake Wills (former COO of Site) were knowingly concerned in the systemic unconscionable conduct.

 The ACCC is seeking pecuniary penalties, declarations, corrective notices, adverse publicity orders, finding of fact orders and orders requiring the implementation of a consumer law compliance program, costs and orders disqualifying Wills and Cook from managing corporations.

The ACCC notes
 There is currently a legislative mechanism available under the Higher Education Support Act 2003 (Cth) (HESA) to cancel VET FEE-HELP debts of consumers enrolled from 1 January 2016 if they were affected by “unacceptable provider conduct”, and satisfy other legislative criteria. No such mechanism currently exists for consumers enrolled before this date. ...   
On 20 September 2018, the Australian Government announced that it would introduce legislation to amend the HESA to allow for the cancellation of VET FEE-HELP debts of consumers that were affected by “inappropriate provider conduct”, including those who enrolled prior to 1 January 2016.
Only a cynic would regard the proposed legislation as putting a bandaid on the horse's door after the livestock have run off with the money while regulators were asleep.

06 November 2018

Consumer Data Right and Fintech Disruption

Technological Change and Financial Innovation in Banking: Some Implications for Fintech (Federal Reserve Bank Atlanta Working Paper 2018-11) by W. Scott Frame, Larry Wall, and Lawrence J. White comments 
Financial intermediation has changed dramatically over the past 30 years, due in large part to technological change. The paper first describes the role of the financial system in a modern economy and how technological change and financial innovation can affect social welfare. We then survey the empirical literatures relating to several specific financial innovations, broadly categorized as new production processes, new products or services, or new organizational forms. In each case, we also include examples of significant fintech innovations that are transforming various aspects of banking. Drawing on the literature on innovations from the 1990s and 2000s informs what we might expect from recent developments.
 The authors state
 Financial intermediation has changed dramatically over the past 30 years, due in large part to technological change arising from advances in telecommunications, information technology, and financial practice. This technological progress has spurred financial innovations that have altered many financial products, services, production processes, and organizational structures. To the extent that such financial innovations reduce costs or risks, social welfare may be improved. Of course, many financial innovations fail owing to fundamental design flaws or simply being replaced by better alternatives. 
A good example of technological change that has been dramatically reshaping the financial services industry is the ongoing shift from relying on human judgment to automated analysis of consumer data. This has taken what had been largely local markets for banking services and opened them up to nationwide competition from other banks and nonbank financial institutions. For example, retail loan applications are now routinely evaluated using credit scoring tools built using comprehensive historical credit registry databases. This automated approach eliminates the need to have a local presence to make a loan and substantially reduces underwriting and compliance costs for lenders, and the resulting data can be leveraged to improve further their risk measurement and management. Such a reliance on hard information also makes underwriting transparent to third parties and hence facilitates secondary markets for retail loans through securitization, which allows nonbank firms that lack deposit funding to compete via capital market financing. 
Given the growing importance of technology to financial services, it is perhaps not too surprising that the latest trend has been for technology-based firms to offer financial services, a development that is often called “fintech”. Many fintech firms combine automated analysis of retail customers with more user-friendly interfaces to provide services that are more convenient, and sometimes lower cost, to consumers. For example, “marketplace lending” platforms have emerged as a new organizational form that attracts borrowers with a simplified loan application process, leverages credit scoring tools to analyze these applications, and then matches creditworthy borrowers directly to investors. Furthermore, in some jurisdictions, machine learning (artificial intelligence) is now being leveraged to further improve retail loan risk measurement. 
Another set of recent technological developments are being touted as having the potential to have an even more fundamental impact on the financial system, potentially eliminating the need for trusted third parties such as banks. Whether and to what extent blockchains and cryptocurrencies will disrupt the existing financial system remains to be seen, as the technology is too new and immature to draw firm conclusions. However, the potential benefits of cryptocurrencies and blockchain technology are sufficient to attract considerable interest from tech-knowledgeable individuals, large financial organizations, and even major governments. 
This chapter surveys the research literatures pertaining to several specific financial innovations that have appeared in recent decades that were specifically driven by technological change. Particular attention is paid to innovations that may provide insights into the prospects for certain widely discussed fintech applications. To set the stage, we begin by providing some additional clarity about what is meant by financial innovation.
One of the more interesting discussions, for instance in relation to Australia's emerging Consumer Data Right regime (eg noted here), is
Marketplace lenders, which match consumers and small firms with lenders/investors using online platforms, have been popping-up all over the world. In the United States, these lending arrangements generally work in the following way: First, borrowers apply on the platform and are subject to automated underwriting based on standard criteria (such as a credit score) plus additional information and assigned a proprietary risk rating. Second, institutional investors purchase loans in bulk from the marketplace lenders, principally based on the risk ratings. The online marketplaces themselves generally have no direct exposure to the credit risk of the loans through their platforms, as they do not typically hold the loans or otherwise retain an interest in them or guarantee their performance. Instead, marketplace lenders principally generate revenue from loan origination and servicing fees. Marketplace lending is growing rapidly, but it remains a very small part of the $3.3 trillion U.S. consumer lending market. 
Much of what constitutes marketplace lending is actually not new. As discussed above, for many years, larger banks and finance companies have used credit registry data, credit scores, and borrower income information as inputs for statistical models to estimate risk and price consumer loans. However, marketplace lenders appear to be increasingly supplementing their models with additional information. Jagtiani and Lemieux (2018) find that LendingClub’s credit scores had an 80 percent correlation with FICO scores in 2007, but that the correlation drops about 35 percent for loans originated in 2014-15. The authors suggest that the change is likely due to a combination of LendingClub using alternative data and machine learning as the platform gains more experience with consumer lending. In complementary research that uses information from Prosper (which is a prominent marketplace lender), Balyuk and Davydenko (2018) discuss that lender’s use of secondary screening to identify suspicious applications and to verify automatically some borrower-provided information. The authors report that this additional screening has led to cancellation of 27 percent of the previously accepted loan applications since 2013. 
Vallee and Zeng (2018) observe that, while the fintech platforms are using their own models to grade loans and determine credit spreads, informationally sophisticated investors may be able to differentiate credit quality within these ratings grades. The authors derive a model allowing for such a split in investor sophistication, which results in a trade-off for the platform in terms of the contribution of sophisticated investors in improving loan quality but also creating adverse selection for less sophisticated investors. The volume-maximizing solution for the platform is to provide intermediate levels of screening and information to investors. Consistent with their model, the authors find that loans purchased by more informationally sophisticated investors were less likely to default for the universe of investments made through Lending Robot from 2014-2017. They also observe that one marketplace lender, LendingClub, reduced the amount of information it provided to investors and this caused a reduction in the ability of sophisticated investors to “cherry-pick” loans with lower default rates. 
Beyond marketplace lenders specifically, there has been a general increase in online lending. According to Fuster, Plosser, Schnabl, and Vickery (2018), fintech mortgage lenders have increased their market share from two to eight percent between 2010 and 2016. The authors find the biggest benefit provided by fintech lenders is an average reduction in the time from application to closing of 10 days (20 percent) after controlling for borrower and loan characteristics. They also find that fintech lenders can scale up the volume of mortgages they process more readily than can other lenders. 
The information technology underlying such an automated approach to underwriting is subject to significant scale economies (large fixed costs and very low marginal costs), which provides strong incentives to grow large quickly. This suggests that the consolidation of the marketplace lending industry is very likely. Moreover, as marketplace lenders become more successful, they are likely to find themselves facing increased competition from incumbent consumer lenders.
The paper complements the ACFS International competition policy and regulation of financial services report noted here.

05 November 2018

Estates

In Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 the NSW Supreme Court has consider a charitable endowment of interest to equity students.

The judgment states
The public gardens of Sydney are among the glories of our city. They are oases of recreation and research. Their staff are dedicated and skilled.
The Court has no doubt that the late Lorna May Backhouse (“Mrs Backhouse”) shared those sentiments. Her home was on the Old Bells Line of Road at Mount Tomah, not far from the Blue Mountains Botanic Garden at Mt Tomah (the “Mt Tomah Garden”), where she was a regular volunteer.
Mrs Backhouse died on 31 May 2010. By her will dated 4 January 1996, she left part of the residue of her estate to the plaintiff, Royal Botanic Gardens and Domain Trust (“RBGDT”), on trust to establish “The Lorna and Clive Backhouse of Mt Tomah Scholarship” to be awarded every two years to a member of staff at the Mt Tomah Garden (the “Scholarship Trust”). RBGDT received just over $1.1 million from Mrs Backhouse’s estate to form the corpus of the Scholarship Trust. With accumulated interest income, the current value of the Scholarship fund is approximately $1.3 million.
These proceedings were brought by RBGDT because it wishes to be able to award the scholarship annually and to more than one person in any year.
RBGDT and the defendant, the Attorney General of New South Wales, have agreed that, subject to the consent of the Court, an administrative scheme be ordered to give effect to RBGDT’s intention (the “Scheme”). Although the parties have agreed on the orders to be made, the administration of charitable trusts is a matter of public interest and it remains a matter for the Court to determine whether the orders should be made. These are the reasons why the Court is satisfied that the Scheme should be ordered. The Scheme is set out at the conclusion of these reasons as part of the orders of the Court. ...
RBGDT originally pressed for a cy-près scheme. Ultimately, the parties came to the view that there was real doubt whether it could be said that the Scholarship Trust could no longer be performed or that it had become impracticable. It followed that it was not clear whether there was a basis for the Court to order a cy-près scheme, either under its general jurisdiction or pursuant to s 9 of the Act. The parties’ concerns were well founded. However, because it is not necessary for me to decide, I do not express any view on whether a cy-près scheme could have been ordered.
The judgment goes on -
An affidavit sworn by the director of Horticultural Management for RBGDT succinctly stated the reasons for these proceedings:
“Number of scholarships 
29 The Backhouse Scholarship can only be awarded once every two years. 
30 There are a limited number of staff at Mount Tomah Garden. They have professional commitments at the Mount Tomah Garden. They also have personal commitments. It is challenging for staff to be away from the Mount Tomah Garden for an extended period of time. 
31 Therefore, a study trip is usually limited to one or two months. The cost of such a study trip is approximately $15,000.00 to $20,000.00. 
32 The annual income from the Scholarship Fund would easily be able to finance more than one scholarship every two years. 
33 If the Backhouse Scholarship could be awarded more often, more members of the staff would have an opportunity to use the Scholarship Fund, which would advance the knowledge in horticulture and/or plant physiology of more members of the staff. Cannot be used for group projects 
34 The terms of the Backhouse Scholarship restrict the scholarship to one member of the staff. 
35 A horticultural study trip usually involves a number of administrative and practical tasks such as collecting and collating seeds, plant specimens and other organic material, as well as other information. It is more practical if a number of persons travel together, rather than one individual. 
36 In addition, the Mount Tomah Garden may be able to negotiate better access to host botanic garden staff, leading horticulturalists and other leading practitioners if there are a number of members of staff involved rather than one individual. 
37 It would advance the knowledge in horticulture and/or physiology of plants of Mount Tomah Garden if the Scholarship Fund could be used to pay for a number of staff rather than one member of staff.”
The Scheme is a textbook example of maintaining the ends or purpose of Mrs Backhouse’s generous gift, but altering the means. Without intending by this observation to establish a legal test of general application, the Court has no hesitation in approving the Scheme because it has no doubt that if Mrs Backhouse’s views were able to be sought, she would express her satisfaction that her gift was to be used for the benefit of more people and more often to undertake the activities she wished to support. Approval of the Scheme will permit annual awards to be made and, if appropriate, to more than one person in any year.
There are only two matters concerning the orders the Court will make which require special mention.
First, it will be seen that the Scheme makes provision for the accumulation of income.
The Scheme originally presented for the Court’s consideration permitted RGBDT to mix the Corpus and the unspent income for the purposes of investment. However, it maintained the requirement for the Scholarship to be paid only from income. During the hearing I raised with the parties my concern that this approach might lead to administrative and accounting complications in keeping track of how the investment returns were to be treated from a mixed investment. Given further time to consider the matter, the parties have now adopted a different solution which, in my view, is a simpler one (see Clause 7(e) of the Scheme).
In my respectful view, there is a real public interest in ensuring that the administration of trusts such as those in relation to scholarships should be as straightforward as possible. Apart from the inherent advantage of ease of administration, it is also likely to ensure that the costs of administering such a gift are minimised. Simplifying such matters has at least two benefits. First, it may encourage other potential donors to make such gifts in the knowledge that as much as possible will be expended on the intended purpose rather than the administration of a gift. Second, it will also encourage organisations to be prepared to take such gifts. In many cases, such gifts are made to organisations which themselves are charities and whose administrative resources may be limited. The approach which the parties have now adopted in this case will be administratively simpler but still ensure that the Corpus is maintained.
Second, the orders include an order for the costs of the parties, including the Attorney General, to be paid out of the Scholarship Trust. Those costs will be payable as expenses or liabilities of the Scholarship Trust. In making the costs order proposed by the parties, the Court is satisfied that the Attorney General’s role in these proceedings was helpful, the Scholarship Trust itself is substantial, and the reason for the application arose from the consequences of the terms of the gift as provided by Mrs Backhouse. The Court is satisfied those circumstances make it appropriate for the Attorney General to receive his costs on the indemnity basis. In reaching this conclusion, I respectfully adopt and apply the decision of Leeming JA (sitting as a judge of this division) in Perpetual Trustee Ltd v Attorney General of NSW (Will of Hon G Nesbitt) [2018] NSWSC 1456 at [129]–[135].

Sousveillance

'Environmental Sousveillance, Citizen Science and Smart Grids' by Bruce Baer Arnold in Matthew Rimmer (ed) Intellectual Property and Clean Energy (Springer, 2018) 375-398 comments
 Enhancing water, energy, transport and communication infrastructure through a distributed or centralised sentience—‘smart grids’—involves questions about power. Those questions are as much about data, knowledge and environmental activism as they are about technical protocols for internet refrigerators, congestion pricing of road networks and remote reading of domestic electricity meters. This chapter explores who gets to collect, access and use data from smart grids. It highlights emerging debate about privacy, including systemic surveillance by grid operators/partners, and security. It discusses scope for environmental mashups that inform public policymaking and environmental activism but conflict with legal frameworks for the ownership of data and quarantining of knowledge. It looks ahead to ask whether citizens can establish participatory environmental monitoring networks that are independent of grids operated by network providers such as power and water utilities.

04 November 2018

Environment

'Clean Energy Justice: Charting an Emerging Agenda' by Shelley Welton and Joel B. Eisen in Harvard Environmental Law Review (Forthcoming) comments
The rapid transition to clean energy is fraught with potential inequities. As clean energy policies ramp up in scale and ambition, they confront challenging new questions: Who should pay for the transition? Who should live next to the industrial-scale wind and solar farms these policies promote? Will the new “green” economy be a fairer one, with more widespread opportunity, than the fossil fuel economy it is replacing? Who gets to decide what kinds of resources power our decarbonized world? In this article, we assert that it is useful to understand these challenges collectively, as part of an emerging agenda of “clean energy justice.” Mapping this agenda highlights the equity challenges that will attend the transition to clean energy, and allows for more comprehensive, creative approaches to legal and policy solutions. 
A cleaner energy economy does not ineluctably translate into a more just economy. We identify four considerations that will be critical to ensure that clean energy does not entrench widening inequalities in wealth and power: (1) how to fund the transition; (2) who benefits from the upsides of the new clean energy economy, including green jobs and new technologies like rooftop solar panels; (3) who participates in decisions about the shape of the new clean energy economy; and (4) how and where new clean energy infrastructure is sited. Drawing from available data, we describe why there are real risks that the gains of clean energy might be unequally distributed, while the costs fall on rural communities and non-adopters of new technologies, thus exacerbating inequality while greening the grid. And through original empirical research, we highlight the challenges of full and equal participation in the esoteric, technocratic procedures of energy law. 
The present moment is a critical one for bringing these diverse considerations together into this overarching agenda. The U.S. energy system is in the early days of a long transition away from fossil fuels towards clean energy. It is time for energy lawmakers and energy law scholars to better anticipate the distributive and procedural justice concerns that will attend this transition, and to forge new ways to address them.
''Sacrifice Zones' in the Green Energy Economy: Toward an Environmental Justice Framework' by Dayna Nadine Scott and Adrian Smith in (2018) 62(3) McGill Law Journal 861 comments
 The environmental justice movement validates the grassroots struggles of residents of places which Steve Lerner refers to as “sacrifice zones”: low-income and racialized communities shouldering more than their fair share of environmental harms related to pollution, contamination, toxic waste, and heavy industry. On this account, disparities in wealth and power, often inscribed and re-inscribed through social processes of racialization, are understood to produce disparities in environmental burdens. Here, we attempt to understand how these dynamics are shifting in the green energy economy under settler colonial capitalism. We consider the possibility that the political economy of green energy contains its own sacrifice zones. Drawing on preliminary empirical research undertaken in southwestern Ontario in 2015, we document local resistance to renewable energy projects. Residents mounted campaigns against wind turbines based on suspected health effects and against solar farms based on arable land and food justice concerns, and in both cases, grounded their resistance in a generalized claim, which might be termed a “right to landscape”. We conclude that this resistance, contrary to typical framings which dismiss it as NIMBYism, has resonances with broader claims about environmental justice and may signal larger structural shifts worth devoting scholarly attention to. In the end, however, we do not wholly accept the sacrifice zone characterization of this resistance either, as our analysis reveals it to be far more complex and ambiguous than such a framing allows. But we maintain that taking this resistance seriously, rather than treating it as merely obstructionist to a transition away from fossil capitalism, reveals a counter-hegemonic potential at its core. There are seeds in this resistance with the power to push back on the deepening of capitalist relations