Academic Policy Drivers

The NSW Auditor-General's Report to Parliament regarding the state's universities highlights dependence on overseas students, an issue across the sector.

The report 'analyses the results of our audits of financial statements of the ten NSW universities and their controlled entities for the year ended 31 December 2017'. The executive summary comments -

1. Financial reporting and performance 

Financial reporting 

The financial statements of all ten NSW universities and 66 out of 69 of their controlled entities received unmodified audit opinions. The number of uncorrected misstatements continues to decrease. Two universities improved the readability and understandability of their financial statements by simplifying their disclosures. Six universities finalised their financial statements earlier than in previous years. Eight universities are yet to quantify the impact of new accounting standards applicable in future years. An accounting issue was identified relating to the recognition and measurement of payroll tax liabilities on employees' defined benefit superannuation contributions payable to the superannuation funds. 

Recommendation: NSW universities should clarify the recognition and measurement of their liability for payroll tax on their defined benefit superannuation obligations before 31 December 2018. 

Sources of revenue from operations 

Government grants as a proportion of total revenue decreased over the past five years by 6.4 per cent. 

Revenue from overseas student course fees increased by 23 per cent in the last year and contributed $2.8 billion to the NSW university sector in 2017. Revenue from overseas students from four countries comprised 37 per cent of total student revenues for all NSW universities. 

Recommendation: NSW universities should assess their student market concentration risk where they rely heavily on students from a single country of origin. This increases their sensitivity to economic or political changes in that country. 

The research income of NSW universities was $1.1 billion in 2016 and has grown by 9.8 per cent between 2012 and 2016. 

Other revenues 

Total philanthropic revenue increased by 1.0 per cent from 2016 to $151 million in 2017. Average investment returns fell from 7.0 per cent in 2013 to 5.8 per cent in 2017, while total investments grew to $5.4 billion in 2017 from $3.5 billion in 2013. Low interest rates have made investment in fixed income assets less attractive for universities. Over the last five years universities have increased their investment in non-fixed income (or market based) assets by 67.1 per cent. Most NSW universities have established investment governance frameworks. 

Financial sustainability indicators 

Operating expenditure per equivalent full-time student load (EFTSL) increased by 3.0 per cent in 2017. For six universities, the growth in operating expenditure has exceeded the growth in operating revenue, reducing operating margins. The risk associated with narrowing margins is compounded where universities have a high reliance on student revenues from a single source. Sudden changes in demand can challenge the ability of those universities to adjust their cost structures. Eight universities have current ratios greater than one in 2017. 

Controlled entities 

Sixteen of the universities' 58 controlled entities that operate business activities reported losses in 2017 (15 in 2016). Overall, the financial performance of controlled entities operating business activities was positive, but results in 2017 were lower than in 2016. 

2. Teaching and research 

Achieving Australian Government target 

NSW universities met the Australian Government target of having 40 per cent of 25 to 34 year-olds with bachelor degrees ten years earlier than the original target date of 2025. The proportion of 25 to 34 year-olds in NSW holding a bachelor degree increased to 43.4 per cent in 2017. 

Graduate employment rates 

Seven universities exceeded the national average for full-time employment rates of their undergraduates. Four universities exceeded the national average for full-time employment rates of their postgraduates. 

Student enrolments by field of education 

NSW universities have increased enrolments in fields of study that align with known skills shortages in NSW identified by the Australian Government for 2016 and 2017. 

Achieving diversity outcomes 

NSW universities agreed to targets set by the Australian Government for enrolments of students from low socio-economic status (SES) and Aboriginal or Torres Strait Islander backgrounds. 

Low SES students 

Three universities exceeded the target of 20 per cent of low SES student enrolments in 2017. At the current rate, it is unlikely most universities will reach the agreed target by 2020. 

Indigenous students 

Six universities met their targets in 2017. The target is having a growth rate in the enrolment of Indigenous students that is more than 50 per cent higher than the growth rate of non-Indigenous student enrolments. 

3. Financial controls and governance 

Internal control findings 

Eighty-three internal control deficiencies were identified during our audits, of which 40 related to Information Technology (IT). 

High risk We identified a high risk finding in relation to storage of unencrypted username and password information on a database without appropriate access restrictions. We performed additional audit procedures to conclude that the control deficiency did not present a risk of material misstatement in the university's financial statements. 

Moderate risk Forty-three moderate risk control deficiencies were identified, of which 22 related to IT and 21 related to governance and financial reporting. Twenty-four findings were repeat internal control deficiencies, of which 18 related to IT. 

Recommendation: NSW universities should ensure controls, including information technology controls, are properly designed and operate effectively to protect intellectual property, staff and student data, and assets. Universities should rectify identified deficiencies in a timely manner. 

Cyber security Our audits identified opportunities to improve cyber security controls and processes to reduce risks, including risks relating to financial loss, reputational damage and breaches of privacy laws. 

Recommendation: NSW universities should strengthen their cyber security frameworks to manage cyber security risks. This includes developing:

• procedures, protocols and supporting systems to effectively identify, report and respond to cyber security threats and incidents 

• staff awareness training and programs, including programs tailored for a range of audiences. 

Use of credit card and work-related travel 

All NSW universities had appropriate published policies on the use of credit cards and have internal controls and processes to implement those policies. The risk of unauthorised use can be mitigated by regularly monitoring use, and reporting instances of abuse and non-compliance for investigation and disciplinary action.

Australian Qualifications Framework Review

The PhillipsKPA report on Contextual Research for the Australian Qualifications Framework Review comments

This report describes the process and findings of the contextual research for the Australian Qualifications Framework (AQF). 

The purpose of this research is to provide contextual information to inform the 2018 Review of the AQF. It comprised: • A comparison of the AQF against a selection of national qualifications frameworks from other countries • A consultation process and desk review of relevant documents and databases to research the breadth of the use of the AQF in both educational and non-educational settings in Australia. 

Structure of this Report 

The Executive Summary provides an overview of the main issues that stakeholders are asking to have addressed in the formal review and sets out issues for draft Terms of Reference for the review. 

Chapter 2 and Appendix 4 summarise national qualifications frameworks in Europe, South Africa, Asia, the Middle East, the Pacific including New Zealand, Canada and Mexico (the USA has no national qualifications framework). The AQF is compared on the basis of a number of key parameters with common international practice. 

Chapter 3 and Appendices 1, 2 and 3 discuss the current uses of the AQF in educational and non-educational contexts in Australia and summarises the implications of these uses for any changes to the AQF. 

Chapter 4 summarises the feedback we received from stakeholders on broader general issues relating to their experience with the AQF. These issues include the purpose, scope, structure, and benefits of the AQF. 

Chapter 5 summarises the feedback received from stakeholders relating to detailed aspects of the AQF levels, their descriptors and their relationship with qualifications. These issues are organised according to the levels of the AQF (pre-tertiary and 1 to 10).

The principal findings are -

At the outset it is important to note that virtually all of the substantive comments made in submissions to the 2009 – 2011 AQF review are still at the forefront of respondents’ concerns in 2018. These comments are summarised in Chapter 4.1. The 2013 revised draft of the AQF, while addressing some concerns, does not appear to have dealt with the major issues that continue to create problems in interpretation and implementation of the AQF. Further issues were also identified in the light of developments since 2012. Prominent among these more recent developments is the widespread trend towards micro-credentials, flexible delivery options and mechanisms to assist learners to construct their own programs, sometimes across sectors, to meet individual learning needs. 

The AQF is very widely used across the Australian tertiary sectors and is generally accepted as a useful instrument with both national and international benefits.

The AQF is embedded in a broad range of legislation, policies, regulations and processes at government level, in statistical and data collections, in some industrial agreements, in the processes of quality assurance and accreditation by registration agencies and professional bodies as well as in the policies and processes of educational institutions that provide vocational and higher education.

The AQF is also impacted by and impacts upon related policy areas such as workforce planning, skills development and migration policy and cannot be viewed as a stand-alone educational instrument. Other reviews, concurrent with this one, such as the Training Package Reform consultation (Department of Education and Training), proposed review of the ANZSCO occupations database (ABS), design of a new employment services model for 2020 (Department of Jobs and Small Business), and the visa reform agenda (Department of Home Affairs) will have significant implications for the AQF. 

It is evident from the submissions by both regulators, ASQA and TEQSA, that there are issues related to implementation of the AQF by both regulators and providers that require attention. Among other things, these issues include ambiguity in terminology, inconsistencies in qualifications descriptors, levels criteria and volume of learning. The same issues are raised in one form or another by many other respondents to the consultation process and are outlined in this executive summary. 

In the 1990s and early 2000s, Australia was a global leader in the development of qualifications frameworks. However, other countries, particularly in Europe, have moved beyond the concept of qualifications frameworks principally as a tool to establish transparency and equivalence of qualifications, towards qualifications frameworks as a tool to facilitate an agile workforce suited to rapid technological, industrial and social change. This evolution in emphasis is in its early stages and reflected more at policy level than implementation, nevertheless it is widespread in its stated intent. Refer to Chapter 2, section 2.2.5 for the variety of policy objectives that are stated in recently revised international frameworks. 

Prominent within the changing policy context for qualifications frameworks is a desire to design them to allow and encourage more flexible construction of learning pathways. Flexible and multi-directional pathways rather than simple hierarchical ones (as the AQF is perceived to be) are regarded as better suited to lifelong learning and rapid retraining to meet new technological challenges. Internationally, qualifications frameworks are being designed with a view to encouraging cross-sectoral collaboration and the engagement of employers and businesses in both designing and delivering ‘on-time’ and ‘in place’ learning experiences that can be recognised formally as part of a qualification. While the AQF allows this possibility, the complexity of the regulatory and sectoral contexts within which it sits is perceived by many stakeholders to impede this level of responsiveness. 

Australia differs from many European countries that have higher levels of employer engagement in the accreditation of education and training opportunities, especially at sub-qualification level. There has been a reduction in traditional apprenticeship programs and the struggle for “work placement” is an increasing problem for professional training in universities. The possibility for accreditation of in-house learning or on the job training in employment and non-educational settings is left in the hands of a virtually unregulated system of individual institutional assessments and recognition of prior learning (RPL) arrangements. 

While RPL and workplace learning are encouraged by the AQF there are no mechanisms within the Australian system to assign levels to ‘non-standard’ learning options, or to regulate or quality assure credit towards formal qualifications for in-service or informal learning or micro-credentials in a way that ensures national or international consistency. The need for these sorts of practices is growing in Australia. For example, in some sectors, particularly information technology, students are compiling a number of short courses and skill sets together into a package that meets industry needs. The AQF does not readily facilitate/accommodate this. The potential use of block-chains to access and verify this type of qualification is also the subject of considerable discussion. Some other countries maintain registries of individual learning units offered by reputable but non-regulated providers that have been accredited at specified levels for specified credit.  

A considerable proportion of the framework consists of policies which detail the responsibility of qualification developers, accrediting authorities and issuing organisations. With the establishment of the legislative base underpinning TEQSA and ASQA it would be less confusing for international and lay audiences if this regulatory detail were removed from the Qualifications Framework per se and added to the TEQSA/ASQA conditions for registration of providers and accreditation of courses. Providers point out that the processes for meeting and demonstrating AQF compliance are largely dictated by TEQSA and ASQA at the moment. Very few international qualifications frameworks have supporting policy documents packaged as part of the framework as does the AQF. In some countries, the Agency responsible for maintaining and administering the qualifications framework is also the qualifications and/or quality assurance agency, in others the framework is simply an information and support tool and has no regulatory role. Most take the approach of briefly describing the policy areas in the framework document while referring for details to the website of the responsible agency. A submission to the contextual research by TEQSA highlights a considerable number of issues relating to the legal status of the AQF and its associated policies which should be addressed in the review. 

While the overall value of the AQF is well recognised in Australia difficulties in its design, expression and the conceptualisation of the levels have been identified by all sectors and with enough consistency to warrant their inclusion in the terms of reference for the formal review. The substantive issues related to the levels and descriptors raised by stakeholders are addressed in Chapter 5, which could be used as a reference point for the review. Widespread concern over difficulties in interpreting and implementing levels 5, 6 and 8 in particular is expressed in the responses to the consultation, although levels 1 to 3 and 9 to 10 also present problems and anomalies. 

The AQF relies heavily on notional volumes of learning expressed in years of study which is out of step with modern international practice. Movement towards a system based on credit point values related to notional average hours required to achieve learning outcomes would be in keeping with international practice and would have the added advantage of facilitating a common currency for a national credit transfer system to support pathways and recognition of non-formal learning. The problem with volume of learning is, however, more complex and has created significant difficulties with the implementation of the AQF at most levels.

The AQF in its current form is exceedingly complex and rich in semantic detail. It is not easily understood by the average reader or by international audiences or the wider community who are unfamiliar with the history of its development. In its printed form the AQF is four times longer than the New Zealand Qualifications Framework. Some users report confusion over terminology, ‘technical lingo’ and question the need for or relationship between both levels criteria and qualification descriptors. 

Qualifications Frameworks in many European countries are viewed as a valuable resource for the general public and employers in informing their educational and employment choices. Consequently, explicit emphasis is placed on the governance and promotion of frameworks and on raising awareness of their utility as guides to personal decision making and workforce training and planning. Neither the governance framework nor the physical expression of the current AQF facilitates its use as a communication tool for the wider audience beyond course designers and regulators. 

Consistent with the ongoing evolution of national qualifications frameworks the AQF review should consider the need for a governance framework that will provide the ability to monitor and respond to changing needs and policy objectives and to clarify and simplify its position within the education and qualifications landscape. The consultations for this contextual research revealed that there is considerable lack of clarity both nationally and internationally about the standing and purpose of the AQF within the relatively complex Australian landscape of jurisdictional/federal, general/foundational, school, vocational, higher, postgraduate, professional and continuing education. Most international qualifications frameworks are administered by statutory authorities appointed by governments or by branches of ministries and government education agencies. It is common for these authorities to also have steering or advisory committees consisting of stakeholders. The Frameworks are surrounded by or incorporated within a relatively predictable web of regional frameworks, industry advisory bodies, qualifications agencies, quality assurance agencies and education providers who in some countries are given significant autonomy. 

Reinforcing the need for a responsive governance structure for the AQF is a comment provided by one senior university executive: The AQF functions as a public sector instrument concerned with compliance, standardisation and predictability. ……‘future proofing’ is premised on a notion of the AQF as a kind of fixed point. The tertiary sector environment is anything but fixed, with many of the changes ….. coming from the public sector [policy]. Other significant changes include increased demand for micro and flexible credentialing across qualification level from the private sector. It will be challenging for the AQF to remain a useful contemporary instrument. The continuing dynamic nature of competition, changing public sector expectations and policy create a dynamic tertiary sector environment. Timely and responsive mechanisms will be required to ensure that the AQF does not constrain institutional and sector competitiveness, nationally and internationally.

The report  offers recommendations regarding the review Terms of Reference

The following suggested issues could be considered in developing terms of reference for the review and are grounded in the findings summarised above, specifically the aspects of the current framework that impede its effectiveness, the changing dynamics and demands of both education and employment, and international trends in qualifications frameworks and policy. The principal task for the review is to position the AQF as an instrument that is responsive to emerging needs and able to be readily understood and used by its various audiences, including international ones. 

1. Review the structure and description of the AQF components (levels, qualifications and relevant explanations) including the extent to which: a) the relationships between levels and qualifications are clear, appropriate and unambiguous; b) the levels as currently defined are appropriate and fit for purpose; c) the descriptors are expressed in simple language that supports ready interpretation; and d) the knowledge, skills and capabilities reflect and support the full range of learning outcomes required for adaptation and successful participation in work and life. 

2. Consider the issue of volume of learning including: a) whether the volume of learning should cease to be expressed in the AQF in terms of calendar years and be replaced by a credit point system; b) whether the disparities in volume of learning between qualifications at the same level can be supported by additional information such as prerequisite learning to dispel confusion; and c) whether the volume of learning can be aligned with other measures of learning volume employed in VET sector specifications and requirements. 

3. Review the positioning of vocational education and training (VET) and higher education (HE) qualifications in the AQF and consider: a) whether more explicit differentiation of VET and HE qualifications would be beneficial in general and specifically at levels 5, 6 and 8; b) whether the variety of qualification titles used at the same levels for VET and HE continue to be relevant and meaningful in both the national and international context; c) means by which any implication of a status hierarchy from VET to HE qualifications can be mitigated through changes to the structure or language of the AQF; and d) means by which greater consistency in regulation of compliance with the AQF can be achieved between HE and VET sectors. 

4. Review the desirability and feasibility of developing a system for the quality assurance and incorporation within the AQF of sub-qualification credentials such as skill sets, enabling and foundation courses, and in-service and advanced training provided by industry or professions. 

5. Consider whether the AQF policies (issuance policy, pathways policy, register policy, addition or removal policy, and principles and processes for alignment with international qualifications frameworks and relevant explanations) (a) are appropriate and fit for purpose and (b) should remain within the AQF itself or be rationalised with TEQSA/ASQA registration and accreditation guidelines. 

6. Review ways in which the AQF could more effectively facilitate learning pathways and mobility within and between levels, sectors and qualifications. 

7. Consider what changes may be required to AQF governance arrangements, to the AQF itself or to regulation that references the AQF to ensure consistency of its application and ongoing monitoring and review. 

8. Given the findings from issues 1 to 7, recommend any necessary changes to the AQF and devise an implementation plan for achieving the changes.

Retention in Higher Education

The final report by the Higher Education Standards Panel on Improving retention, completion and success in higher education comments

 Higher education attrition is an issue that has concerned government and institutions for decades, and, indeed, is an issue that continues to cause concern.

Extensive research over the years has consistently shown the drivers of attrition to be both student and institution-based and many recommendations have focussed on institutions increasing support and services for students and holding institutions to account for student outcomes.

Australia’s higher education attrition rates have been relatively stable for over a decade and it is clear many institutions already invest significantly to support their students. However, it is also apparent that some institutions are more successful than others at retaining students and their methods and strategies are of interest to the entire higher education community.

Innovation in higher education and the movement away from a traditional higher education experience to suit current and future labour market needs must be taken into account in current discussions on attrition.

This final report of the Higher Education Standards Panel (the Panel) explains how this examination of retention, completion and success in higher education has come about. It looks at what the higher education sector is saying about the factors that impact on these issues and makes recommendations about how Australia can further build on its success in supporting students to succeed in their higher education studies. 

The story so far

In September 2016, following the release of 2015 student data by the Department of Education and Training (the department), media reports suggested that high attrition rates are symptomatic of poor admission standards; the lower a student’s Australian Tertiary Admission Rank (ATAR) the greater the risk of non-completion; and as a result of the demand driven system, higher student numbers are leading to greater numbers of student drop-outs.

The Panel argued in its November 2016 report, Improving the Transparency of Higher Education Admissions, that this media coverage was alarmist. Reports misrepresented the scale of the problem, using attrition rates that were unadjusted for the impact of students changing courses or institutions. However, the Panel also considered that it is not appropriate to be complacent about the issue and institutions should seek to reduce the levels of non-completion.

In response to the Panel’s report, the Minister for Education and Training, Senator the Hon Simon Birmingham asked the Panel to examine Australian higher education completion and attrition to ensure that students have the best chance of successfully completing their enrolled units, courses and qualifications.

  In June 2017 the Panel released a discussion paper Improving retention, completion and success in higher education. This paper outlined the long history of concern about higher education student attrition and the factors driving it. Since the 1950s, when the Australian Government claimed a role in higher education funding, there have been numerous reviews and various recommendations by successive governments on how to support students to complete their studies. The reviews consistently reported drivers of attrition to be the learning environment, teaching ability of lecturers, lack of student engagement, high student/staff ratios, lack of student support and personal factors relating to the student, such as financial, emotional, health or other life events. Recommendations from these reviews to reduce attrition included better quality support services, more flexible entry requirements, improved teaching quality and ability, a more supportive institutional environment, monitoring student progress and providing study support where necessary and making institutions’ completion rates transparent.

The Panel’s discussion paper identified that while there have been fluctuations in retention - and variations by institution - the attrition rate for Australian universities in 2014 is fundamentally similar to what it was in 2005, despite some movement during that period . The attrition rate was 15.04 per cent in 2005 and 15.18 per cent in 2014. The discussion paper also highlighted the wide variation between university attrition rates, including data that suggests some institutions are supporting higher-risk students to succeed more successfully than others.

An analysis using statistical regression techniques, published in the discussion paper, showed that student characteristics only explained a small part (22.5 per cent) of the overall variation in student attrition. The statistical evidence suggests that the institution is a more important factor in explaining attrition than the basis of admission, the student’s ATAR, type of attendance, mode of attendance or age. This analysis is available at Appendix A.

Students at non-university higher education providers (NUHEPs) have higher attrition rates and lower completion rates compared to Table A and B universities. However, their record is improving. The attrition rate for NUHEPs in 2007 was 35.9 per cent and this has dropped to 26.2 per cent in 2014. The completion gap between universities and NUHEPs has slightly narrowed.

The discussion paper pointed out that while international higher education completion rates must be compared with caution, because of the wide variety of systems across the world, in Australia, 70 per cent of new entrants in 2009 who enrolled in a bachelor degree had completed by 2014. This is around the OECD average of 69 per cent. Earlier data suggested the completion rate of graduates in 2011 in Australia was 82 per cent, above the OECD average of 70 per cent. However, it should be noted the earlier OECD data used a different methodology.

  The Panel posed 12 questions to guide discussion on issues relating to retention, completion and success in higher education. These questions looked at whether there should be expectations of completion, in terms of completion rates and the speed of completion, how data collection and the transparency of data could be improved and how students could be supported to make the right choices and then complete their studies once they are enrolled in higher education. The Panel asked about best practice and how this could be shared across the sector, as well as whether there needs to be any further powers provided to the Tertiary Education Quality and Standards Agency (TEQSA) to ensure that institutions comply with the Higher Education Standards Framework in supporting students to succeed.

Stakeholders’ views

Forty-three written submissions were made in response to the Panel’s discussion paper from individual institutions and peak bodies (Appendix D). In addition, the Panel conducted face-to-face hearings over two days with stakeholders, including peak bodies in the university, NUHEP, careers and equity sectors, deputy vice-chancellors, student groups, academics and researchers.

There was general support for the Panel’s view that there is not an immediate crisis in higher education attrition, with attrition rates remaining relatively stable over the past 12 years. There was also general agreement, including from Universities Australia, that there is ‘no reason for complacency’. There was acceptance that attrition represented a financial loss to government and students themselves and there should be a sustained effort to improve completion rates.

Many submissions noted the changing economy and workforce and the increasing proportion of students studying part-time and taking time off from study. They highlighted that attrition is often a reflection of balancing work, personal commitments, financial circumstances and study. While course completion should remain a primary focus for institutions, there will never be zero attrition. If standards are to be maintained it is inevitable that some students would still fail their courses. Not all attrition should be viewed negatively - especially if higher education proved not to be the best fit for the student.

Some stakeholders warned against setting arbitrary expectations around rates and speed of completion; noting they are difficult to establish. However, measurement of completion is important.

Aspiration building, early intervention prior to admission through outreach and sound career advice before and after admission to higher education were highlighted as extremely important factors in assisting students making the right choices. The range of work already being undertaken by institutions in terms of student outreach, often funded by the Higher Education Participation and Partnerships Program (HEPPP), was noted and there were many calls for greater investment in career education for primary and high school students, as well as for mature-age people and people already studying within a higher education institution.

There was general acknowledgement that, as a result of the new economy, digitalisation and complex factors leading to attrition, institutions should be continually adjusting curriculum, pedagogy and academic policy design to meet student needs and expectations.

A student-centric institutional culture and well-targeted and well-communicated support services have a positive impact on student retention, completion and success. Many institutions cited examples of their own work in developing a strong student culture and of their successful student support services, though there were only limited examples of attempts to integrate these measures through comprehensive retention strategies. There was broad consensus that more needed to be done across the board for external students and for students suffering mental illness or emotional stress.

Some submissions noted the complexities around evaluating the success of targeted interventions and support services. A number of respondents pointed out that approaches that work for one cohort or institution may not necessarily work for another and what works for one faculty or field of study may not be scalable across the whole sector. However, stakeholders were generally enthusiastic about, and provided a range of suggestions for, new ways to share best practice. Consistency in language around completions and attrition is important to stakeholders. There were many suggestions on how changes to the collection and reporting of data could better reflect the situation of retention, completion and success in higher education. Given how difficult it is to understand the increasingly complex pathways between school, vocational training, higher education and employment, there was almost unanimous support for a common student identifier across tertiary education. Indeed, many respondents called for a common student identifier across all levels of education, including school. Such a scheme has been implemented in New Zealand. Some submissions noted the Government’s proposed introduction of a 7.5 per cent performance-contingent element to the Commonwealth Grant Scheme and the metrics that may sit behind this. This policy and any criteria and metrics that might contribute to its implementation are beyond the scope of this review. The Panel’s view In this report, the Panel reaffirms there is no immediate crisis in higher education. Members are nevertheless concerned about the imbalance of attrition rates between a small number of institutions and between external and internal or mixed modes of educational delivery. These issues were highlighted in the discussion paper. The Panel considers that significant improvements in provider approach are possible to maximise students’ chances of successfully completing their studies. The Panel recommends as a first priority that institutions must ensure students who have the capacity to succeed in higher education are given the best chance to complete their studies through the appropriate provision of academic and other support as required by the Higher Education Standards Framework.

This report makes recommendations to improve the guidance available to school students and mature-age people prior to enrolment and the provision of careers advice to students by higher education institutions. It suggests a variety of ways in which institutions could further support students to complete their studies. The Panel makes recommendations specifically in relation to every institution developing its own retention strategy, support for external students and the need for an institutional strategy and implementation plan to assist students with mental illness.

The Panel also encourages the greater development of nested courses – where appropriate and compliant with the Australian Qualifications Framework (AQF). This means that qualifications such as a diploma, advanced diploma or associate degrees can be incorporated within a bachelor degree, with appropriate exit points. This course design can maximise the opportunity for students who successfully complete part of a course but do not fully complete a bachelor degree to exit with a meaningful and economically useful qualification. It should not be anticipated that each entrant to higher education will leave with a bachelor degree.

The Panel is of the view that more streamlined and widespread sharing of best practice across the higher education sector would continue to build knowledge and capacity in all these areas.

The report suggests clarity of definitions and enhanced transparency in relation to attrition, completion, retention and student success would assist prospective students to improve their decision-making about study progression. It would also benefit institutions and policy-makers. The Panel’s recommendations include publishing attrition data at more disaggregated levels and the introduction of a common student identifier across tertiary education; with a view to working with states and territories to establish a common identifier across all levels of education. For the first time, this would allow a holistic view of an individual’s educational progress and a national picture of successful education pathways to be developed over time.

With this diversity of objectives in mind, the Panel offers 18 recommendations to help ensure students have the best chance of successfully completing their studies and transitioning into the workforce.

The Panel's  recommendations are

Expectations of completion in the current context 

1. As a first priority, institutions should ensure students who have the capacity to succeed in higher education are given the best chance to complete their studies through the appropriate provision of academic and other support services as required of them by the Higher Education Standards Framework. 

Supporting students to make the right choices 

2. School students and mature-age people need better access to effective career advice. The National Career Education Strategy, due to be released in 2018, should be closely monitored to identify improvements in the area of student career advice, including study options and pathways, and information about the post school learning environment. This strategy should also be expanded to include mature-age students or a separate strategy should be initiated for this cohort. 

3. Career advice cannot be left to schools. Every higher education institution should ensure that their students are given the opportunity for career planning and course advice on entry to the institution and as they require it throughout their studies. 

4. Where and how student success, completions, retention and attrition data is made accessible to students should form part of considerations by the Department of Education and Training in the establishment of a new online information platform. 

Supporting students to complete their studies 

5. Every institution should have its own comprehensive student-centred retention strategy, which is regularly evaluated. These strategies could include institutional retention benchmarks and, as appropriate, processes for entry and exit interviews, the integration of data-based risk analytics and targeted support interventions, a suite of support services and a means to re-engage with students who have withdrawn. 

6. Institutions should automatically review the enrolment of all students who have not engaged in their studies to an agreed level by the census date. 

7. Institutions should pay particular attention to ensuring their support services are meeting the needs of external students who are not regularly attending campus because these students are identified as at risk of not completing their studies. 

8. Every institution should have an institution-wide mental health strategy and implementation plan. 

9. Institutions should increasingly offer nested courses, which are appropriate and compliant with the Australian Qualifications Framework, to provide students with a greater range of exit options with meaningful qualifications.   

Sharing best practice 

10. There is already a wide variety of approaches to sharing best practice within the higher education sector. However, these approaches are not always scalable or frequently evaluated. Peak bodies should collaborate to develop streamlined processes to collect and disseminate best practice, with support from the Department of Education and Training. A dedicated website could be established for this purpose. 

Clarity of definitions and enhancing transparency 

11. The higher education community should work together with the Department of Education and Training to ensure a greater understanding and clarity of definitions in attrition, retention, success and completions data. The Department should continue to measure and publish adjusted attrition, retention, student success and completions data. 

12. At present some institutions have a trimester structure of teaching and this can lead to different timings for assessment, graduation and reporting. As a result, students who complete Semester 1 and 2 and enrol in Semester 3 but not Semester 4 are recorded as not completed. Consequently, the definition of attrition should be changed to reflect the trimester teaching structure. 

13. The adjusted attrition rate should be the primary measure of attrition published for domestic commencing bachelor students. 

14. The Department of Education and Training should further develop and publish the calculation of attrition rates that take into account key student characteristics so as to better reflect institutional differences. 

15. The Department of Education and Training should report attrition among non-university higher education providers on a similar basis to its reporting of Table A and B universities. 

16. The Department of Education and Training should publish attrition data at more disaggregated levels, for example, by institution, by study area and by student characteristics. 

17. The Department of Education and Training should establish a common student identifier to better understand student pathways across tertiary education with a view to working with State and Territory Governments to establish a common student identifier across all levels of schooling. 

Accountability and regulation 

18. TEQSA already has sufficient powers in relation to provider compliance with the Higher Education Standards Framework in terms of the identification and tracking of students at risk with support strategies in place, analysis of student performance and evidence on reasons for attrition. TEQSA should continue to take account of every institution’s retention performance in assessing whether these standards are being met.

Legitimacy, Funding and the NIH

Research Funding's 'Endorsement Effect' on Scientific Boundary Work and Research Production: Government Legitimization of Alternative Medicine (University of Hong Kong Faculty of Law Research Paper No. 2018/023) by Ryan Whalen comments 

This article demonstrates how science and technology policy can have an “endorsement effect” that legitimizes and increases the salience of scientific research areas. The validation and increased attention provided by state funding policies can support the discursive boundary work of interested parties as they seek to situate research fields within mainstream science. Increased validity and attention can subsequently lead to increased research activity, above and beyond that funded by the state. This article demonstrates the endorsement effect by examining how the founding of the NIH’s Office of Alternative Medicine affected both the discourse surrounding the legitimacy of alternative medicine, and the production of alternative medicine related patents. The existence of this endorsement effect suggests that policymakers should consider both the direct effects that innovation policy might have on researchers’ incentives as well as the endorsement effects it can have on the research system.

MyHR Community Consultation

Have we taken on board the lessons from variois e-health policy trainwrecks in the UK, such as care.data? Embraced notions such as a rigorous privacy impact assessment?

The summary report by HealthConsult for the national Department of Health regarding Development of a framework for the secondary uses of My Health Record Community Consultation comments 

HealthConsult, as leader of a Consortium consisting of two commercial Firms and eight subject matter experts, was engaged on 24th June 2016, by the Department of Health (the ‘Department’) to: “develop a Framework for the secondary use of data in My Health Record system ” A key task in developing the Framework was to design and conduct a consultation process to facilitate a public conversation about the future possible secondary uses of MHR system data (there is currently no secondary use). Stakeholders engaged strongly with the consultation process, with 714 individuals attending webinars (159), workshops (256), interviews (25), or completing a written survey (274); and 80 organisations/individuals making a written submission. This document summarises the key themes that emerged under each of the consultation questions (grouped as appropriate). It is only a report of the consultation process, and it should not be read as the likely content of the Framework.

That's a useful caveat given the likely disconnect between the Department's development processes, the outcome and the consultation.

The summary report (the full report doesn't appear to be available) states  

Key conclusions that can be drawn from the consultation process are:

• There is strong support across all stakeholder groups for the secondary use of MHR data, with a common view being that this emerging public asset must be used for public benefit 

• Stakeholders support a wide range of research, policy, program and service development uses, but use for solely commercial or non-health purposes is not supported by the vast majority 

• Stakeholders do not support the secondary use of MHR data for the purposes of remunerating or for audits or other processes aimed at evaluating the performance of clinicians 

• There is some support for secondary use of MHR data by commercial Firms as long as there is a public health benefit, but there are also some who oppose any secondary use by a commercial Firm 

• There is some support for allowing secondary use of MHR data by overseas users (to support international research collaborations), but the prevailing view is that data must be stored in Australia 

• Stakeholders have provided guidance on a wide range of principles to be applied to guide the release of MHR data for secondary use, and strongly advocated drawing from the best of existing approaches 

• There is strong support for an independent body to govern the secondary use of MHR data, but there is also support for governance by the Department of Health, Australian Institute of Health and Welfare (AIHW) and, to a lesser extent, Australian Digital Health Agency (ADHA) 

• Whatever the governance authority, stakeholders want membership of the governance committee to include independent experts, as well as strong consumer and Indigenous representation 

• Most stakeholders believe that ethics approval should be obtained for secondary use of deidentified MHR data, and applications for data access should demonstrate a public benefit 

• In addition, for secondary use of identified MHR data, most stakeholders believe that informed consumer consent should be obtained 

• There is strong support across stakeholders for data linkage of MHR data to other (particularly health) data sets to be done by an Accredited Integrating Authority, to further leverage benefits from the MHR system 

• Stakeholders believe that privacy protection is paramount and a ‘privacy by design’ approach should be adopted in developing the Framework 

• Stakeholders have provided guidance on a wide range of approaches to privacy protection and advocated that a ‘best of breed’ approach is taken in developing the Framework 

• Stakeholders believe that MHR data should be released for secondary use using a variety of mechanisms determined using a risk based approach, ranging from publication of key statistics, through to the release of controlled data (data cubes), through to access to unit record data in a secured environment • Stakeholders strongly support a robust range of monitoring and assurance process from users signing confidentiality undertakings through to random audits of users to ensure that any MHR data released for secondary use is only used for the approved purposes 

• Stakeholders have provided guidance on risk mitigation strategies around secondary use of MHR data that includes users meeting minimum standards for data security infrastructure, users being trained and/or accredited, and users providing annual and end-of-project compliance reports 

• Stakeholders strongly support a public register that includes details of requests for access to MHR data for secondary use as well as publications reporting the outcomes of the secondary use 

• Stakeholders have a mixed view of penalties for misuse of MHR data with some considering the existing arrangements adequate and others advocating a stronger penalty regime 

• Stakeholders believe the current policy/legislative environment is complex, and they would like to see changes to harmonise the various polices/legislation to be explicit around secondary use of data

Overall, the stakeholder engagement process has generated considerable and very valuable input into the development of the Framework. There is a widespread recognition of the public good benefits that can be obtained through the secondary use of MHR data. There is also a strong understanding of the risks, and it is clear that the initial Framework must take a cautious approach to ensure that the existing social (and cultural) licence to use the MHR data for secondary purposes is not eroded. Subsequent updates to the Framework may take a more liberal approach, once processes, procedures, mitigation strategies, and so on have been tried, tested and refined. To this end, an evaluation of the effectiveness and impact of the initial Framework after two years or so of operation would be a very worthwhile endeavour. 

The stakeholder engagement process also generated a variety of inputs on the next steps in the Framework development process, which can be summarised as:

• Stakeholders advocate the release of a draft Framework for further public consultation, and many of them have expressed a desire to be involved in that process 

• Stakeholders advocate much stronger engagement with the Indigenous sector in the development of the Framework, specifically the consideration of a separate Framework and separate governance process for the secondary use of MHR data about Indigenous people 

• There is a widespread view amongst stakeholders that development of the Framework should take into account the Government’s response to the recommendations of the Productivity Commission’s Inquiry into Data Availability and Use (it is understood that this response is not yet available) 

• Stakeholders believe that the question of charges for access to MHR data for secondary use should be directly addressed in the Framework 

• Stakeholders believe that consumers should be offered the opportunity to expressly consent (dynamic consent is preferred) to, or opt out of, the use of their MHR data for secondary purposes, and that implied consent through an opt out process around primary use is inferior 

• A number of stakeholders believe that the final draft Framework should be subject to a full Privacy Impact Assessment 

• Many stakeholders advocate for a communications campaign (with tailoring as required for Indigenous and CALD communities) to make the public aware of the intended use of MHR data for secondary purposes (and the associated benefits).

HealthConsult will proceed to develop the draft Framework with regard to the input generated via the stakeholder engagement process. Advice on the process issues raised by stakeholders will be appreciated.

Fictions and Personhood

'From Weakling to Superhero: The Economics of Captain America' by John Robinson and William C. Wood comments 

We examine economic themes surrounding the superhero Captain America. When Steve Rogers became a super soldier, his production and consumption opportunities were expanded greatly, and yet the effect on his lifetime realized utility seems ambiguous. We explore the possibility that Captain America became wealthy through the power of compound return on investment during his stay of nearly 70 years under the Arctic ice. The society and economy that he returned to were much different from what he left behind, and these differences are used to illustrate the nature of economic growth and dynamism. We also show how Captain America’s story illustrates the nature of inflation and major themes in the provision of public goods and public choice.

The New Zealand domain known as Mount Taranaki is closer to gaining legal personhood alongside Te Urewera under the Te Urewera Act 2014 (noted here) and Te Awa Tupua, a matter discussed in my doctoral dissertation.

A perspective is offered by 'Juristic Personhood For Sacred Natural Sites: A Potential Means For Protecting Nature' by John Studley and William Bleisch in (2018) 24(1) Parks.

The authors comment

 The recognition that ‘other-than-human’ persons can be legal subjects has previously been adopted in forms of customary law but has been denied in most modern jurisdictions until recently. The legal concept of juristic personhood is rooted in jus gentium of Imperial Rome, which was also the basis of ‘public trusts’. Juristic personhood has been expanded in some jurisdictions to include other ‘legal subjects’ with specific rights and obligations. Judges in India, for example, have recognised enspirited idols as having legal status with the same legal rights as human beings ever since the nineteenth century. Recently, several additional jurisdictions have recognised certain spiritual-natural entities as legal persons, making sacred rivers and mountains ‘juristic persons’. In this article we review a number of recent cases from around the world that highlight this evolution of jurisprudence over time. The legal regime of juristic personhood may be an effective tactic for safeguarding enspirited sacred natural sites, because it conceptually resonates with the animistic world-view and relational ontologies of many Indigenous peoples. Further study (and litigation) is required for such an approach to become widely recognised, but it could become an effective tool for conservation of nature within community-conserved areas and protected areas.

 They argue

With the realisation that loss of biodiversity and ecosystem services have become global crises (Ceballos et al., 2015; Ripple et al., 2017), there has been a recognition of the need to vastly increase the area of most landscapes and ecosystems under conservation management (Venter et al., 2014; Butchart et al., 2015; Wilson, 2016). Butchart et al. (2015) and others have pointed out that this will require approaches that go beyond conventional Western conservation frameworks, and have particularly advocated community-based management. Community-conserved areas have considerable potential as another form of area-based conservation, which could be enhanced and better secured for the long-term if they could also be endowed with legal recognition. Indeed, the 11th Aichi Target in the Strategic Plan for Biodiversity 2011–2020, drafted under the Convention on Biological Diversity, mentions “other effective area-based conservation measures” (OECM) as a basis for achieving 2020 targets of protection for ecologically representative areas (CBD, 2010, p. 9). Jonas et al. (2014) have suggested that these OECMs should include Indigenous Peoples’ and Community Conserved Territories and Areas (ICCAs) that effectively conserve nature, even if that conservation is an ancillary outcome, not a primary objective, and only if the governance authority wants them to be recognised as such. 

Many sacred natural sites (SNS) include biodiverse habitats or refugia that benefit from ritual protection in the context of animistic beliefs as distinct from protection motivated by a ‘conservation ethic’ (Kopnina, 2012) or legal prescriptions. While this may not apply to most SNS of mainstream religions, these SNS are often still important for biodiversity conservation. As far as many Indigenous peoples and local communities are concerned, the ‘spirits of place’ or numina that enspirit1 most SNS are endowed with certain rights –‘juristic persons’, in all but name – and these communities regularly invoke the numina enabling them to engage in ‘spiritual governance’ (Studley & Awang, 2016; Studley and Horsley, 2018).

SNS would be most effective as conservation areas if legal recognition was given to complement communitybased customary ritual protection that is already in place. One possible nascent approach is to bestow juristic personhood on selected landscapes. Most conservation initiatives aimed at the legal protection of the environment are undertaken by Homo sapiens acting as the plaintiff (e.g. a person who brings a case against another in a court of law) and beneficiary. Under the aegis of juristic personhood, the numina that inhabit the SNS are themselves granted standing as plaintiffs in the defence of their domain, represented by a guardian, agent or ‘next friend’. 

Historically most legal systems have “denied legal personhood to natural-spiritual entities” (Jonas pers. comm. 29/6/2017). This article highlights recent cases and trends in legislation that seem to be reversing that denial, based on notions of juristic personhood or nature rights. It can be argued that conceptually juristic personhood falls under the rubric of animism predicated on a posthuman world-view and ecocentric ‘rights of nature’ under the aegis of a pan(en)theistic world-view (Berry, 1988; Berry, 1996; McDermott, 2012; Nash, 1989; Zaleha, 2008).

'Environmental Personhood' by Gwendolyn J  Gordon in (201) 43(1) Columbia Journal of Environmental Law 50 comments

Parks are people too, my friend. So quipped an August 2016 headline making reference at once to Mitt Romney's flip commentary on corporations and to recent developments in New Zealand law enabling landscapes to be named as legal persons - that is, as entities possessing juridical rights akin to those of corporations. In the wake of this and other developments of the concept, legal personhood has struck observers as a promising tool for protecting nature-an idea overdue given the now seemingly unexceptional nature of corporate personhood in protecting corporate rights. Far from being the settled, stolid doctrine that its long tenure might have it appear to be, however, corporate personhood is quicksilver; it seems an endlessly adaptable concept. How might we come to understand the environment as a similarly flexible rights-holder in a way that is robustly protective of environmental interests? This Article argues that, as an example of how we came to see a non-human entity as a rights holder, corporate personhood may be a useful tool in moving toward understanding the environment as a rights holder. 

Legal personhood is not binary; it is not a yes-or-no proposition. The differentiation of legal rights and responsibilities starts, not ends, at the question of whether something may or may not be considered a person in the meaning of a statute.' The real issue here is what, given the legal personhood of corporations or the environment, that means for how much that legal, practical, rhetorical entity-that category-for-legal-convenience-should be allowed to claim the rights of other shades of personhood. There is, after all, no such thing as a plain-old person; it is law that defines the categories of persons. 

The development of a concept of corporate personhood in American law was anything but inevitable. Although we are familiar now with "the idea of a corporation having 'its' own rights, and being a 'person' and 'citizen' for so many statutory and constitutional purposes," the idea was perhaps as unsettling to contemporary jurists as that of environmental personhood might sound today. Just as "[t]hroughout legal history, each successive extension of rights to some new entity has been.., a bit unthinkable, so too does their contingency become practically unthinkable after they are normalized. Before environmental personhood becomes unremarkable, and thus unremarked-upon, we would do well to consider some of the contingencies in the development of the personhood concept as applied to corporations. 

Even among the very few jurisdictions that have developed concepts of environmental personhood, conceptions of that "personhood" are diverse. In 2014, Te Urewera, formerly a New Zealand national park, was declared to be a legal entity. The act making this designation transformed the land from government- owned national park to freehold land owned by itself.' The country's Whanganui River followed suit in 2017. Years prior to the movement in New Zealand law, Ecuador proclaimed under its constitution the rights of nature "to exist, persist, maintain and regenerate its vital cycles."" Nature here, instead of being named as a legal person directly, instead is given these rights by analogy to "persons and people." In Bolivia, nature is defined as a juridical entity that "takes on the character of collective public interest." In the United States, a number of local governing bodies promulgated ordinances recognizing the rights of nature. 

These new global legal developments arrive alongside what appears to be a wholesale re-evaluation of the place of human interests in relation to nature. New Zealand's Te Urewera Act in particular is seen to be novel for its changes to the very nature of property ownership. It is an unequivocal rejection of a human-centered rights regime for protecting nature as property. 

In the end, our capacity to imagine a politics capable of encompassing things and places far outside of human lives or business interests has more to do with how well legal personhood will protect the environment than does any particular deployment of legal arguments for environmental personhood-just as has been the case in the development of the doctrine of corporate personhood in American law. To show why this is so, the Article is arranged as follows. Part II describes recent advances made in the concept of environmental personhood in locations as varied as Bolivia, Ecuador, India, and New Zealand. Part III examines the usefulness of corporate personhood doctrine as an analogy for proponents of the protection of the environment by means of the concept of personhood. Part IV examines the terms of the debate in more detail, considering the development of rights of nature arguments and the stakes of ontological claims regarding divisions between nature and people. Part V considers the significance of holistic theories of environmental protection to discourses of personhood. Finally, the Article offers some conclusions regarding the development of environmental personhood. Legal personhood may come to be as protective for environmental interests as it has been for corporate interests; it can become so by referencing the latter's protean, politically fluid nature.

'The Whanganui River as Te Awa Tupua: Place‐based law in a legally pluralistic society' by Liz Charpleix in (2017) The Geographical Journal comments

A landmark political decision recognising the legal personhood of a river provides insights into how legal pluralism may evolve and how relationships with non‐human nature may be recognised into the future. The decision in respect of the Whanganui River in Aotearoa/New Zealand, although not a legal precedent, has resulted in a new and vital Māori/Pākehā legal arrangement, which, in addressing the injustices of the country's colonial history, may also address environmental challenges such as resource exploitation. Since colonisation in 1840, the Māori of the Whanganui River have been fighting to assert their rights in relation to the river. The 1840 Treaty of Waitangi, made between Māori chiefs and British colonisers as the basis of future governance in Aotearoa/New Zealand, was flawed due to differences between the Māori and English versions of the Treaty. Conflicting expectations regarding the constitution and administration of “law” emerged, as did incompatibilities between Māori and English ontologies, particularly involving interactions between humans and (non‐human) nature. In 1975, a tribunal was established to resolve Māori grievances regarding application of the principles of the Waitangi Treaty. In 1999, the Tribunal settled Claim 167 (known as Wai 167, after the Tribunal), recognising Māori ownership of the Whanganui River. Subsequent negotiations resulted in declaration of the river's legal personhood; the enacting legislation was passed on 20 March 2017. An association of place‐based law and the dominant legal system has been instigated. This paper explores how this less anthropocentric approach, in an era commonly called the “Anthropocene” due to the influence of humans on planet Earth, has a critical role to play in environmental management, particularly in relation to water.

'From Inside the Cage To Outside the Box: Natural Resources as a Platform for Nonhuman Animal Personhood in the U.S. and Australia' by Randall S Abate and Jonathan Crowe in (2017) 5(1) Global Journal of Animal Law 54 comments

Nonhuman animals are currently treated as property under U.S. and Australian law, leaving them open to various kinds of exploitation. There has been a gradual evolution away from this property paradigm in both countries, but significant work remains to ensure that nonhuman animals are afforded adequate legal protections. This article considers the legal avenues available to protect nonhuman animals in the U.S. and Australia, focusing particularly on the attribution of legal personhood. Section 2 of the article reviews attempts by the Nonhuman Rights Project (NhRP) to establish legal personhood protections for nonhuman animals through writ of habeas corpus petitions under U.S. common law. Section 3 surveys the options for recognition of animal personhood under Australian law, discussing issues of standing, habeas corpus, and guardianship models. Section 4 discusses the growing movement to assign legal personhood rights to natural resources. The article proposes that to the extent that natural resources have received legal personhood protection to recognize their inherent value, similar protections should be afforded to animals. In the meantime, habeas corpus, standing, and guardianship theories provide valuable procedural platforms for incremental progress toward protecting nonhuman animals in both the U.S. and Australia.

Big Data Issues

'Lists of Ethical, Legal, Societal and Economic Issues of Big Data Technologies' by Bart Custers, Karolina La Fors, Magdalena Jozwiak, Keymolen Esther, Daniel Bachlechner, Michael Friedewald and Stefania Aguzzi states 

The main aim of this report is to identify and analyse the most relevant ethical, legal, societal and economic issues implicated by the development of big data technologies. With this purpose in mind, each distinctive perspective approaches the technological innovation brought about by big data technologies from a different angle.

First, the ethical perspective contains a comprehensive review of different ethical outlooks: moral philosophy, philosophy of technology and biomedical ethics which provide the guidelines for developing a list of values that are useful to shape an ethical perspective on big data technologies for all stakeholders. The ethical issues mapped particularly concern these values to the extent they are under pressure by the developments in big data technologies. The selection was primarily guided by the views on technology development from a virtue ethics perspective. The ethical issues identified are: human welfare, autonomy, non-maleficence, justice (including equality, non-discrimination, digital inclusion), accountability (including transparency), trustworthiness (including honesty and underpinning also security), privacy, dignity, solidarity and environmental welfare.

Second, the legal perspective focuses on the lists of human rights derived from the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (the EU Charter), which together constitute the main legal framework for the EU in the field of human rights. The rights of particular relevance in the context of big data technologies are the rights to private and family life, personal data protection, freedom of expression and information, freedom of assembly and association, non-discrimination, fair trial and consumer protection. By analysing the normative scope of each of these human rights, looking at both legislation and case law of the European courts and the way in which big data technologies challenge different aspects of each human right at stake, the legal part distils the list of the most relevant issues at the nexus of big data technologies and human rights in the EU. The legal issues identified are: lack of transparency, vagueness of the concept of harm, accountability, proportionality, establishing a regulatory framework and the role of private actors in applying fundamental rights.

Third, the societal perspective makes use of the extensive literature on Societal Impact Assessments (SIA). The analysis of literature was combined with a review of research project propositions and complemented by discussions at two workshops. Societal impact is very generally understood as changes to one or more of a number of elements of social life: people’s way of life, their culture, their community, their political systems, their environment, their health and well-being, their personal and property and their fears and aspirations. The societal issues are mapped by examining different actors and distinctions between these actors, by examining the relationship between data subjects and data controllers and processors, and by examining the risk and impact of potential abuses of big data technologies. On top of the SIA approach, a survey of literature on societal issues in the context of big data technologies identified data culture, data quality, analytics methodology and visualisation as related aspects, essential to understand societal issues and to develop means to address them. The societal issues identified are: unequal access, normalisation, discrimination, dependency, intrusiveness, non-transparency and abusiveness.

Fourth, the economic perspective mainly builds on the societal perspective, as the societal perspective already includes business-to-business and business-to-consumer relations. Societal issues may affect community capital, which may include human capital, social capital, political capital and cultural capital. Natural and physical capital are outside the scope of this deliverable. Due to this close relationship between the societal and the economic perspective, many of the societal issues also include economic aspects and, as such, societal and economic issues cannot always be clearly distinguished. Therefore, the starting point for listing the economic issues are the societal issues derived from the SIA analysis, with an emphasis on economic aspects. There are no economic issues that are not societal issues at the same time. The economic issues identified are: unequal access (including the shortage of a skilled workforce and the creation of a new digital divide), normalisation, discrimination, dependency, intrusiveness, non-transparency and abusiveness.

Observing the four lists of issues identified, the following conclusions can be drawn:

• Although there is some overlap in issues from the different perspectives, this does not mean that the overlapping issues are the same from each perspective – each perspective simply shows different aspects of each issue. 

• The list of issues identified is very extensive, but not exhaustive. The rapid changes in big data technologies call for periodic updates of identification of issues. 

• The issues identified are hard to prioritize, as this may be context-dependent and many issues are interconnected. 

• The issues identified should not only or merely be regarded as problems to be solved, but rather as providing the goals to strive for. An attitude of continuous attention is required for these issues.

These conclusions call for further work. The inventory in this deliverable may require periodic updates after some time. Furthermore, balancing and prioritizing the issues identified is hard in abstracto and may, therefore, call for more detailed, context-specific approaches. Finally, because ma

Invertebrate Bioethics

'Does a painless death harm an invertebrate?' by John Hadley in Australian Zoologist (Forthcoming ) comments

Killing invertebrates is an under-explored area in animal welfare and environmental ethics. While some researchers have argued invertebrates are conscious (Elwood and Apel 2009; Merker 2007; Tye 2000; Crook, Hanlon and Walter 2013; Mather 2008; Klein and Barron 2016), have beliefs and desires (Tye 2000; Carruthers 2005), and that the humane treatment principle ought to be extended to invertebrates (Cooper 2011; Crook 2013; see also Fischer 2016), little attention has been paid to the ethics of painless killing. Does a painless death harm an invertebrate? An answer to this question will inform an answer to the related question: when, if ever, is it wrong to painlessly kill an invertebrate? If death does not harm an invertebrate, then it is unlikely that it will ever be directly wrong to painlessly kill it.  Judgements about the harm of death involve drawing conclusions about the psychological life of an animal. The psychological capacities of an animal determine whether it ought to be included within the scope of the moral theories that are ordinarily drawn upon to answer questions about the ethics of killing.  If death does not harm an invertebrate, then it suggests its psychological life does not warrant that the animal have a place in moral theorizing. 

My aim in this paper is to explain a meaningful sense in which death is a misfortune for an invertebrate. The account presented is a logical implication of bringing together two distinct pieces of theory: the deprivation account of the harm of death (Nagel 1979; McMahan 2002: Chap.2; Palmer 2010: 134-137) and the biocentric ethical theory developed by the New Zealand philosopher, Nicholas Agar (2001).  Combined, the two theories support the following thesis: death harms an invertebrate because it deprives the individual of future biopreference satisfaction. Counter-intuitively, Agar claims that it does not matter whether the organism cares about the satisfaction of the preferences or can conceive of the future in any way. He says: The teleological approach to preferences reveals the diachronic interconnectedness of an organism’s behavioural projects. The lack of an ability to conceive oneself as existing over time does not prevent an organism from having a wide range of behavioural projects that requires its future existence (124). Because Agar identifies the good for an organism with the pursuit of environment-directed goals – ‘biopreferences’ ― (2001: p. 94), death will be bad for that organism because it forecloses the chance to achieve these goals. As we will see below, for Agar what matters is not whether the organisms are sentient and feel pleasure or pain, but whether their biological goals can be specified in a scientifically credible way to be plausible analogues for the preferences or desires of Homo sapiens and other mammals.

Migration and Democratic Self-Determination

Why Does the State Have the Right to Control Immigration?' by Sarah Song in (2017) LVII Nomos comments 

Public debate about immigration proceeds on the assumption that each country has the right to control its own borders.1 The right to control immigration is broadly assumed to flow from state sovereignty. This view is reflected in early American immigration jurisprudence. In establishing the national government’s power over immigration, the U.S. Supreme Court declared, “Every nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominion, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”2 The power to control immigration has been qualified in certain respects by international law, such as in the case of diplomats whose privileges are well-defined in law and over whom the host state’s discretion is limited. However, when it comes to the question of the right to exclude foreigners, international law accords enormous discretion to states. While there are constitutional limits in some countries on how noncitizens already inside the territory can be treated, when it comes to foreigners outside the territory, states may act solely on the basis of considerations of advantage or convenience. As Linda Bosniak has observed, this “hard on the outside and soft on the inside” approach is reflected not only in law but also in many normative theories of migration and citizenship: an ethic of inclusion applies to noncitizens inside the territorial boundaries of the state, while an ethic of exclusion applies to those outside. 

But what, if anything, justifies the modern state’s power over borders? Why, if at all, does the state have the right to control immigration? Many scholars of immigration and citizenship take this question for granted, focusing instead on questions about the substantive content and procedures of immigration law and policy. The reason for this is partly pragmatic. After all, states exist, and they exercise power over borders, whether or not there is a good justification for such exercise. In addition, scholars of migration and citizenship understandably focus their attention on more pressing questions about the substance and procedures of immigration policy. But I also think that many immigration scholars really believe that the state has the right to control its own borders, even if they have not developed the normative grounds of their view. 

How, if at all, might the state’s right to control immigration be justified? This chapter provides an answer in three sections. First, I examine the earliest immigration law cases in U.S. history in order to uncover the underlying assumptions about sovereignty and immigration control that make up the normative foundations of U.S. immigration law. These cases rely on dominant principles of international law of the day, especially the work of Emer de Vattel. I argue that while these cases make clear the great extent of the state’s power over immigration, the leading theorist they rely on falls short of providing adequate normative justification of the state’s right to control immigration. In the second section, I turn to contemporary political theory and philosophy for justifications of the right to control immigration. I critically assess three leading arguments, based on (1) cultural and national identity, (2) freedom of association, and (3) property. In the third and final section, I offer an alternative argument based on the idea of democratic self-determination.

Song argues

We can build on the idea of self-determination to develop an alternative, democratic justification for a state’s right to control immigration. My argument consists of the following claims:

1. A people/demos has the right of self-determination. 

2. The right of self-determination includes the right to control admission and membership. 

3. The demos should be bounded by the territorial boundaries of the state. 

4. Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership.

I briefly elaborate each of these claims in the following. 

(1) A people/demos has the right of self-determination. 

This is the idea of popular sovereignty: that a group of people (the demos) ought to have independent political control over significant aspects of its common life. As a concept in international law, self-determination was seen to apply only to specific territories (first, the defeated European powers; later, the overseas trust territories and colonies) and was understood primarily as a right of secession. It has evolved to be understood as a right of all peoples to participate in democratic processes of governance. The claim of self-determination need not be understood solely as a claim for full political independence or autonomy; it is a claim for some independent political control over significant aspects of its common life. Self-determination implies an independent domain of political control, but it leaves open the domain of control (what sorts of activities and institutions the group controls), the extent of its control over various items in the domain, and the particular political institutions by which the group exercises control over its domain. 

What is the content of the right of self-determination? We can begin by looking to the principles and practices of international law. Thomas Franck suggests three components to the normative entitlement to democracy in international law, which already enjoy “a high degree of legitimacy in international law”: the right to participate in political processes, the right of free political expression, and the right to take part in “periodic and genuine elections which shall be taken by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Together these elements aim at “creating the opportunity for all persons to assume responsibility for shaping the kind of civil society in which they live and work.” Turning to moral and political theory, a more minimalist interpretation of the right of self-determination says it is a right to some say in the making of the policies to which one is subject. For example, one might focus on accountability rather than equal rights of participation, identifying, as Buchanan does, three features that make up a more minimal conception of democracy: (1) representative majoritarian institutions for making most general laws “such that no competent individual is excluded from participation,” (2) the highest government officials are accountable to the people by being subject to removal from office, and (3) there are institutionally secured freedoms of speech, association, and assembly, which are required for reasonably free deliberation. On a more demanding interpretation of self-determination, what is required are equal rights of participation in the governing processes. For example, Thomas Christiano defends the idea of each citizen having “an equal say” in determining the most fundamental public rules. This more demanding interpretation is required for an account of self-determination to count as democratic self-determination. 

What are the grounds of the right of democratic self-determination? To anticipate the objection that democratic self-determination is inherently incompatible with respecting individual human rights, it is important to see that self-determination can be derived from the premise that all persons qua persons should be treated with equal concern and respect (the moral equality principle). There are different views about what it is about persons that is to receive equal respect (e.g., whether it is the well-being/good of persons or the autonomy of persons that is the proper object of equal consideration), which we need not settle here. The moral equality principle is the most common justification offered for basic human rights, rights whose violation poses the most serious threat to the individual’s chances of living a decent human life. The familiar list of basic human rights includes the right to life, the right to security of the person, the right against enslavement and torture, and the right to resources for subsistence, among others. More controversially, the case can be made that respecting the moral equality of persons also requires recognition of the right to democratic governance. Equal consideration requires that all persons be regarded as equal participants in significant political decisions to which they are subject. The right to democracy is an important element of the institutional recognition of the equality of persons. 

Even if one rejects the idea of a human right to democratic governance, there are instrumental reasons for recognizing the right to democracy as a legal aspiration in international law. Democratic governance is of such great instrumental value for the protection of human rights that it ought to be required for any government to be considered legitimate. Evidence in support of this argument is Amartya Sen’s work showing famines are much less likely in democracies, as well as the “democratic peace” literature that suggests democracy is the most reliable form of government for securing peace, which should lessen the violation of human rights. These arguments support the case for understanding the right of self-determination as a right to democratic governance. 

(2) The right of self-determination includes the right to control admission and membership. 

The right of self-determination of a people is the right to independent political control over significant aspects of its common life. As Frederick Whelan puts it, “The admission of new members into the democratic group . . . would appear to be such a matter, one that could not only affect various private interests of the current members, but that could also, in the aggregate, affect the quality of their public life and the character of their community.”95 Walzer goes even further: “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination.”96 I agree with the basic claim made here by Whelan and Walzer but part ways with Walzer on the grounds for self-determination. In my view, the right of self-determination derives not out of a concern to preserve a distinctive cultural identity as discussed earlier, but rather from respecting the right of individuals to be regarded as equal participants in significant political decisions to which they are bound.

(3) The demos should be bounded by the territorial boundaries of the state. 

This is a controversial claim, which I have defended in another essay and which I can only briefly summarize here. I begin with the normative requirements of democracy. A settled conviction about democracy is that it is rule by the people who regard one another as equals. What is required to meet this demand of equal regard? The idea of equality might enter a theory of democracy at different levels: at the level of normative justification and at the level of institutional design. A more complex view of democracy differentiates between normative justification and the institutional requirements of democracy. As a matter of justification, the idea of equality places limits on the sorts of reasons that may be given to explain why we should accept one rather than another conception of fair terms of democratic participation. It is the role of a theory of political equality to connect the normative justification with the institutional requirements of democracy. Political equality is a constitutive condition of democracy. Political equality requires protecting certain equal rights and liberties, as well as ensuring the equal worth of these rights and liberties by providing equal opportunities for political influence. The realization of political equality depends on the existence of a stable bounded demos. The modern state demarcates such a stable demos. The boundaries of the demos are already demarcated according to the boundaries of state membership, but my argument is not that we should accept the state system because it is the status quo. My point is that we have reasons internal to democracy for bounding the demos according to the territorial boundaries of states. What are these democratic reasons? 

First, it is a historically contingent but morally relevant fact that the modern state is the primary instrument for securing the substantive rights and freedoms constitutive of democracy. Without the state, individuals will disagree about what rights they have and when rights are violated. Even if individuals agree on what rights they have, some people may not respect those rights without a common third-party enforcer. A state system of public law establishes a common view of the rights of individuals, and it has the coercive means to enforce that view. The state also provides institutions for adjudicating conflicts among individuals. In short, the institutions of the modern state serve legislative, executive, and judicial functions necessary for the creation and maintenance of the system of rights, including rights of participation. A second reason for bounding the demos according to the boundaries of the territorial state has to do with solidarity. The state is not simply an instrument of decision making or a means to securing rights; it is also a key site of solidarity, trust, and participation. Democratic participation happens not in a vacuum but in relation to a rich network of institutions. Trust plays an indispensable role here. As Charles Tilly has argued, trust “consists of placing valued outcomes at risk of others’ malfeasance, mistakes, or failures.” Trust relationships are those in which people regularly take such risks. Trust is more likely among a group of people who come together repeatedly within a stable infrastructure of institutions and who share a sense of solidarity rooted in a shared political culture. To the degree that individuals integrate their trust networks into political institutions, the greater the stake people have in the successful functioning of those institutions. As Tilly puts its, individuals “acquire an unbreakable interest in the performance of government. The political stakes matter.”100 A shared political culture based on common citizenship is crucial for fostering trust and solidarity, which in turn enables democratic participation. 

A third reason for bounding the demos according to the territorial boundaries of states focuses on the connection between citizens and their political representatives. Democratic representatives must be accountable to a specified demos. As Seyla Benhabib has argued, “Democratic laws require closure precisely because democratic representation must be accountable to a specific people.” A system of territorial representation ensures that political representatives know in advance to whom they are accountable. Territorial representatives know they are acting on behalf of the citizens of their state, and the solidarity based on a common political culture within a state is likely to make representatives more attentive to their constituents than if the constituents were all of humanity constituting a global demos or episodic demoi defined by the “all subjected” or “all affected” principles of democratic legitimacy. In sum, the demos should be bounded by state boundaries because the state (1) is the primary instrument for securing the conditions of democracy, (2) serves as the primary site of solidarity conducive to democratic participation, and (3) establishes clear lines of accountability between representatives and their constituents. 

Among the many objections one might raise is that democratic theory, properly understood, presupposes an unbounded demos. Focusing directly on the issue of border control, Arash Abizadeh has argued that the democratic theory of popular sovereignty is incompatible with “the state sovereignty view,” which says immigration control should be under the unilateral discretion of the state itself. Abizadeh comes to this conclusion by way of two premises: (1) that the demos is, in principle, unbounded, and (2) that democratic justification for a state’s regime of border control is owed to all those subject to the border regime’s coercive power. He defends the first premise by arguing that the contrary thesis (that the demos is inherently bounded) is incoherent. The incoherence is said to stem partly from the “boundary problem” in democracy theory: that democracy “cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes.” As I have argued elsewhere, the claim that democratic theory cannot answer the boundary problem rests on a narrow, proceduralist conception of democracy. If we instead view democracy as a broader set of substantive values and principles, including the principle of political equality, we have reasons internal to democracy for bounding the demos according to the territorial boundaries of the state. Abizadeh argues that the incoherence of attempts to bound the demos also stems from an externality problem: state action, including its border policies, always involves exercising coercive power over members and nonmembers, and such power must be justified to all subjected to coercion. This point connects to Abizadeh’s second major premise that interprets the idea of democratic legitimacy as requiring all those subject to a state’s coercive power to have an equal say in the exercise of that power. While I agree with Abizadeh that justification is owed to all those subject to the coercive power of the state, I disagree with the conclusion that justification must take the form of equal enfranchisement of all members and nonmembers in state policy making. It is plausible to think the demand for justification can be met in other ways that are compatible with democratic principles, such as supporting policies that respect the basic human rights of all those subjected to the policy and supporting the development of democratic institutions in the home states of nonmembers. 

One reason for thinking that it may be compatible with democratic principles to have different responses for members and nonmembers arises from distinguishing coercion and authority in theorizing democratic legitimacy. Abizadeh interprets the principle of democratic legitimacy as requiring justification to all those who are subject to a state’s coercive power. Another way of approaching democratic legitimacy is more attentive to, in Joshua Cohen’s words, “democracy’s institutional character”: democratic legitimacy “arises from the discussions and decisions of members, as made within and expressed through social and political institutions designed to acknowledge their collective authority.” We can recognize that democracy comes in many forms, but “more determinate conceptions of it depend on an account of membership in the people, and correspondingly, what it takes for a decision to be collective—made by citizens ‘as a body.’” The demos is not an aggregation of individuals who happen to be coerced by the same power but rather an enduring collective that makes decisions with binding authority. 

(4) Citizens of a territorial state, in virtue of their role as members of the (territorially defined) demos, have the right to control admission and membership. 

If claims 1 to 3 are plausible, then it is citizens of a territorial state, in virtue of their role as members of the territorially defined demos, who have the right to control borders and membership. Citizens are both the ultimate beneficiaries and the ultimate authors of the exercise of jurisdictional authority, through democratic processes of participation and representation. In contrast to the property justification, the state’s right to control immigration is neither an instance of nor derived from private property rights; it is a jurisdictional right. In contrast to the cultural and nationalist accounts, the state’s right to control immigration is not grounded on a claim about the importance of preserving a distinctive culture or national identity; it rests on the right of members of the territorially defined demos to be self-governing as political equals. Selfgovernance includes not only control over current collective decision making and the future direction of the political system but also the right to regulate admission into the territory and into full membership. In contrast to the freedom of association argument, the state’s right to control immigration does not rest on analogies with marriage, religious associations, and golf clubs, and it does not elide property rights over golf clubs with jurisdictional rights over a state’s territory. The state is importantly disanalogous from other associations not only because state membership is typically nonvoluntary but also because of the state’s indispensable role in meeting the constitutive and instrumental conditions of democratic participation and representation.